-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, STKUIAdXoo4J5Ie92NkMnA0JPgm7loEMGYoitZ/BAAM2bXoeFk78LAjWzEUDuxp5 DzrzZRlOEKSk4Xy3mYlETQ== 0001092306-02-000060.txt : 20020415 0001092306-02-000060.hdr.sgml : 20020415 ACCESSION NUMBER: 0001092306-02-000060 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020306 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: E LOAN INC CENTRAL INDEX KEY: 0001082337 STANDARD INDUSTRIAL CLASSIFICATION: MORTGAGE BANKERS & LOAN CORRESPONDENTS [6162] IRS NUMBER: 770460084 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-56953 FILM NUMBER: 02568179 BUSINESS ADDRESS: STREET 1: 5875 ARNOLD RD., SUITE 100 CITY: DUBLIN STATE: CA ZIP: 94568 BUSINESS PHONE: 9252412402 MAIL ADDRESS: STREET 1: 5875 ARNOLD RD., SUITE 100 CITY: DUBLIN STATE: CA ZIP: 94568 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SCHWAB CHARLES CORP CENTRAL INDEX KEY: 0000316709 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 943025021 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 120 KEARNY STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 4156277000 MAIL ADDRESS: STREET 1: 101 MONTGOMERY ST STREET 2: (SF120KNY-9) CITY: SAN FRANCISCO STATE: CA ZIP: 94104 SC 13D 1 sc13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ______________________ SCHEDULE 13D (RULE 13D-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULES 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A) (AMENDMENT NO. ________)* E-Loan, Inc. ________________________________________________________________________________ (Name of Issuer) Common Stock ($0.001 par value) ________________________________________________________________________________ (Title of Class of Securities) 26861P 10 7 ________________________________________________________________________________ (CUSIP Number) Christopher V. Dodds Executive Vice President and Chief Financial Officer THE CHARLES SCHWAB CORPORATION 120 Kearny Street San Francisco, CA 94108 (415) 627-7000 ________________________________________________________________________________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 24, 2002 ________________________________________________________________________________ (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [X]. NOTE. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. SEE Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 14 Pages) * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, SEE the NOTES). ________________________________________________________________________________ CUSIP NO. 26861P 10 7 13D PAGE 2 OF 14 PAGES ________________________________________________________________________________ ________________________________________________________________________________ 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Charles Schwab Corporation ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] ________________________________________________________________________________ 3 SEC USE ONLY ________________________________________________________________________________ 4 SOURCE OF FUNDS* WC ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, USA ________________________________________________________________________________ 7 SOLE VOTING POWER 0 _____________________________________________________ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 15,272,647 OWNED BY _____________________________________________________ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 0 WITH _____________________________________________________ 10 SHARED DISPOSITIVE POWER 15,272,647 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,272,647 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW(11) EXCLUDES CERTAIN SHARES* Not applicable ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 22.9% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON* HC ________________________________________________________________________________ ________________________________________________________________________________ CUSIP NO. 26861P 10 7 13D PAGE 3 OF 14 PAGES ________________________________________________________________________________ ________________________________________________________________________________ 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Charles Schwab & Co., Inc. ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] ________________________________________________________________________________ 3 SEC USE ONLY ________________________________________________________________________________ 4 SOURCE OF FUNDS* WC ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [X] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, USA ________________________________________________________________________________ 7 SOLE VOTING POWER 0 _____________________________________________________ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 15,272,647 OWNED BY _____________________________________________________ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 0 WITH _____________________________________________________ 10 SHARED DISPOSITIVE POWER 15,272,647 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,272,647 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW(11) EXCLUDES CERTAIN SHARES* Not applicable ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 22.9% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON* BD ________________________________________________________________________________ __________________ PAGE 4 OF 14 PAGES __________________ SCHEDULE 13D ITEM 1. SECURITY AND ISSUER: This Statement on Schedule 13D ("Schedule 13D") relates to the common stock, par value $0.001 per share ("Common Stock") of E-Loan, Inc., a Delaware corporation ("E-Loan"). The address of the principal executive office of E-Loan is 5875 Arnold Road, Suite 100, Dublin, California 94568. ITEM 2. IDENTITY AND BACKGROUND: The Charles Schwab Corporation ("TCSC") is incorporated in the state of Delaware. Its principal business is a financial services holding company. The address of its principal place of business and principal office is: 101 Montgomery Street, San Francisco, California 94104. Charles Schwab & Co., Inc. ("CS&Co") is incorporated in the state of California. Its principal business is the securities brokerage business. The address of its principal place of business and principal office is: 101 Montgomery Street, San Francisco, California 94104. Attached as Schedule A is information concerning each director, executive officer and persons owning more than ten percent of the outstanding common stock of TCSC. Attached as Schedule B is information concerning each director and executive officer of CS&Co. During the last five years, neither TCSC nor CS&Co nor, to the best of their knowledge, any person named in Schedules A or B attached hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, and except as disclosed on Schedule C to this Schedule 13D, neither TCSC nor CS&Co, nor to the best of their knowledge, any person named in Schedules A or B attached hereto has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On April 25, 2000, TCSC entered into a Securities Purchase Agreement (the "Securities Purchase Agreement") with E-Loan and certain other purchasers under which it, on June 15, 2000, acquired 2,666,666 shares of E-Loan Common Stock for $9,999,997.50, the purchase of which it funded out of operating capital. On April 25, 2000, CS&Co entered into a Marketing Agreement with E-Loan, in consideration for which CS&Co received a Stock Purchase Warrant for 6,600,000 shares of E-Loan Common Stock exercisable immediately at an exercise price of $15.00 per share and a Stock Purchase Warrant for 6,500,000 shares of E-Loan Common Stock of which half (3,250,000 shares) became exercisable on April 25, 2001 at an exercise price of $3.75 per share and the other half (3,250,000 shares) becomes exercisable on April 25, 2002 exercise price of $3.75 per share; provided that, this warrant cannot be exercised unless the average of the last five closing prices per share of the E-Loan Common Stock is equal to or greater than $5.75 per share. On June 15, 2000, CS&Co and E-Loan entered into a Registration Rights Agreement for the Stock Purchase Warrant for __________________ PAGE 5 OF 14 PAGES __________________ 6,500,000 shares of E-Loan Common Stock and, on July 15, 2000, CS&Co, TCSC, E-Loan and certain other purchasers entered into a Purchasers Registration Rights Agreement for the shares of E-Loan Common Stock acquired pursuant to the Securities Purchase Agreement and for the Stock Purchase Warrant for 6,600,000 shares. On July 12, 2001, TCSC and E-Loan entered into a Note Purchase Agreement (the "Note Purchase Agreement"), pursuant to which E-Loan borrowed $5,000,000 from TCSC. The loan to E-Loan, which was funded out of operating capital, is represented by an 8%, $5,000,000 note, dated July 12, 2001, payable to TCSC (the "Note"). The Note is convertible into 4,716,981 shares of E-Loan Common Stock at $1.06 per share. If interest accumulates and is unpaid on the Note, the amount of the unpaid interest may also be converted into shares of E-Loan Common Stock at $1.06 per share. The Note automatically converts into shares of E-Loan Common Stock (at a conversion price of $1.06 per share) if the average closing price of the E-Loan Common Stock exceeds $2.12 for any consecutive 90-day period; provided, however, that only 25% of the unpaid principal as of the conversion date may be converted during any consecutive three-month period. The Note is secured by a Security Agreement between TCSC and E-Loan, dated July 12, 2001, and subject to an Amended and Restated Intercreditor Agreement between TCSC and Christian Larsen, dated July 12, 2001, and a Subordination and Intercreditor Agreement between Bank One, N.A., TCSC and E-Loan, dated July 12, 2001. CS&Co terminated the Stock Purchase Warrant for 6,600,000 shares of E-Loan Common Stock exercisable at $15.00 per share in return for receiving a Stock Purchase Warrant for 1,389,000 shares of E-Loan Common Stock exercisable immediately at $5.00 per share. The exchange of warrants on July 12, 2001 was part of the financing arrangement between TCSC and E-Loan. TCSC and E-Loan entered into a Registration Rights Agreement for the new Stock Purchase Warrant and for the shares of E-Loan Common Stock that may be received on the conversion of the Note. In addition to the Note Purchase Agreement described above, TCSC also entered into a Promissory Note with E-Loan dated March 31, 2001, under which TCSC provided $2,000,000 in short-term financing to E-Loan due on or before April 15, 2001. The Promissory Note was secured by a Security Agreement between TCSC and E-Loan dated March 31, 2001 and subject to an Intercreditor Agreement between TCSC and Christian Larsen. E-Loan repaid all principal and interest due under the $2,000,000 Promissory Note. The $2,000,000 Promissory Note did not give TCSC any rights in the Common Stock or any other securities of E-Loan. ITEM 4. PURPOSE OF TRANSACTION. TCSC acquired the 2,666,666 shares of Common Stock on June 15, 2000 for investment purposes. CS&Co received the Stock Purchase Warrants for 6,600,000 and 6,500,000 shares, respectively, of E-Loan Common Stock as consideration for entering into a Marketing Agreement with E-Loan. The Marketing Agreement permits CS&Co to designate a representative for nomination to the Board of Directors of E-Loan for the duration of the Marketing Agreement. On July 12, 2001, TCSC and E-Loan, Inc. entered into the Note Purchase Agreement, pursuant to which TCSC agreed to lend $5,000,000 to E-Loan. The Note is convertible into 4,716,981 shares of E-Loan Common Stock at $1.06 per share. If interest accumulates and is unpaid on the Note, the amount of the unpaid interest may also be converted into shares of E-Loan Common Stock at $1.06 per share. The Note automatically converts into shares of E- __________________ PAGE 6 OF 14 PAGES __________________ Loan Common Stock (at a conversion price of $1.06 per share) if the average closing price of the E-Loan Common Stock exceeds $2.12 for any consecutive 90-day period; provided, however, that only 25% of the unpaid principal as of the conversion date may be converted during any consecutive three-month period. Under the terms of the Note Purchase Agreement, CS&Co terminated the Stock Purchase Warrant for 6,600,000 shares of E-Loan Common Stock exercisable at $15.00 per share in return for receiving a Stock Purchase Warrant for 1,389,000 shares of E-Loan Common Stock exercisable immediately at $5.00 per share. The exchange of warrants of July 12, 2001 was part of the financing arrangement between TCSC and E-Loan. TCSC and CS&Co are considering disposing of and/or converting the Note and the warrants, if such conversion and/or disposition, which might be with E-Loan or third parties, can be consummated on advantageous terms. In addition to these considerations, TCSC and CS&Co intend to review from time to time their investments in E-Loan and depending on such review may consider various alternative courses of action. Depending on prevailing conditions from time to time, including, without limitation, price and availability of shares of E-Loan Common Stock, future evaluations by TCSC and CS&Co of the business and prospects of E-Loan, regulatory requirements, other investment opportunities available to TCSC and CS&Co and general stock market and economic conditions, TCSC and CS&Co may determine to increase their investment or sell all or part of their investment in E-Loan through open-market purchases, privately negotiated transactions or otherwise. As described above in this Schedule 13D, TCSC and CS&Co have considered plans that may result in (a) the disposition and/or conversion of the Note and warrants. Except for these considerations, neither TCSC nor CS&Co, nor to the best of their knowledge, any of the persons named in Schedules A and B to this Schedule 13D, has formulated any other plans or proposals which relate to or would result in: (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving E-Loan or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of E-Loan or any of its subsidiaries; (d) any change in the present Board of Directors or management of E-Loan, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (e) any material change in the present capitalization or dividend policy of E-Loan; (f) any other material change in E-Loan's business or corporate structure; (g) any changes in E-Loan's charter or by-laws or other actions which may impede the acquisition or control of E-Loan by any person; (h) causing a class of securities of E-Loan to be delisted from a national securities exchange or cease to be authorized to be quoted in an interdealer quotation system of a registered national securities association; (i) causing a class of equity securities of E-Loan to become eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) any action similar to those enumerated above. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) TCSC, and its subsidiary, CS&Co, are deemed to be the beneficial owners of 15,272,647 shares of E-Loan Common Stock. This combined beneficial ownership represents approximately 22.9% of the outstanding Common Stock of E-Loan. (b) Number of shares as to which TCSC and CS&Co have: (i) Sole power to vote or to direct the vote: 0 __________________ PAGE 7 OF 14 PAGES __________________ (ii) Shared power to vote or to direct the vote: 15,272,647, of which TCSC owns 2,666,666 shares of E-Loan Common Stock, and CS&Co. has a warrant for 1,389,000 shares of E-Loan Common Stock exercisable at a price of $5.00 per share, CS&Co. has a warrant for 6,500,000 shares of E-Loan Common Stock exercisable at a price of $3.75 per share (provided that, this warrant cannot be exercised unless the average of the last five closing prices per share of the E-Loan Common Stock is equal to or greater than $5.75 per share), and TCSC has a debt instrument convertible into 4,716,981 shares of E-Loan Common Stock at $1.06 per share. (iii) Sole power to dispose or to direct the disposition: 0 (iv) Shared power to dispose or to direct the disposition: 15,272,647, of which TCSC owns 2,666,666 shares of E-Loan Common Stock, and CS&Co. has a warrant for 1,389,000 shares of E-Loan Common Stock exercisable at a price of $5.00 per share, CS&Co. has a warrant for 6,500,000 shares of E-Loan Common Stock exercisable at a price of $3.75 per share (provided that, this warrant cannot be exercised unless the average of the last five closing prices per share of the E-Loan Common Stock is equal to or greater than $5.75 per share), and TCSC has a debt instrument convertible into 4,716,981 shares of E-Loan Common Stock at $1.06 per share. (c) Neither TCSC nor CS&Co has effected any transaction in the E-Loan Common Stock within the past 60 days. (d) No person other than TCSC and CS&Co is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of the E-Loan Common Stock that may be deemed beneficially owned by TCSC or CS&Co. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. (a) SECURITIES PURCHASE AGREEMENT BETWEEN E-LOAN, INC. AND CERTAIN PURCHASERS,INCLUDING THE CHARLES SCHWAB CORPORATION: On April 25, 2000, TCSC entered into this agreement, pursuant to which, on June 15, 2000, it obtained ownership of 2,666,666 shares of E-Loan Common Stock in exchange for $9,999,997.50. (b) MARKETING AGREEMENT BY AND BETWEEN CHARLES SCHWAB & CO.,INC. AND E-LOAN, INC.: On April 25, 2000, CS&Co and E-Loan entered into this agreement to market certain products. CS&Co received warrants on the E-Loan Common Stock as consideration for entering into this agreement and the right to designate a director for nomination to E-Loan's Board of Directors for the duration of this agreement. (c) STOCK PURCHASE WARRANT: This warrant, dated April 25, 2000, permits CS&Co to acquire 6,500,000 shares of E-Loan Common Stock at an exercise price of $3.75 per share, with 3,250,000 shares restricted from exercise until the first anniversary date of the grant and the remaining 3,250,000 shares restricted from exercise until the second anniversary date __________________ PAGE 8 OF 14 PAGES __________________ of the grant (provided that, this warrant cannot be exercised unless the average of the last five closing prices per share of the E-Loan Common Stock is equal to or greater than $5.75 per share), with an exercise term at any time prior to 5:00 p.m. California time on the third anniversary date of the grant. (d) PURCHASERS REGISTRATION RIGHTS AGREEMENT: This agreement, entered into as of July 15, 2000, requires E-Loan to register 10,666,664 shares of E-Loan Common Stock, (2,666,666 of which shares are held by The Charles Schwab Corporation) and a Stock Purchase Warrant, which is no longer outstanding, for 6,600,000 shares of E-Loan Common Stock. (e) REGISTRATION RIGHTS AGREEMENT. This agreement, entered into as of June 15, 2000, requires E-Loan to register 6,500,000 shares pursuant to the Stock Purchase Warrant held by CS&Co for 6,500,000 shares of E-Loan Common Stock. (f) NOTE PURCHASE AGREEMENT BETWEEN E-LOAN, INC. AND THE CHARLES SCHWAB CORPORATION: On July 12, 2001, TCSC agreed to purchase a $5,000,000 note from E-Loan, convertible into 4,716,981 shares of E-Loan's Common Stock at $1.06 per share. Under the terms of the Note Purchase Agreement, the Stock Purchase Warrant held by CS&Co to purchase 6,600,000 shares of E-Loan Common Stock at $15.00 per share terminated, and CS&Co received a new Stock Purchase Warrant for 1,389,000 shares of E-Loan Common Stock exercisable immediately at $5.00 per share. (g) 8% CONVERTIBLE NOTE: On July 12, 2001, E-Loan agreed to pay TCSC the principal sum of $5,000,000 plus interest at the rate of 8% per annum. The note is convertible into 4,716,981 shares of E-Loan's Common Stock at $1.06 per share. The Note automatically converts into shares of E-Loan Common Stock (at a conversion price of $1.06 per share) if the average closing price per share of the E-Loan Common Stock exceeds $2.12 for any consecutive 90-day period; provided, however, that only 25% of the unpaid principal as of the conversion date may be converted during any consecutive three-month period. (h) STOCK PURCHASE WARRANT: This warrant, dated July 12, 2001, permits CS&Co to immediately acquire 1,389,000 shares of E-Loan Common Stock at an exercise price of $5.00 per share with an exercise term at any time prior to 5:00 p.m. California time on July 25, 2003. (i) REGISTRATION RIGHTS AGREEMENT:This agreement, dated July 12, 2001, requires E-Loan to register shares pursuant to the Stock Purchase Warrant for 1,389,000 shares of E-Loan Common Stock and shares of E-Loan Common Stock that may be acquired pursuant to conversion of the 8% Convertible Note. (j) SECURITY AGREEMENT BETWEEN E-LOAN, INC. AND THE CHARLES SCHWAB CORPORATION. This agreement, dated as of July 12, 2001, provides collateral to secure the 8% Convertible Note. __________________ PAGE 9 OF 14 PAGES __________________ ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 99.1. Joint Filing Agreement by and between The Charles Schwab Corporation and Charles Schwab & Co., Inc., dated March 6, 2002. 99.2. Securities Purchase Agreement between E-Loan, Inc. and Certain Purchasers, including The Charles Schwab Corporation, dated April 25, 2000, filed as Exhibit 10.1 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621, and incorporated herein by reference. 99.3.*Marketing Agreement by and between Charles Schwab & Co.,Inc. and E-Loan, Inc., dated April 25, 2000. 99.4. Stock Purchase Warrant, dated April 25, 2000, filed as Exhibit D.1 to the Marketing Agreement filed as Exhibit 10.2 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621, and incorporated herein by reference. 99.5. Purchasers Registration Rights Agreement, dated July 15, 2000, by and among Charles Schwab & Co., Inc., certain Purchasers, including The Charles Schwab Corporation, and E-Loan, Inc. 99.6. Registration Rights Agreement, dated June 15, 2000, by and between Charles Schwab & Co., Inc. and E-Loan, Inc., filed as Exhibit D.3 to the Marketing Agreement filed as Exhibit 10.2 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621, and incorporated herein by reference. 99.7. Note Purchase Agreement by and between E-Loan, Inc. and The Charles Schwab Corporation, dated July 12, 2001, filed as Exhibit 10.12 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621, and incorporated herein by reference. 99.8. 8% Convertible Note, dated July 12, 2001, filed as Exhibit 4.4 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621, and incorporated herein by reference. 99.9. Stock Purchase Warrant, dated July 12, 2001, filed as Exhibit 4.3 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621, and incorporated herein by reference. 99.10.Registration Rights Agreement, dated July 12, 2001, by and between The Charles Schwab Corporation and E-Loan, Inc. filed as Exhibit 10.14 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621, and incorporated herein by reference. 99.11.Security Agreement, dated July 12, 2001, by and between E-Loan, Inc. and The Charles Schwab Corporation filed as Exhibit 10.16 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621, and incorporated herein by reference. * Confidential treatment has been requested with respect to certain portions of this exhibit, which have been omitted therefrom and have been separately filed with the Commission. ___________________ PAGE 10 OF 14 PAGES ___________________ SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 6, 2002 THE CHARLES SCHWAB CORPORATION /s/CHRISTOPHER V. DODDS ____________________________________________ By: Christopher V. Dodds Executive Vice President and Chief Financial Officer CHARLES SCHWAB & CO., INC. /s/CHRISTOPHER V. DODDS ____________________________________________ By: Christopher V. Dodds Executive Vice President and Chief Financial Officer ___________________ PAGE 11 OF 14 PAGES ___________________ SCHEDULE A THE CHARLES SCHWAB CORPORATION DIRECTOR AND EXECUTIVE OFFICERS INFORMATION The following table sets forth the names, addresses and principal occupations of the executive officers, directors and persons owning more than ten percent of the common stock of The Charles Schwab Corporation. Each such person is a citizen of the United States.
__________________________________________________________________________________________________________________________ NAME ADDRESS TITLE/OCCUPATION __________________________________________________________________________________________________________________________ Charles R. Schwab 120 Kearny Street Director and Co-Chief Executive Officer Director and Executive Officer (owns San Francisco, CA 94108 more than 10% of common stock) __________________________________________________________________________________________________________________________ David S. Pottruck 120 Kearny Street Director and Co-Chief Executive Officer Director and Executive Officer San Francisco, CA 94108 __________________________________________________________________________________________________________________________ Nancy H. Bechtle 3560 Washington Street San Francisco Symphony Board of Governors Director San Francisco, CA 94118-1849 __________________________________________________________________________________________________________________________ C. Preston Butcher 4000 East Third Street, 6th Floor Chairman Director Foster City, CA 94404 Legacy Partners __________________________________________________________________________________________________________________________ John Philip Coghlan 120 Kearny Street Vice Chairman and Enterprise President - Executive Officer San Francisco, CA 94108 Retirement Plan Services __________________________________________________________________________________________________________________________ Christopher V. Dodds 120 Kearny Street Executive Vice President and Chief Executive Officer San Francisco, CA 94108 Financial Officers __________________________________________________________________________________________________________________________ Donald G. Fisher One Harrison Street Chairman Director San Francisco, CA 94105 Gap, Inc. __________________________________________________________________________________________________________________________ Anthony M. Frank 1 Maritime Plaza, 8th Floor Chairman Director San Francisco, CA 94111 Belvedere Capital Partners, Inc. __________________________________________________________________________________________________________________________ Lon Gorman 120 Kearny Street Vice Chairman and Enterprise President - Executive Officer San Francisco, CA 94108 Capital Markets and Trading __________________________________________________________________________________________________________________________ Frank C. Herringer 600 Montgomery Street, 16th Floor Chairman Director San Francisco, CA 94111 Transamerica Corporation __________________________________________________________________________________________________________________________ Daniel O. Leemon 120 Kearny Street Executive Vice President and Chief Executive Officer San Francisco, CA 94108 Strategy Officer __________________________________________________________________________________________________________________________ Dawn G. Lepore 120 Kearny Street Vice Chairman - Technology and Executive Officer San Francisco, CA 94108 Administration __________________________________________________________________________________________________________________________ Jeffrey S. Maurer 144 West 47th Street Chairman and Chief Executive Officer, Director and Executive Officer New York, NY 10036 U.S. Trust Corporation __________________________________________________________________________________________________________________________ Stephen T. McLin 3214 Quandt Road Chairman and Chief Executive Officer, Director Lafayette, CA 94569 STM Holdings, Inc. __________________________________________________________________________________________________________________________ Arun Sarin 50 Fremont Street, 26th Floor Chief Executive Officer Director San Francisco, CA 94105-2230 Accel KKR Telecom __________________________________________________________________________________________________________________________ H. Marshall Schwarz 144 West 47th Street Director Director New York, NY 10036 U.S. Trust Corporation __________________________________________________________________________________________________________________________ George P. Shultz 50 Beale Street, 3rd Floor Director Director San Francisco, CA 94105 Bechtel Group, Inc. __________________________________________________________________________________________________________________________ Roger O. Walther 3636 Buchanan Street Chairman and Chief Executive Officer, Director San Francisco, CA 94123 Tusker Corporation __________________________________________________________________________________________________________________________
___________________ PAGE 12 OF 14 PAGES ___________________ SCHEDULE B CHARLES SCHWAB & CO., INC. DIRECTOR AND EXECUTIVE OFFICERS INFORMATION The following table sets forth the names, addresses and principal occupations of the executive officers and directors of Charles Schwab & Co., Inc. Each such person is a citizen of the United States.
______________________________________________________________________________________________________________________ NAME ADDRESS TITLE/OCCUPATION ______________________________________________________________________________________________________________________ Charles R. Schwab 120 Kearny Street Director and Chairman Director and Executive Officer San Francisco, CA 94108 ______________________________________________________________________________________________________________________ David S. Pottruck 120 Kearny Street Director, President and Chief Director and Executive Officer San Francisco, CA 94108 Executive Officer ______________________________________________________________________________________________________________________ John Philip Coghlan 120 Kearny Street Vice Chairman and Enterprise Executive Officer San Francisco, CA 94108 President - Retirement Plan Services ______________________________________________________________________________________________________________________ Christopher V. Dodds 120 Kearny Street Executive Vice President and Chief Executive Officer San Francisco, CA 94108 Financial Officer ______________________________________________________________________________________________________________________ Lon Gorman 120 Kearny Street Vice Chairman and Enterprise Executive Officer San Francisco, CA 94108 President - Capital Markets and Trading ______________________________________________________________________________________________________________________ Daniel O. Leemon 120 Kearny Street Executive Vice President and Chief Executive Officer San Francisco, CA 94108 Strategy Officer ______________________________________________________________________________________________________________________ Dawn G. Lepore 120 Kearny Street Vice Chairman - Technology and Executive Officer San Francisco, CA 94108 Administration ______________________________________________________________________________________________________________________
___________________ PAGE 13 OF 14 PAGES ___________________ SCHEDULE C Effective August 29, 2000, the New York Stock Exchange ("NYSE") approved a stipulation of facts and consent to penalty between CS&Co and the NYSE Division of Enforcement. Without admitting or denying guilt, CS&Co consented to findings by the NYSE that CS&Co violated Exchange Rule 402(A) and Regulation 204.15C3-3(E), Regulation 204.15C3-3, and Exchange Rule 440 and Regulations 204.17A-3 and 204.17A-4. As part of the stipulation, CS&Co agreed to censure, a $300,000 fine, and an undertaking that CS&Co would do the following: complete an appropriate review and report, by a consultant not unacceptable to the Exchange, on CS&Co's current supervisory systems and procedures regarding truncations occurring in firm reports utilized by CS&Co's regulatory accounting and reporting department; adopt and implement any recommendation of the report not already adopted and implemented; and provide copies of the report to the NYSE and CS&Co's Chief Executive Officer and Board of Directors detailing what changes have been implemented since January 1, 1999 to prevent recurrence, along with an affirmation that the changes described in the report have been fully implemented. Effective February 10, 2000, the NYSE approved a stipulation of facts and consent to penalty between CS&Co and the NYSE Division of Enforcement. Without admitting or denying guilt, CS&Co consented to findings by the NYSE that, between approximately August 1995 and January 1998, it violated Exchange Rule 342, Exchange Rule 405(3) and Exchange Rule 440 and SEC Rule 17a-3 and 17a-4 as a result of recordkeeping and supervisory controls related to CS&Co's New Accounts by Phone Program, and it violated Exchange Rule 351(d) as a result of quarterly reporting of customer complaints. As part of the stipulation, CS&Co agreed to censure and a fine of $250,000. Effective May 12, 1999, CS&Co, without admitting or denying liability, consented to an order by the State of Connecticut Department of Banking, Securities and Business Investments Division, finding that CS&Co's written supervisory procedures did not adequately designate supervisory responsibility or describe adequately the supervisory steps to be taken by its employees in connection with the withdrawal of funds from certain customer brokerage accounts for the purpose of paying investment advisory fees to an independent investment advisor in violation of Section 36b-15(a)(2)(K) of the Connecticut Uniform Securities Act. As part of the consent order, CS&Co agreed to a $100,000 fine; the preparation of a report on its internal supervisory and compliance procedures relating to third party investment management fee payment practices to submit to the Division Director, and the payment of the costs of one or more examinations to be conducted by the Division within 24 months. ___________________ PAGE 14 OF 14 PAGES ___________________ INDEX TO EXHIBITS EXHIBIT NUMBER EXHIBIT DESCRIPTION 99.1 Joint Filing Agreement by and between The Charles Schwab Corporation and Charles Schwab & Co., Inc., dated March 6, 2002. 99.2 Securities Purchase Agreement between E-Loan, Inc. and Certain Purchasers, including The Charles Schwab Corporation, dated April 25, 2000 (incorporated by reference to Exhibit 10.1 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621). 99.3* Marketing Agreement by and between Charles Schwab & Co., Inc. and E-Loan, Inc., dated April 25, 2000. 99.4 Stock Purchase Warrant, dated April 25, 2000 (incorporated by reference to Exhibit D.1 to the Marketing Agreement filed as Exhibit 10.2 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621). 99.5 Purchasers Registration Rights Agreement, dated July 15, 2000, by and among Charles Schwab & Co., Inc., certain Purchasers, including The Charles Schwab Corporation, and E-Loan, Inc. 99.6 Registration Rights Agreement, dated June 15, 2000, by and between Charles Schwab & Co., Inc. and E-Loan. (incorporated by reference to Exhibit 10.2 to the 8-K filed by E-Loan with the SEC on May 11, 2000, file no. 000-25621). 99.7 Note Purchase Agreement by and between E-Loan, Inc. and The Charles Schwab Corporation, dated July 12, 2001 (incorporated by reference to Exhibit 10.12 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621). 99.8 8% Convertible Note, dated July 12, 2001 (incorporated by reference to Exhibit 4.4 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621). 99.9 Stock Purchase Warrant, dated July 12, 2001 (incorporated by reference to Exhibit 4.3 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621). 99.10 Registration Rights Agreement, dated July 12, 2001, by and between The Charles Schwab Corporation and E-Loan, Inc (incorporated by reference to Exhibit 10.14 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621). 99.11 Security Agreement, dated July 12, 2001, by and between E-Loan, Inc. and The Charles Schwab Corporation (incorporated by reference to Exhibit 10.16 to E-Loan's 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, file no. 000-25621). * Confidential treatment has been requested with respect to certain portions of this exhibit, which have been omitted therefrom and have been separately filed with the Commission. EX-99.1 ADDITIONAL E 3 ex1.txt JOINT FILING AGREEMENT EXHIBIT 99.1 JOINT FILING AGREEMENT The undersigned agree that the Schedule 13D filed on or about March 6, 2002 and any amendments thereto with respect to beneficial ownership by the undersigned of shares of the Common Stock, par value $0.001 per share, of E-Loan, Inc. is being filed on behalf of each of the undersigned in accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934. Dated: March 6, 2002 The Charles Schwab Corporation By: /s/R. SCOTT MCMILLEN ____________________________ R. Scott McMillen Assistant Corporate Secretary Charles Schwab & Co., Inc. By: /s/R. SCOTT MCMILLEN ____________________________ R. Scott McMillen Assistant Corporate Secretary EX-99.3 ADDITIONAL E 4 ex3.txt MARKETING AGREEMENT EXHIBIT 99.3 Confidential information omitted where indicated by "*" has been filed separately with the Commission pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934. MARKETING AGREEMENT by and between Charles Schwab & Co., Inc. and E-Loan Inc. made and entered into as of April 25, 2000 TABLE OF CONTENTS PAGE RECITALS ..........................................................1 I MARKETING OF E-LOAN SERVICES.........................................2 1.1 Schwab Mortgage Website...................................2 1.2 Access to the Schwab Mortgage Website.....................2 1.3 Customer Service and Loan Service Support.................2 1.4 Restrictions..............................................3 1.5 Additional Promotions ....................................3 1.6 Integrations and Future Integrations .....................3 II OPERATION OF THE SCHWAB MORTGAGE WEBSITE.............................4 2.1 Operation and Maintenance of the Schwab Mortgage Website..4 2.2 Content on the Schwab Mortgage Website....................5 2.3 Advertising and Links.....................................6 2.4 Customer Service Standards................................6 2.5 Responsibilities of E-Loan to Customers ..................6 III E-LOAN SERVICES......................................................6 3.1 Standard of Care..........................................6 3.2 Compliance with Law.......................................7 3.3 Customer Service..........................................7 3.4 Review Rights.............................................7 3.5 Reports to Schwab.........................................8 3.6 Inspection Rights.........................................8 3.7 Schwab Employee Discounts ................................8 IV SCHWAB'S RESPONSIBILITIES............................................9 4.1 Standard of Care..........................................9 4.2 False, Inaccurate and Misleading Statements...............9 4.3 Document Review Rights....................................9 V OWNERSHIP AND EXCLUSIVITY............................................9 5.1 Ownership of Schwab Materials.............................9 5.2 Ownership of E-Loan Materials.............................9 5.3 Right to Own Customer Information........................10 5.4 Treatment of Customer Information........................10 i TABLE OF CONTENTS PAGE 5.5 Exclusive Relationship...................................10 5.6 Independent Development .................................11 VI LICENSE TO USE MARKS................................................11 6.1 License to Use "Schwab Mark".............................11 6.2 License to "E-Loan Marks"................................12 6.3 Ownership and Use of Marks...............................12 VII INDEMNIFICATION.....................................................13 7.1 Indemnification of Schwab................................13 7.2 Notifications and Other Indemnification Procedures.......14 7.3 Settlements..............................................?? viii COMPENSATION TO SCHWAB..............................................16 8.1 Marketing Fee............................................16 8.2 Warrant..................................................16 ix REPRESENTATIONS, WARRANTIES AND COVENANTS...........................17 9.1 Reciprocal Warranties....................................17 9.2 Representations, Warrants and Covenants of E-Loan........17 9.3 E-Loan's Year 2000 Representation........................18 9.4 Schwab's Year 2000 Representation........................18 X CONFIDENTIALITY AND NON-SOLICITATION................................18 10.1 Definition of Confidential Information...................18 10.2 Exclusions...............................................19 10.3 Treatment of Confidential Information....................19 10.4 Compelled Disclosures....................................20 10.5 Return of Confidential Information.......................20 10.6 Solicitation of Schwab Customers.........................21 10.7 Non-Exclusive Equitable Remedy...........................21 XI TERMINATION.........................................................22 11.1 Term.....................................................22 11.2 Termination on Breach of Law.............................22 11.3 Termination on Breach of Agreement.......................22 11.4 Termination Based on Effectiveness of Marketing..........23 11.5 Effects of Termination...................................24 ii TABLE OF CONTENTS PAGE 11.6 Transition Matters.......................................24 XII MISCELLANEOUS PROVISIONS............................................25 12.1 Board Seat...............................................25 12.2 Disclosure of Relationship...............................25 12.3 Confidentiality of Terms and Results.....................25 12.4 Insurance................................................25 12.5 Notices..................................................26 12.6 Application of Law; Venue................................26 12.7 Headings, Articles and Sections..........................26 12.8 Independent Parties......................................27 12.9 Amendments...............................................27 12.10 Number and Gender........................................27 12.11 Counterparts.............................................27 12.12 Attorneys' Fees..........................................27 12.13 Arbitration..............................................27 12.14 Cooperation..............................................28 12.15 Severability.............................................28 12.16 Entire Agreement.........................................28 12.17 Authorship...............................................28 12.18 Force Majeure............................................28 12.19 Assignment...............................................29 iii MARKETING AGREEMENT This Marketing Agreement ("AGREEMENT") is made and entered into as of April 25, 2000 ("EFFECTIVE DATE"), by and between Charles Schwab & Co., Inc., a California corporation located at 101 Montgomery Street, San Francisco, CA 94104 ("SCHWAB") and E-Loan Inc., a Delaware corporation located at 5875 Arnold Road, Suite 100, Dublin, CA 94568 ("E-LOAN"). RECITALS A. Schwab, a securities broker known nationally for its integrity, innovation and customer service, maintains two separate websites through the Internet and the World Wide Web relating to financial services: (1) a Schwab "client only" private website accessible only by Schwab clients (the "PRIVATE WEBSITE"); and (2) a generally accessible public website (the "PUBLIC WEBSITE") (the Private Website and the Public Website are collectively called "SCHWAB WEBSITES"); B. E-Loan, an on-line lender and loan broker which maintains a website (the "E-LOAN WEBSITE") which, among other things, provides domestic and international real estate lending services, auto lending services and other credit arrangements to persons through the Internet and the World Wide Web. E-Loan desires to advertise its domestic real estate lending services as specified in Exhibit A attached hereto (hereafter "E-LOAN SERVICES") on the Schwab Websites and to obtain a license to use the "Schwab" name in connection with marketing certain of E-Loan Services; C. In order to assist E-Loan in the marketing of E-Loan Services, Schwab and E-Loan intend to develop a co-branded website (the "SCHWAB MORTGAGE WEBSITE") on which E-Loan will offer E-Loan Services to Schwab's clients and other persons accessing the Schwab Mortgage Website. Those persons accessing the Schwab Mortgage Website and others seeking E-Loan Services as a result of the marketing efforts supporting this Agreement are hereinafter referred to as "CUSTOMERS". NOW, THEREFORE, in consideration of the respective representations, warranties, covenants, agreements, and conditions contained in this Agreement, and in return for good and valuable consideration, the receipt and sufficiency of which are hereby specifically acknowledged, Schwab and E-Loan hereby agree as follows: TERMS OF AGREEMENT I MARKETING OF E-LOAN SERVICES 1.1 SCHWAB MORTGAGE WEBSITE. E-Loan will create the Schwab Mortgage Website, an internet site accessible by Customers, that will have the "look and feel" of the Schwab Websites including the current navigation header, with graphical reference to E-Loan. The date the Schwab Mortgage Website is readily accessible to the general public via the Schwab Links or otherwise will be referred to as the "LAUNCH DATE". The Schwab Mortgage Website will contain various hypertext links to mortgage tools, services, and articles provided by E-Loan and shall enable Customers to, at a minimum, (a) search for rates for domestic mortgages, home equity loans, and refinancings (collectively "LOAN PRODUCTS") from a variety of lenders; (b) apply online for a Loan Product; and (c) prequalify for a Loan Product. All hypertext links from the Schwab Mortgage Website shall be subject to the prior written approval of Schwab. All tools, services, and articles will have a Schwab Mortgage Website co-branded header, and use the current Schwab navigation header and E-Loan sidebar and footer. Both parties shall agree to the "look and feel" of the Schwab Mortgage Website. 1.2 ACCESS TO THE SCHWAB MORTGAGE WEBSITE. Schwab and E-Loan will cooperate in creating, as soon as possible, a readily accessible link between the Schwab Mortgage Website, the Schwab Websites and, as determined by Schwab, one or more websites developed, owned, licensed, operated, hosted or otherwise controlled by Schwab or any Schwab affiliate. Schwab and E-Loan will also cooperate in creating, as soon as possible, a means to allow Customers access to the Schwab Mortgage Website by e-mail link, as mutually determined by the parties. All methods by which Schwab will link Customers to the Schwab Mortgage Website will be referred to as the "SCHWAB LINKS." Schwab and E-Loan will each pay their own costs for creating and accepting the Schwab Links. The Schwab Links and the Schwab Mortgage Website will include such caveats and disclaimers as Schwab and E-Loan deem necessary or appropriate in the form and location determined by Schwab and E-Loan. 1.3 CUSTOMER SERVICE AND LOAN SERVICE SUPPORT. E-Loan shall provide customer service support to users accessing the E-Loan Services. E-Loan shall create and maintain a toll-free customer service line designed and intended to be for the exclusive use of Customers (the "Mortgage Service Line"). Schwab and E-Loan shall create a "warm transfer" telephone call from a Schwab line to the Mortgage Service Line. In supporting the Mortgage Service Line, E-Loan shall provide Schwab with customer service metrics and policies which are equal or superior to E-Loan's standard metrics and -2- policies. E-Loan shall provide a level of service to Customers that is equal or superior to the level of service E-Loan is then providing to other E-Loan customers. 1.4 RESTRICTIONS. Other than by engaging in the activities described in Sections 1.1, 1.2 and 1.3 above, E-Loan shall not (i) describe Schwab's brokerage services (other than disseminating or posting promotional or advertising materials approved in each case by Schwab pursuant to Section 3.4 below); (ii) become involved in the financial services offered by Schwab, including, without limitation, by: (A) opening, maintaining, administering, or closing customer brokerage accounts with Schwab; (B) soliciting, processing, or facilitating securities transactions relating to customer brokerage accounts with Schwab; (C) extending credit to any Customer for the purpose of purchasing securities through, or carrying securities with, Schwab; (D) answering Schwab client inquiries or engaging in negotiations involving brokerage accounts or securities transactions; (E) accepting Schwab client securities orders, selecting among broker-dealers or routing orders to markets for Schwab execution; (F) handling funds or securities of Schwab clients, or effecting clearance or settlement of client securities trades; or (G) resolving or attempting to resolve any problems, discrepancies, or disputes involving Schwab client accounts or related transactions. E-Loan acknowledges that engaging in any of the above activities may subject E-Loan to broker-dealer registration requirements under the Securities Exchange Act of 1934 and applicable state law. 1.5 ADDITIONAL PROMOTIONS. Schwab shall promote the Schwab Mortgage Website through various written and electronic mediums up to an aggregate expense of [*] Dollars [*] per twelve month period beginning as of the Effective Date year. All such materials will be subject to the review and consent of Schwab and E-Loan pursuant to Sections 3.4 and 4.3. Schwab will invoice E-Loan monthly for the costs of such promotional materials and services, which invoice shall be paid within thirty (30) days. If both parties agree, additional promotional expense above and beyond the annual [*] Dollars [*] may be incurred. E-Loan will be invoiced for these additional costs. 1.6 INTEGRATIONS AND FUTURE INTEGRATIONS. E-Loan shall provide all Schwab clients, whether or not Customers, with access to E-Loan's current and future tools and calculators. Schwab may use any or all of such tools on the Schwab Websites, other websites maintained by Schwab, or any third party website linked to the Schwab Websites or any of its affiliates' websites. Furthermore, it is the intention of the parties to enter into further discussions concerning the potential further integration of Schwab's and E-Loan's technologies, however, nothing contained herein will obligate any party hereto to enter into any arrangement to integrate such technologies. -3- II OPERATION OF THE SCHWAB MORTGAGE WEBSITE 2.1 OPERATION AND MAINTENANCE OF THE SCHWAB MORTGAGE WEBSITE. E-Loan acknowledges and agrees that it will be solely responsible for the operation and maintenance of the Schwab Mortgage Website. E-Loan accepts all responsibility for ensuring that the use of the Schwab Mortgage Website complies with this Agreement and all applicable federal, state, local, foreign and self-regulatory authorities' laws, rules and regulations. Without limiting the generality of the foregoing, E-Loan's responsibilities include, without limitation: (A) MAINTENANCE OF THE SCHWAB MORTGAGE WEBSITE. E-Loan shall maintain the Schwab Mortgage Website, including all necessary computer systems and telecommunications capabilities, in accordance with applicable industry standards and the specifications set forth in the "SYSTEM PERFORMANCE STANDARDS" attached hereto as Exhibit B. (B) SUPPORT SERVICES. E-Loan shall, at its own expense, offer to Customers customer support of the Schwab Mortgage Website which is designed and intended to be exclusively available to Customers. All forms of support available to E-Loan customers shall be made available to Customers (i.e. phone support, live chat, U.S. mail and e-mail). E-Loan customer service representatives supporting the Loan/Call Center referenced in Section 2.4, shall use a script designed by E-Loan and approved by Schwab pursuant to Section 3.4. On-going navigational support for the Schwab Mortgage Website will be provided by E-Loan. Schwab may also request, from time to time, that E-Loan provide additional support features and E-Loan shall consider such requests in good faith. (C) SYSTEM AVAILABILITY AND INTEGRITY. E-Loan shall maintain its systems including the Schwab Mortgage Website so as to be available 99% of the time and to provide 99.9% data integrity. The user interface response time for the Schwab Mortgage Website shall be no less than that experienced on the E-Loan Website. E-Loan shall maintain disaster recovery capabilities so as to resume business functionality within one hour. E-Loan shall maintain a secure server for the operation of the Schwab Mortgage Website so that no Customer information can be read by a third party intercepting the transmission. (D) QUALITY CONTROL. E-Loan will institute quality controls, including suitable testing procedures, to ensure the availability of the Schwab Mortgage Website and to ensure that the Schwab Mortgage Website performs in accordance with the applicable specifications and in a manner consistent with the highest applicable industry standards. Subject to Article X hereof, upon Schwab's reasonable request, Schwab will have the right to review E-Loan's quality controls in order to verify the quality of the -4- Schwab Mortgage Website and the Schwab Mortgage Website's performance. Schwab's possession of information gleaned from such review shall be treated as Confidential Information, as defined below, of E-Loan; and Schwab's right to review and/or possession of such information will not obligate Schwab to establish procedures for dealing with E-Loan's quality controls. (E) PROBLEM RESOLUTION. On discovery of any significant bugs, errors in, or problems with the Schwab Mortgage Website, E-Loan shall notify Schwab within sixty (60) minutes of such discovery and shall advise Schwab when the problem will be resolved or the next update provided. During the term of this Agreement, E-Loan shall promptly resolve all significant bugs or errors in, or problems with the Schwab Mortgage Website reported by Schwab, Customers, other E-Loan customers or discovered by E-Loan, but in any event no longer than twenty-four (24) hours after such problem is reported. If E-Loan reasonably believes that certain bugs or errors cannot be corrected within twenty-four (24) hours, E-Loan shall provide Schwab with (i) a description of the problem, (ii) its proposed solution for the problem, and (iii) a commercially reasonable time estimate for implementation of the solution for the problem within twenty-four (24) hours after the bug or error is reported. 2.2 CONTENT ON THE SCHWAB MORTGAGE WEBSITE. Subject to Section 1.1 hereof, E-Loan shall be solely responsible for creating, editing, reviewing, deleting and otherwise controlling all content that E-Loan posts or otherwise publishes on the Schwab Mortgage Website, including enforcing its rules relating to the posting of content by third parties and clients. In connection with such content, E-Loan represents, warrants and covenants to Schwab that, in connection with the materials published by E-Loan: (A) such content does not and will not infringe or violate the intellectual property rights of any third party; (B) such content does not and will not (i) contain any false, defamatory or offensive material, or (ii) violate any applicable law, rule or regulation; (C) E-Loan has sufficient rights to such content to grant to Schwab and to Customers the rights set forth in this Agreement; and no consent of any third party is necessary for E-Loan to enter into this Agreement; and (D) neither the content nor the Schwab Mortgage Website will contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Prior to creating, editing or deleting any content on the Schwab Mortgage Website, E-Loan shall obtain the written consent of Schwab. -5- 2.3 ADVERTISING AND LINKS. E-Loan shall obtain Schwab's prior written consent before placing any advertising or third party hyperlinks on the Schwab Mortgage Website. 2.4 CUSTOMER SERVICE STANDARDS. E-Loan shall conform to or surpass the following customer service standards: (i) E-Loan's response time in answering phone calls shall be no more than twenty (20) seconds with an abandoned rate of less than 5% measured on a monthly basis; (ii) the length of E-Loan's service calls shall be as long as necessary to satisfy the Customer, with a goal of one-call resolution; (iii) E-Loan and its customer service personnel shall treat the Customers with respect and dignity at all times; (iv) in the event an E-Loan customer service representative is unable to answer a Customer's question during the first phone call, such customer service representative will follow-up on the matter, and within twenty-four (24) hours of the original call, E-Loan will place a return call to such Customer to provide a status update, (v) respond to all Customer e-mails within 24 hours, (vi) maintain a Loan/Call Center with adequate number of staff to support the required customer service metrics and policies under this Agreement, with hours of operation from 5:00 a.m. to 8:00 p.m. PST Monday through Friday and 6:00 a.m. to 6:00 p.m. Saturdays and Sundays, and (vii) respond to all mail requests within 24 hours or less of being processed. E-Loan shall institute written procedures to comply with the above standards. 2.5 RESPONSIBILITIES OF E-LOAN TO CUSTOMERS. E-Loan shall, in the ordinary course of its business, take and process loan applications from Customers, issue loan prequalifications and preapprovals, respond to Customer inquiries, underwrite and make credit decisions on loan applications, arrange and assist Customers with loan closings, consummate and fund loans, perform mortgage broker services where appropriate, provide required disclosures (including without limitation adverse action notices when adverse action is taken by E-Loan on an application), and perform such other mortgage services as are necessary or incident to providing initial Loan Products and mortgage services to Customers obtaining a mortgage loan. E-Loan shall provide a level of service to Customers identical to, or superior to, the level of service E-Loan is then providing to other E-Loan customers. III E-LOAN SERVICES 3.1 STANDARD OF CARE. E-Loan shall conduct its businesses and operations with diligence and care, in conformity with the highest levels of business and ethical standards and in accordance with the terms of this Agreement. E-Loan is knowledgeable of the laws governing the business of E-Loan and E-Loan acknowledges that Schwab is relying on E-Loan to assure compliance with each law, regulation or code affecting the E-Loan -6- Services offered by E-Loan on the Schwab Mortgage Website and the Schwab Links provided by Schwab under this Agreement. 3.2 COMPLIANCE WITH LAW. In connection with the solicitation of Customers and in the processing of applications and the making of real estate loans (and the collection of such loans, if E-Loan should ever engage in such activity), E-Loan shall: (A) comply fully and completely with all applicable federal, state and local laws and regulations, including, without limitation, the federal Consumer Credit Protection Act and Regulation Z, the Equal Opportunity Act and Regulation B, the Real Estate Settlement Procedures Act and Regulation X, the Fair Debt Collections Practices Act, all applicable state statutes, and regulations which are or may be applicable to E-Loan's business, or its use of marketing services provided by Schwab pursuant to this Agreement; (B) not accept applications from, solicit or provide E-Loan Services to any Customer who resides in a state or seeks to obtain a loan secured by property located in a state where: (a) E-Loan may not legally offer E-Loan Services; or (b) Schwab may not legally provide the marketing services or license its name under this Agreement whether by reason of some prohibition, restriction, limitation, license or registration requirement or otherwise; (C) not offer E-Loan Services where they can not legally do so or where the terms of this Agreement would require that Schwab be licensed or would otherwise be restricted, taxed or controlled without Schwab's prior written consent; and (D) in any advertisement, whether or not on Schwab Websites, or in any communication of any kind or nature with any Customer, shall state clearly that the E-Loan Services offered or being provided (including, without limitation those E-Loan Services which may use the Schwab Mark or described on the Schwab Mortgage Website) are being provided by E-Loan and not by Schwab. 3.3 CUSTOMER SERVICE. The terms and conditions of the E-Loan Services offered to Customers will be more favorable than or identical to the terms and conditions of services offered to any other customers of E-Loan. 3.4 REVIEW RIGHTS. E-Loan shall prepare and be responsible for the content of the Schwab Mortgage Website and all other communications with its customers (including Customers) and third parties; PROVIDED, however, that prior to the distribution of any materials that mention Schwab or the Schwab Links to E-Loan's customers (including the Customers) or any third parties, E-Loan shall provide Schwab with an opportunity to review and shall obtain Schwab's prior written consent, which consent may be withheld in Schwab's sole discretion, with respect to those portions of the communication that mention Schwab. -7- 3.5 REPORTS TO SCHWAB. E-Loan will have a continuous obligation to cooperate with any requests for information and/or documents from Schwab or any regulatory body of competent jurisdiction. Specifically, E-Loan agrees to: (A) provide Schwab with a weekly summary report setting forth the data described on Exhibit "C"; and (B) immediately notify Schwab, in writing, of any complaints received relating to the Schwab Mortgage Website or any Customer. 3.6 INSPECTION RIGHTS. E-Loan will maintain complete records which accurately reflect its businesses and operations. Subject to the confidentiality requirements that E-Loan owes to its customers, Schwab will have the right, but not the duty, upon reasonable notice and during regular business hours, of unrestricted access to inspect, review and audit the books and records of E-Loan so as to confirm compliance with its obligations hereunder. Schwab will also have the right, but not the duty, to obtain copies of all written and electronic communications with Customers and such other documents, letters and/or agreements which may be requested by Schwab. The information obtained by Schwab pursuant to this Section 3.6 shall be treated as Confidential Information (as hereinafter defined) of E-Loan. Schwab shall, at all times and upon reasonable notice, have the right but not the obligation, at Schwab's expense, of unrestricted access to inspect, either itself or through its duly authorized representatives, all or any portion of E-Loan's Internet promotions of E-Loan Services to Customers and to: (a) monitor telephonic, electronic and other written and oral communications between E-Loan and Customers; (b) review application, loan processing and loan files; and (c) review any files or records, whether written or in any other media, relating to customer service, Customer comments or Customer complaints. Schwab shall not retain any Customer Information obtained pursuant to this section 3.6 except insofar as is reasonably necessary to evidence possible non-compliance by E-Loan under this Agreement. In the event that a dispute should arise between the parties under the Agreement that requires resolution under section 12.13, the parties shall cooperate so as to mask any Customer-identifying data to be put before the arbitrator. All such monitoring and inspection activities shall comply with all applicable laws and regulations. 3.7 SCHWAB EMPLOYEE DISCOUNTS. E-Loan shall provide employees of Schwab and its affiliates discounts on E-Loan Services for an amount to be agreed upon by both parties. -8- IV SCHWAB'S RESPONSIBILITIES 4.1 STANDARD OF CARE. Schwab shall conduct its businesses and operations with diligence and care, in conformity with the highest levels of business and ethical standards and in accordance with the terms of this Agreement. 4.2 FALSE, INACCURATE AND MISLEADING STATEMENTS. Schwab shall not make any claims, warranties or representations with respect to the Schwab Mortgage Website or E-Loan Services which are false, inaccurate or misleading. 4.3 DOCUMENT REVIEW RIGHTS. Schwab shall prepare and be responsible for the content of all communications with its clients (including Customers) and third parties; PROVIDED, HOWEVER, that prior to the distribution of any materials that mention E-Loan or the Schwab Mortgage Website, Schwab shall provide E-Loan with an opportunity to review and shall obtain E-Loan's written consent, which may be withheld in E-Loan's sole discretion, with respect to those portions of the communication that mention E-Loan or the Schwab Mortgage Website. V OWNERSHIP AND EXCLUSIVITY 5.1 OWNERSHIP OF SCHWAB MATERIALS. As between E-Loan and Schwab, all right, title and interest in and to, and ownership of, all materials delivered by Schwab to E-Loan, including all patent, copyright, trade secret and other intellectual property rights embodied therein, for the purpose of assisting E-Loan in completing its obligations hereunder, including text, graphics, data, source code, flow charts, technical documentation, marketing plans, domain names, trademarks, trade dress rights or other identifying symbols of Schwab (the "SCHWAB MATERIALS") will remain at all times exclusively in Schwab, and E-Loan will not acquire any right, title, or interest therein, and will not use the Schwab Materials in any manner without first obtaining Schwab's express written consent to such use, which may be withheld at Schwab's sole discretion. 5.2 OWNERSHIP OF E-LOAN MATERIALS. As between Schwab and E-Loan, all right, title and interest in and to, and ownership of, all materials delivered by E-Loan to Schwab, including all patent, copyright, trade secret and other intellectual property rights embodied therein, for the purpose of assisting Schwab in completing its obligations hereunder, including text, graphics, data, source code, flow charts, technical documentation, marketing plans, domain names, trademarks, trade dress rights or other identifying symbols of E-Loan (the "E-LOAN MATERIALS") will remain at all times exclusively in E-Loan, and Schwab will not acquire any right, title, or interest therein, -9- and will not use the E-Loan Materials in any manner without first obtaining E-Loan's express written consent to such use, which may be withheld at E-Loan's sole discretion. 5.3 RIGHT TO OWN CUSTOMER INFORMATION. As between Schwab and E-Loan, each party shall retain ownership of the Customer Information (as hereinafter defined) that it independently collects from its own respective customers during the term of this Agreement, which independent collection shall not be deemed to include any information provided by any party hereto to the other. Unless authorized by Schwab in writing, up to the point where a prospective Customer begins filling out an application for a Mortgage Loan, E-Loan will not use or have any rights to any information requested, collected or gathered on-line or otherwise from a prospective Customer who visits the Schwab Mortgage Website or who otherwise contacts E-Loan, other than for the purposes of evaluating real estate loan applications. Further, E-Loan will not have any right to use the Customer Information in any advertising or promotional materials. "CUSTOMER INFORMATION" means all data information pertaining to or identifiable to a Customer, including, without limitation, (i) name, address, zip code, phone number, social security number, birth date, e-mail address, passwords, personal financial information, personal preferences, demographic data, marketing data, credit data or any other identification data, that itself identifies or when tied to the above information, may identify a Customer; (ii) any information that reflects Customers', prospects' or users' interactions with a party's website, including, but not limited to, information concerning computer search paths, any profiles created or general usage data; or (iii) any data otherwise submitted in the process of registering for a party's website (such as name, address, phone number and e-mail address) and data submitted during the course of using a party's website. However, each party may receive or use Customer Information for the purposes contemplated by this Agreement, and if either party learns or obtains any Customer Information of the other party, such party will treat such Customer Information as proprietary and confidential to the other party in accordance with Section 5.4 hereof, whether or not such Customer Information was intentionally disclosed. Subject to the Inspection Rights of Section 3.6, E-Loan shall not share with Schwab, and Schwab will not have any rights to, any Customer Information not already in Schwab's possession that E-Loan receives in connection with a loan application or any inquiry by a Customer about E-Loan's mortgage or other loan products or services, except to the extent a Customer authorizes E-Loan to share such information with Schwab. 5.4 TREATMENT OF CUSTOMER INFORMATION. Without limiting any other warranty or obligation specified in this Agreement, during the term of this Agreement and thereafter in perpetuity, E-Loan will not gather, store, or use Schwab's Customer Information in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any of Schwab's Customer Information to any third party, except as such party may be expressly and reasonably directed to in advance in writing by Schwab. E-Loan represents, covenants, and warrants that it will collect, use and disclose Customer Information belonging to Schwab only in compliance with Schwab's written instructions, -10- including, without limitation, its privacy policies then in effect and all applicable laws (including, but not limited to policies and laws related to spamming, privacy and consumer protection). E-Loan hereby agrees to indemnify and hold harmless Schwab against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Nothing contained herein is intended to prevent E-Loan from making disclosures about its customer base, provided that such information is presented as generalized aggregate information which does not allow for the identification of any individual Customer. E-Loan hereby agrees that it will make disclosures to Customers concerning its customer privacy policies and, in particular, the sharing of customer information. E-Loan will not disclose to any third party the fact that a Customer (or group of Customers) is a Schwab client. 5.5 EXCLUSIVE RELATIONSHIP. During the term of this Agreement, E-Loan shall not enter into any agreement whatsoever relating to providing of E-Loan Services with [*] or any of its respective affiliates ("SCHWAB COMPETITOR"). During the term of this Agreement, Schwab shall not enter into any agreement whatsoever relating to E-Loan Services with [*] or any of their respective affiliates, successors and assigns ("E-LOAN COMPETITORS"). Subject to the other provisions of this Agreement, nothing in this Section 5.5 shall prohibit E-Loan or Schwab from entering into any type of relationship or agreement with any entity other than a Schwab Competitor or E-Loan Competitor, respectively. 5.6 INDEPENDENT DEVELOPMENT. Nothing in this Agreement will limit Schwab's or its affiliates' right to develop and offer products and services that have the same or similar functionality as the Schwab Mortgage Website, provided that Schwab does not use, infringe or misappropriate any of E-Loan's intellectual property rights or Confidential Information. Additionally, subject to Section 5.5, Schwab may obtain services similar to the E-Loan Services from a third party at any time. VI LICENSE TO USE MARKS 6.1 LICENSE TO USE "SCHWAB MARKS". Subject to all the terms and conditions of this Agreement, Schwab hereby grants E-Loan a nonexclusive, non-transferable, non-sublicensable license to use the names, logos, trade names, trade marks and/or service marks of Schwab (collectively "SCHWAB MARKS") solely on the E-Loan Website and Schwab Mortgage Website, and solely in connection with the marketing and promotion of the E-Loan Services. Schwab, in its sole discretion from time to time, may change the appearance and/or style of the Schwab Marks, provided that, unless required earlier by a court order or to avoid potential infringement liability, E-Loan shall have fourteen (14) days' notice to implement any such changes. E-Loan hereby acknowledges and agrees -11- that (i) the Schwab Marks are owned solely and exclusively by Schwab, (ii) except as set forth herein, E-Loan has no rights, title or interest in or to the Schwab Marks and (iii) all use of the Schwab Marks by E-Loan shall inure to the benefit of Schwab. E-Loan agrees not to apply for registration of the Schwab Marks (or any mark confusingly similar thereto) anywhere in the world. E-Loan agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of any Schwab Marks. 6.2 LICENSE TO "E-LOAN MARKS". Subject to all the terms and conditions of this Agreement, E-Loan hereby grants Schwab a nonexclusive, non-transferable, non-sublicensable license to use the names, logos, trade names, trade marks and/or service marks of E-Loan (collectively "E-LOAN MARKS") solely on the Schwab Website and the Schwab Mortgage Website and in connection with the marketing and distribution of information concerning the E-Loan Services to its clients. E-Loan, in its sole discretion from time to time, may change the appearance and/or style of the E-Loan Marks, provided that, unless required earlier by a court order or to avoid potential infringement liability, Schwab shall have fourteen (14) days' notice to implement any such changes. Schwab hereby acknowledges and agrees that, (i) E-Loan has the right to use the E-Loan Marks, (ii) except as set forth herein, Schwab has no rights, title or interest in or to the E-Loan Marks and (iii) all use of the E-Loan Marks by Schwab shall inure to the benefit of E-Loan. Schwab agrees not to apply for registration of the E-Loan Marks (or any mark confusingly similar thereto) anywhere in the world. Schwab agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of any E-Loan Marks. 6.3 OWNERSHIP AND USE OF MARKS. Each party acknowledges that the other has the right to use its respective Marks and agrees that it will take no action to challenge or undermine that party's rights or title to its Marks anywhere in the world. Each party acknowledges that all use of each Mark will inure exclusively to the benefit of the respective owner of such Mark. Each party will cooperate with the other's efforts to protect and register its respective Marks. The licenses granted in Section 6.1 and 6.2 hereof shall be subject to the following additional terms and conditions: (A) each party shall obtain from the other approval in advance of the specific manner and mode in which any Mark licensed under Section 6.1 and 6.2 hereof is used and presented (such as in an advertisement or website); (B) a party may only use the other's Mark in its standard form and style as used or authorized in writing by such party; no other letter(s), word(s), design(s), symbol(s), or other matter of any kind will be superimposed upon, associated with or shown in such proximity to a Mark so as to tend to alter or dilute it, and each party specifically agrees not to combine or associate a Mark with any other Mark; -12- (C) in all advertisements, promotional literature or other printed matter in which the Mark appears, the Mark must be identified as a Mark owned by the respective party, in a form and manner approved by the other party; in accordance with the foregoing, when used in printed materials, the Mark will be footnoted upon its appearance with a legend that such Mark is a Mark or registered Mark of the other party, as appropriate under the circumstances. (D) neither party warrants or represents that the other's use of such Mark will not infringe the rights of other persons. In the event that either party is subject to any claim or action, or learns any facts that make such a claim or action reasonably possible, it will notify the other and the parties will negotiate in good faith a solution, including the adoption by a party of new names or marks to identify itself or its businesses in the territories where problems exist. All such new marks or names will be deemed a Mark for purposes of this Agreement; and (E) each party will maintain the quality of the other's Mark in connection with its usage and placement during the term of this Agreement in a manner consistent with industry practices. Each party reserves the right to monitor the services provided under this Agreement to assure compliance with the standards for the services associated with their respective Marks. VII INDEMNIFICATION 7.1 INDEMNIFICATION OF SCHWAB. E-Loan shall indemnify, defend and hold harmless Schwab and its subsidiaries, affiliated entities, shareholders, representatives, predecessors, beneficiaries, trustees, partners, joint venturers, successors and assigns, and their respective officers, directors, employees, agents and attorneys (collectively, "Indemnified Parties") from and against any and all losses, liabilities, obligations, damages, costs and expenses, whether known, unknown, contingent or inchoate, of any nature whatsoever, including, without limitation, actual attorneys' fees, court costs and other expenses (collectively, "Losses") incurred by Indemnified Parties and shall defend Indemnified Parties against any and all actions, causes of action, claims, demands, rights, suits, and proceedings (collectively, "Claims"), without regard to the validity of such Claims, brought against Indemnified Parties, in connection with or as a result of: (A) acts, representations, practices, or omissions relating to the E-Loan Services, E-Loan's promotional materials or activities, or E-Loan's use of the Schwab Mark; (B) an allegation of any contractual, statutory, common law or equitable claim of any kind or nature arising out of the marketing, sale, advertisement, -13- distribution or provision of any E-Loan Services, including, but not limited to, any claim by a Customer, or other private party or public agency or public official; (C) any breach of any representations or warranties contained herein and any breach or failure of E-Loan to perform any of its covenants or agreements set forth herein; (D) any claim that the promotional materials provided by E-Loan or the advertisements on the Schwab Websites or the Schwab Mortgage Website by E-Loan infringe any of the proprietary rights of a third party or violate any applicable international, national, federal, state and municipal statutes, laws, decrees, rules, ordinances and regulations; (E) the violation by E-Loan of any federal, state, local or foreign law, rule or regulation, including the rules and regulations of applicable self- regulatory agencies; (F) any dishonest, fraudulent, negligent or criminal act or omission on the part of E-Loan's officers, directors, partners, employees, contractors, or agents or customers, including, without limitation, Customers; (G) any complaints raised or losses asserted by any E-Loan customer, including, without limitation, Customers; (H) the breach by E-Loan of any of its warranties, representations or covenants or agreements in this Agreement; (I) any statements, representations, claims or warranties made by E-Loan to its customers, including, without limitation, the Customers, provided that the source of such statements, representations, claims or warranties is not Schwab; or (J) the infringement of any third party's intellectual property rights by Schwab arising out of Schwab's use of E-Loan Materials in a manner authorized and approved by E-Loan. Further, E-Loan agrees to reimburse each Indemnified Party for any and all expenses (including the fees and disbursements of counsel chosen by such Indemnified Party) as such expenses are reasonably incurred by such Schwab Indemnified Party in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 7.1 will be in addition to any liabilities that E-Loan may otherwise have. 7.2 NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES. Promptly after receipt by Schwab under this Article VII of notice of the commencement of any action, Schwab will, if a claim in respect thereof is to be made against E-Loan under this -14- Article VII, notify E-Loan in writing of the commencement thereof, provided, however, to the extent it is not prejudiced as a proximate result of such failure, the omission to notify E-Loan will not relieve E-Loan from any liability which it may have to Schwab for contribution or otherwise than under the indemnity agreement contained in this Article VII. In case any such action is brought against Schwab and Schwab seeks or intends to seek indemnity from E-Loan, E-Loan will be entitled to participate in, and, to the extent that it will elect by written notice delivered to Schwab promptly after receiving the aforesaid notice from Schwab, to assume the defense thereof with counsel reasonably satisfactory to Schwab; PROVIDED, HOWEVER, if the defendants in any such action include both Schwab and E-Loan and Schwab will have reasonably concluded that a conflict may arise between the positions of E-Loan and Schwab in conducting the defense of any such action or that there may be legal defenses available to it and/or other Indemnified Parties which are different from or additional to those available to E-Loan, Schwab will have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of Schwab. Upon receipt of notice from E-Loan to Schwab of the E-Loan's election so to assume the defense of such action and approval by Schwab of counsel, E-Loan will not be liable to Schwab under this Article VII for any legal or other expenses subsequently incurred by such Schwab in connection with the defense thereof unless (i) Schwab will have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that E-Loan will not be liable for the expenses of more than one separate counsel (together with local counsel), approved by E-Loan, representing Schwab who is a party to such action) or (ii) E-Loan will not have employed counsel satisfactory to Schwab to represent Schwab within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel will be at the expense of E-Loan. 7.3 SETTLEMENTS. Under this Article VII, E-Loan will not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, E-Loan agrees to indemnify Schwab against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time Schwab will have requested E-Loan to reimburse Schwab for fees and expenses of counsel as contemplated by Section 7.2 hereof, E-Loan agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than thirty (30) days after receipt by E-Loan of the aforesaid request and (ii) E-Loan will not have reimbursed Schwab in accordance with such request prior to the date of such settlement. E-Loan will not, without the prior written consent of Schwab, effect any -15- settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which Schwab is or could have been a party and indemnity was or could have been sought hereunder by Schwab, unless such settlement, compromise or consent includes an unconditional release of Schwab from all liability on claims that are the subject matter of such action, suit or proceeding. VIII COMPENSATION TO SCHWAB 8.1 MARKETING FEE. In addition to the Warrant being provided by E-Loan to Schwab pursuant to section 8.2, E-Loan shall pay the following to Schwab for its marketing services provided pursuant to the Agreement: For the period between the Launch Date or June 1, 2000, whichever is later, of the Agreement and its first anniversary, the sum of [*] Dollars [*] payable in 12 equal monthly installments commencing on the Launch date and on the first day of each succeeding month; For the period between the first anniversary of the Launch Date, or June 1, 2001, whichever is later and its second anniversary, the sum of [*] Dollars [*] payable in 12 equal monthly installments commencing on the first anniversary of the Launch Date and on the first day of each succeeding month; For the period between the second anniversary of the Launch Date or June 1, 2002, whichever is later, and its third anniversary, the sum of [*] Dollars [*] payable in 12 equal monthly installments commencing on the second anniversary of the Launch Date and on the first day of each succeeding month; and For the period between the third anniversary of the Launch Date or June 1, 2003, whichever is later, and the end of the term of this Agreement, the sum of [*] Dollars [*] payable in 12 equal monthly installments commencing on third anniversary of the Launch Date and on the first day of each succeeding month. 8.2 WARRANT. In consideration of Schwab's entering into this Agreement, E-Loan shall issue to Schwab warrants, dated the date hereof and in the forms attached hereto as Exhibit D-1, to purchase 6.5 million and 6.6 million shares, respectively, of E-Loan's common stock. The warrants shall be issued on the earlier of (a) the date of the closing of the sale of shares of E-Loan common stock pursuant to the Securities Purchase Agreement of even date, or (b) July 31, 2000. At the time of the issuance of the warrants, E-Loan will also enter into registration rights agreements with Schwab in essentially the form of the registration rights agreements attached hereto as Exhibit D-2 (said warrants, the Securities Purchase Agreement and the registration rights agreements are referred to collectively as the "Warrant"). -16- IX REPRESENTATIONS, WARRANTIES AND COVENANTS 9.1 RECIPROCAL WARRANTIES. Schwab and E-Loan each represent and warrant with respect to itself as follows: (a) such party is duly organized, validly existing, in good standing under the laws of the state in which it is organized and has the power and authority to carry on its business as it is now being conducted; (b) such party has the financial resources, personnel and organizational resources to perform its obligations under this Agreement and will notify the other of any change in such party's circumstances that would materially adversely impact its ability to perform its obligations under this Agreement; (c) such party has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; (d) such party's board of directors or its authorized delegate(s) has duly and validly approved the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; (e) no other corporate proceedings on the part of such party are necessary to approve this Agreement and to consummate the transactions contemplated hereby, (f) such party has not employed any broker or finder or incurred any liability for any broker's fees, commissions or finders fees in connection with this Agreement; and (g) this Agreement has been duly executed and delivered on behalf of such party and is a legal and binding obligation of such party enforceable against it in accordance with the terms and conditions of this Agreement, except (i) as the same may be limited by bankruptcy, insolvency, reorganization or other laws or equitable principles relating to or affecting the enforcement of creditors' rights and (ii) that the availability of equitable remedies, including specific performance, is subject to general equitable principles applied at the discretion of a court. 9.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF E-LOAN. E-Loan represents and warrants to Schwab as follows: (A) E-Loan conducts its business only (and solicits business from persons residing in, and whose real property collateral is located) in states where, if licensure or registration is required, it is duly licensed or registered to do so. A list of all of E-Loan's licenses is attached as Exhibit E. E-Loan will maintain all such licenses and registrations in full force and effect during the term of this Agreement. (B) The execution, delivery and performance of this Agreement will not breach, violate, conflict with or result in a default (whether after giving notice, lapse of time or both) under any contract or obligation to which E-Loan is a party. (C) E-Loan will offer and provide its web-based services in accordance with applicable law and in a manner consistent with the generally accepted technical standards and requirements of the World Wide Web and the Internet; (D) there is no injunction, order, judgment or decree imposed upon E-Loan, action, suit or proceeding before any court or governmental agency or body now pending, or, to the best knowledge of E-Loan, threatened against E-Loan which might -17- result in any adverse change in the financial condition or business of E-Loan which might adversely affect its properties or assets which might prevent or have a material adverse effect on the transactions contemplated hereby; and (E) at any time, and from time to time, during the term of this Agreement, E-Loan will execute and deliver such additional documents or instruments, provide Schwab with such additional information and take such other actions as may be reasonably requested by Schwab to carry out the intent and purposes of this Agreement. 9.3 E-LOAN'S YEAR 2000 REPRESENTATION. Without limiting any other representation, warranty or obligation specified in this Agreement, or in any other agreement, E-Loan expressly warrants to Schwab that the Schwab Mortgage Website and all services furnished under this Agreement are, and at all times will be, Year 2000 Compliant (as hereinafter defined). E-Loan further warrants that in providing the Schwab Mortgage Website and other services to Schwab, all of E-Loan's information processing services are, and at all times will be, Year 2000 Compliant. "YEAR 2000 COMPLIANT" means that the Schwab Mortgage Website and services operate and (i) will correctly store, represent, and process (including sort) all dates (including single and multi-currency formulas and leap year calculations), such that errors will not occur when the date being used is in the year 2000, or in a year preceding or following the year 2000; and (ii) will not cause or result in an abnormal termination or ending. E-Loan further warrants that in providing the Schwab Mortgage Website and other services to Schwab, all of E-Loan's information processing services are, and at all times will be, Year 2000 Compliant. 9.4 SCHWAB'S YEAR 2000 REPRESENTATION. Without limiting any other representation, warranty or obligation specified in this Agreement, or in any other agreement, Schwab expressly warrants to E-Loan that all services furnished by Schwab under this Agreement are, and at all times will be, Year 2000 Compliant. Schwab further warrants that in providing such services, all of Schwab's information processing services are, and at all times will be, Year 2000 Compliant. X CONFIDENTIALITY AND NON-SOLICITATION 10.1 DEFINITION OF CONFIDENTIAL INFORMATION. Each party agrees that all information supplied by one party to the other (whether before, on or after the date hereof) including, without limitation, (a) any Customer Information, (b) source code, prices, databases, hardware, software, programs, engine protocols, models, displays and manuals, including, without limitation, the selection, coordination and arrangement of the contents thereof, and (c) any unpublished information concerning research activities and plans, marketing or sales plans, pricing or pricing strategies, operational techniques, strategic plans, the identity of Customers and Customer contacts, Customer data and unpublished financial information, including information concerning revenues, profits -18- and profit margins, will be deemed confidential and proprietary to the supplying party ("CONFIDENTIAL INFORMATION"). 10.2 EXCLUSIONS. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (A) has been published or is published hereafter, unless such publication is a breach of this Agreement or a similar confidential disclosure agreement; (B) was already known to the receiving party prior to being disclosed by or obtained from the other party as evidenced by written records kept in the ordinary course of business of, or by proof of actual use by, the receiving party; (C) has been or is hereafter rightfully received by the receiving party from a third person without restriction or disclosure and without breach of this Agreement; or (D) has been independently developed by the receiving party as evidenced by the receiving party's written records kept in the ordinary course of business. It will be presumed that any Confidential Information in a receiving party's possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the receiving party to prove otherwise by records and documentation. 10.3 TREATMENT OF CONFIDENTIAL INFORMATION. Each party recognizes the importance of the other's Confidential Information. In particular, each party recognizes and agrees that Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 10.3 and elsewhere in this Agreement. Accordingly, each party agrees as follows: (A) each party will hold any and all Confidential Information it obtains in the strictest confidence and will use and permit the use of Confidential Information solely for the purposes of this Agreement (the "PERMITTED PURPOSES"); (B) each party may disclose or provide access to its responsible employees, and may make copies of, Confidential Information only to the extent reasonably necessary to carry out the Permitted Purposes; (C) each party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, use or disclosure of Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to and agreements with employees and agents to -19- ensure that such employees and agents protect the confidentiality of such Confidential Information. Each party will expressly instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, customers, subcontractors or consultants, without the other's prior written consent; (D) each party, at its own expense, will take all steps, including, without limitation, the initiation and prosecution of actions at law or in equity, necessary or appropriate to prevent use or disclosure, and upon any unauthorized disclosure further unauthorized disclosure or use of which it becomes aware, of any Confidential Information received or obtained by it, except as expressly permitted by the terms of this Agreement; (E) neither party will make any use whatsoever at any time of the other's Confidential Information, except as expressly authorized in this Agreement; and (F) each party will notify the other immediately of any unauthorized disclosure or use of Confidential Information of which it becomes aware, and will cooperate with that party to protect all proprietary rights in, and ownership of, its Confidential Information. 10.4 COMPELLED DISCLOSURES. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the receiving party, the receiving party may disclose Confidential Information in accordance with such law, order or requirement, subject to the following conditions: (a) as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information or Customer Information pursuant thereto, the receiving party will, to the extent permitted under applicable law, so notify the other party in writing and, if permitted by law, the receiving party will provide the other party with notice not less than five (5) business days prior to the required disclosure; (b) the receiving party will use reasonable efforts not to release Confidential Information or Customer Information pending the outcome of any measures taken by the other party to contest, otherwise oppose or seek to limit such disclosure by the receiving party and any subsequent disclosure or use of Confidential Information or Customer Information that may result from such disclosure; and (c) the receiving party will cooperate with the other party regarding such measures. Notwithstanding any such disclosure, the receiving party will not affect its obligations hereunder with respect to Confidential Information or Customer Information so disclosed. 10.5 RETURN OF CONFIDENTIAL INFORMATION. Upon the disclosing party's written request or upon expiration or termination of this Agreement for any reason, the receiving party will promptly: (A) return or destroy, at the disclosing party's option, all originals and copies of all documents and materials it has received containing the disclosing party's information; and -20- (B) deliver or destroy, at the disclosing party's option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the receiving party prepared under its direction or at its request from the documents and/or materials referred to in subparagraph (a), and provide a written statement to the disclosing party certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to the disclosing party or destroyed, as requested by the disclosing party. 10.6 SOLICITATION OF SCHWAB CUSTOMERS. During the term of this Agreement and continuing for the period set forth in the immediately following sentence, E-Loan agrees not to and shall not (without Schwab's prior written consent), directly or indirectly, target, solicit or otherwise communicate with Customers as such, on behalf of itself or any third party, including, but not limited to, on behalf of entities that provide brokerage or financial services in direct competition with Schwab. The obligations set forth in the preceding sentence shall: (i) continue in perpetuity with respect to targeting, solicitations and communications made on behalf of third parties, and (ii) continue for a period of two (2) years after the termination of this Agreement with respect to targeting, solicitations and/or communications made on behalf of E-Loan or its affiliates. E-Loan agrees that, during the term of this Agreement and in perpetuity thereafter, it will not use or sell to others lists containing information obtained in connection with this Agreement about any Schwab clients. The foregoing will not prohibit E-Loan from targeting, soliciting, or otherwise communicating generally with E-Loan's clients, other than Customers, in a manner that does not mention, refer to, or otherwise allude to Schwab, Customers, or Schwab clients, either directly or indirectly. 10.7 NON-EXCLUSIVE EQUITABLE REMEDY. Each party acknowledges and agrees that due to the unique nature of Confidential Information, including Customer Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow a party or third parties to unfairly compete with the other party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable relief from a court of competent jurisdiction in addition to whatever remedies either party may have at law or in equity before a panel of arbitrators appointed in accordance with Section 12.13 hereof and to be indemnified by the other party from any loss or harm, including, without limitation, lost profits and attorneys' fees, in connection with any breach or enforcement of such party's obligations hereunder or the unauthorized use or release of any such Confidential Information. Each party will notify the other in writing immediately upon the occurrence of any such unauthorized release or other breach. Any breach of this Article X will constitute a material breach of this Agreement and, notwithstanding Section 11.3, hereof be grounds for immediate termination of this Agreement at the exclusive discretion of the non-breaching party. -21- XI TERMINATION 11.1 TERM. This Agreement will be effective when signed by all parties (the "EFFECTIVE DATE") and will continue in full force through and until the end of four (4) years after the Launch Date unless terminated earlier as set forth herein. 11.2 TERMINATION ON BREACH OF LAW. If E-Loan is in material default under any rule, order, determination, ordinance or law of any federal, state, local, foreign or self-regulatory authority and is not in good faith contesting such default, Schwab may terminate this Agreement at any time thereafter. If Schwab is in material default under any rule, order, determination, ordinance or law of any federal, state, local, foreign or self-regulatory authority and such default materially impairs its ability to perform its obligations hereunder, E-Loan may terminate this Agreement at any time thereafter. 11.3 TERMINATION ON BREACH OF AGREEMENT. If an Event of Default (as hereinafter defined) occurs under this Agreement, and if, within thirty (30) days after the non-defaulting party has given the defaulting party notice of the Event of Default, the defaulting party has not cured such default or, if the default cannot reasonably be cured within such time period, the non-defaulting party may, at its option, terminate this Agreement at any time thereafter. Each of the following will constitute an "EVENT OF DEFAULT" under this Agreement: (A) any party substantially fails to perform or observe any term, covenant or undertaking in this Agreement; or (B) any party informs the other party of its intention not to perform or observe a term, covenant or undertaking of this Agreement; or (C) any warranty, representation or other statement made by or on behalf of one party and contained in this Agreement or in any other document furnished in compliance with or in reference to this Agreement is on the date made, or later proves to be, false, misleading or untrue in any material respect; or (D) any party seeks protection under the United States Bankruptcy Code or similar protection from creditors, or bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings will be instituted by or against the defaulting party and not dismissed; or (E) E-Loan shall fail to give access to Schwab to E-Loan's records pursuant to the provisions hereof to Schwab or its authorized representatives for the purposes permitted hereunder; or (F) E-Loan shall fail to comply with any laws, regulations or, voluntary industry standards as provided in Article III or if any governmental agency or -22- other body, office or official vested with appropriate authority finds that the E-Loan or the E-Loan Services do not comply with applicable law, regulations or standards; or (G) E-Loan does not commence in good faith to provide E-Loan Services to Customers; or (H) Schwab, in good faith, determines that E-Loan is failing to provide adequate service to the Customers; or (I) E-Loan is the subject of press or similar mass market media, which Schwab determines, in good faith, to be detrimental to providing E-Loan Services or the use of the Mark; or (J) E-Loan shall use the Schwab Marks in contravention of its license for use; or (K) E-Loan undergoes a substantial change of management or a change in control (for purposes of this Section, "change of control" shall mean (i) the consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity's securities outstanding immediately after such merger, consolidation or other reorganization is owned by persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization; or (ii) the sale, transfer or other disposition of all or substantially all of the Company's assets.) A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company's incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company's securities immediately before such transaction; or (L) E-Loan has made a material misrepresentation or has omitted to state a material fact necessary to make the statements not misleading; (M) E-Loan shall breach any other agreement in effect between E-Loan on the one hand and Schwab on the other; or (N) If prior to August 31, 2000, E-Loan has not received financing of at least Thirty Million Dollars ($30,000,000) pursuant to the Securities Purchase Agreement of even date between E-Loan and Schwab or an affiliate of Schwab. 11.4 TERMINATION BASED ON EFFECTIVENESS OF MARKETING. E-Loan shall have the right to terminate the Agreement if in the Second or Third Year, the number of pass-throughs by Customers (a pass-through being a visit to the Schwab Mortgage Website by a Customer) does not exceed 50% of the following: Second Year: [*] pass-throughs -23- Third Year: [*] pass-throughs If the minimum submitted pass-throughs set forth above are not exceeded in a year, Schwab and E-Loan will work in good faith to seek to increase the number of pass-throughs. 11.5 EFFECTS OF TERMINATION. Upon any termination of this Agreement: (A) notwithstanding the termination of this Agreement, the provisions set forth in Sections 1.4, 3.1, 3.2, 3.3, 4.1, 4.2, 5.1, 5.2, 5.3, 5.4, 6.3, Article VII, Section 8.2, Article IX, Article X, Sections 11.6, and Article XII (other than Sections 12.1 and 12.18) shall survive and continue in perpetuity; (B) no consideration or indemnity will be payable to E-Loan or Schwab either for loss of profit, goodwill, creation of clientele or other like or unlike items, or for advertising costs, costs of samples or supplies, termination of employees, employees' salaries and other like or unlike items; (C) the parties will follow the procedures for return of Confidential Information set forth in Section 10.5 hereof; the licenses set forth in Sections 6.1 and 6.2 hereof shall terminate and the parties will immediately cease use of the other parties' names and marks, including any Mark associated with the respective links; and (D) neither party will incur any liability whatsoever for any damage (including, without limitation, consequential damages), loss (including, without limitation, loss of profit or goodwill) or expense (including, without limitation, advertising, technology costs or personnel expenses) of any kind suffered by the other arising from or incidental to any termination of this Agreement which complies with the terms of this Agreement whether or not such party is aware of any such damages, losses or expense. (E) Notwithstanding the termination of this Agreement, Schwab shall be entitled to exercise its rights under the Warrant granted pursuant to Section 8.2. 11.6 TRANSITION MATTERS. Prior to the effective date of a termination of this Agreement, E-Loan shall timely and completely perform its obligations hereunder. Upon notice of termination the parties shall negotiate in good faith a transition plan, which shall provide for, among other things, the completion of those loan applications and loan transactions then in hand and in process on the effective date of the termination, the closing of the hyperlinks between the Schwab Websites and the Schwab Mortgage Website and the answering and redirection of telephone calls, e-mails or other communications seeking Schwab products. -24- XII MISCELLANEOUS PROVISIONS 12.1 BOARD SEAT. In support of the marketing arrangement between Schwab and E-Loan created by this Agreement, E-Loan shall nominate a representative of Schwab, to be designated by Schwab (subject to the consent of E-Loan, which consent shall not be unreasonably withheld) to its Board of Directors for the duration of this Agreement. 12.2 DISCLOSURE OF RELATIONSHIP. Subject to Sections 3.4, 4.3 and 12.3 hereof, each party may disclose the existence of the relationship created under this Agreement to any third party. 12.3 CONFIDENTIALITY OF TERMS AND RESULTS. Except as may be required by securities or other applicable law, neither party may disclose any of the terms and conditions of this Agreement to any third party and each party agrees to seek confidential treatment of the terms and conditions of this Agreement in any disclosure required by law. The foregoing shall not prohibit a party from announcing the existence (but not the terms) of the Agreement or the relationship. Furthermore, neither party may disclose to any third party the results of operations and transactions contemplated by this Agreement. 12.4 INSURANCE. E-Loan shall maintain throughout the term of this Agreement, in the amounts set forth, the following insurance policies: (A) Crime Insurance, including employee fidelity insurance and computer crime insurance, insuring against dishonest, fraudulent or criminal acts, including those acts, in a form and with limits sufficient to respond to E-Loan's indemnification to Schwab under Section 7.1(f) of this Agreement, but in any event with limits of at least $10 million per occurrence; (B) Professional Liability Insurance, indemnifying E-Loan for its expenses and legal obligations arising out of claims of negligence in its acts, representations, practices or omissions relating to its services, in a form and with limits sufficient to respond to E-Loan's indemnification to Schwab under Section 7.1(a), (e), (g) and (i) of this Agreement, but in any event with limits of at least $10 million per occurrence and in the aggregate; (C) Commercial General Liability (including Advertising Injury coverage), Automobile Liability, and Umbrella Liability Insurance; in a form and with limits sufficient to respond to E-Loan's indemnification to Schwab under Section 7.1(b) and (g) of this Agreement, but in any event with combined limits of at least $10 million per occurrence and in the aggregate; -25- (D) Intellectual Property Liability Insurance, including coverage for copyright, trademark, and patent liability coverage, in a form and with limits sufficient to respond to E-Loan's indemnification to Schwab under Section 7.1(d) and (j) of this Agreement, but in any event with limits of at least $10 million per occurrence and in the aggregate; (E) All other insurance which Schwab or E-Loan deems appropriate in order to respond to the indemnifications by E-Loan to Schwab. All such insurance policies shall be placed with insurer's having a then-current Best's Rating of at least "A-" and Financial Size Category of at least "X". Policies required under Section 12.4(c) shall name Schwab as an additional insured. E-Loan will provide evidence of policies, including all required renewals thereof, in the form of a Certificate of Insurance to Schwab at least 10 days after to the commencement of this Agreement or to any insurance renewal. Schwab will receive, upon its request, copies of any insurance policy required herein. At Schwab's request, any policy contained herein shall be endorsed to include provision giving Schwab thirty-days written notice from the insurer prior to any cancellation, non-renewal, or material change to the policy. E-Loan represents and warrants that it will maintain insurance policies as set forth in Sections 12.4 (a) through (e) which will cover any claims or losses discovered or made within six (6) years following termination of this Agreement. 12.5 NOTICES. Until changed in accordance with the provisions of this Section 12.5, all notices, notifications, demands and/or requests shall be provided to the parties at the addresses and at facsimile numbers listed in Exhibit F hereto. Any notice, notification, demand or request provided or permitted to be given under this Agreement must be in writing and will have been deemed to have been properly given, unless explicitly stated otherwise, if sent by (a) Federal Express or other comparable overnight courier, (b) approved or certified mail, postage prepaid, return receipt requested, (c) telecopy with confirmation during normal business hours to the place of business of the recipient, or (d) personal delivery with a signed receipt. All notices, notifications, demands or requests so given will be deemed given and received (i) if mailed, seven (7) days after being deposited in the mail, (ii) if sent via overnight courier, the next business day after being deposited, (iii) if telecopied, the next business day after being telecopied, and (iv) if personally delivered, when delivered. 12.6 APPLICATION OF LAW; VENUE. THIS AGREEMENT AND THE APPLICATION OR INTERPRETATION HEREOF, WILL BE GOVERNED EXCLUSIVELY BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. VENUE FOR ANY ACTION RELATING TO THIS AGREEMENT WILL BE MAINTAINED IN SAN FRANCISCO COUNTY, CALIFORNIA. -26- 12.7 HEADINGS, ARTICLES AND SECTIONS. The headings in this Agreement are inserted for convenience only and do not describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. Unless the context requires otherwise, all references in this Agreement to Articles and/or Sections will be deemed to mean and refer to Articles and/or Sections of this Agreement. 12.8 INDEPENDENT PARTIES. Nothing contained herein will be deemed to create or construed as creating a joint venture or partnership between E-Loan and Schwab. Neither E-Loan nor Schwab is hereto, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other. Neither E-Loan nor Schwab has granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other or to bind it in any manner. Further, it is not the intention of this Agreement or of the parties hereto to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing hereinbefore or hereinafter set forth will be construed so as to confer upon any third party or entity other than the parties hereto a right of action under this Agreement or in any manner whatsoever. 12.9 AMENDMENTS. Notwithstanding anything else contained in this Agreement, this Agreement may be amended, supplemented or restated only with the written consent of both parties. 12.10 NUMBER AND GENDER. Where the context so indicates, the masculine includes the feminine and the neuter, the neuter includes the masculine and feminine and the singular includes the plural. 12.11 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which is considered an original and will be binding upon the party who executed the same, but all of such counterparts will constitute the same agreement. 12.12 ATTORNEYS FEES. In the event of any arbitration, proceeding or other action between the parties arising out of this Agreement, the prevailing party shall be entitled to recover actual attorneys' fees, costs and other fees and expenses incurred in connection therewith. 12.13 ARBITRATION. Any controversy with respect to this Agreement, whether arising before or after the Effective Date of this Agreement, between or among any party will be resolved by arbitration. Any arbitration under this Agreement will be conducted in San Francisco, California before a mutually agreeable single arbitrator chosen by the parties. In the event that the parties cannot agree on the choice of a single arbitrator, then each party shall submit the names of two neutral persons, either active members of the State Bar of California or retired California or federal district court jurists who are willing and able to serve as arbitrator, to the presiding judge of the Superior Court in and for the City and County of San Francisco who shall choose an arbitrator from among the nominees. The arbitration will not be administered by the American Arbitration Association but the arbitrator shall follow the Commercial Arbitration Rules -27- of the American Arbitration Association, then applying. The award of the arbitrator will be final and binding on the parties, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction. This agreement to arbitrate does not entitle any party to arbitrate claims that would be barred by the applicable statute of limitations if such claims were brought in a court of competent jurisdiction. If at the time a demand for arbitration is made, the claims sought to be arbitrated would have been barred by the relevant statute of limitations or other time bar, any party may assert the relevant statute of limitations as a bar to the arbitration by applying to any court of competent jurisdiction. The failure to assert such bar by application to a court, however, will not preclude its assertion before the arbitrator. In the event that a Customer initiates an action against Schwab in another forum relating to an Indemnified Claim, then E-Loan agrees to participate as a party in such forum and to be bound by the results thereof. 12.14 COOPERATION. Each party agrees, to the extent called upon by the other to do so, to cooperate with the other party with regard to matters relating to regulatory and compliance matters and threatened or pending litigation or arbitration against the party with regard to activities conducted under this Agreement. 12.15 SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected thereby, and in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be legal, valid and enforceable. 12.16 ENTIRE AGREEMENT. This Agreement and its exhibits (a) constitute the entire agreement between the parties relating to the subject matter hereof, and (b) supersede all previous contracts and agreements between the parties hereto, both oral and written. 12.17 AUTHORSHIP. This Agreement will not be construed in favor of or against either party by reason of the authorship of any provisions hereof. 12.18 FORCE MAJEURE. If either party cannot perform any of its obligations because of any act of God, accident, strike, court order, fire, riot, war, or any other cause not within the party's control (a "FORCE MAJEURE EVENT"), then the non-performing party will: (a) immediately notify the other party; (b) take reasonable steps to resume performance as soon as possible; and (c) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of seven (7) days, notwithstanding Section 11.1 hereof, Schwab may terminate this Agreement by providing written notice to E-Loan to that effect. In the event that by reason of a Force Majeure Event, a Schwab Website becomes inoperative for more than 7 days, there shall be a prorated rebate of the monthly Marketing Fee provided in section 8.1 for the period beyond said 7 days until the restoration of the Schwab Website. In no -28- event will a Force Majeure Event include breach of any year 2000 obligation or warranty in this Agreement, or failures of hardware or software of E-Loan. 12.19 ASSIGNMENT. Neither party may assign its rights or delegate its obligations hereunder without the express written consent of the other party, which consent may not be unreasonably withheld, provided, however, that Schwab may assign this Agreement and all of its rights and obligations hereunder to any Schwab Affiliate upon thirty (30) days prior notice to E-Loan so long as the assignee agrees to abide by the terms and conditions of this Agreement. For purposes of this Agreement, "SCHWAB AFFILIATE" means legal entities which Charles Schwab & Co., Inc. controls, is controlled by, or is under common control with, where "control" means the direct or indirect ownership of at least fifty percent (50%) of the outstanding equity of such entity. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective representatives, successors or assigns. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / -29- IN WITNESS WHEREOF, this Agreement has been executed by the parties on the date first stated. CHARLES SCHWAB & CO., INC. E-LOAN, INC. ("Schwab") ("E-Loan") By: /s/SUSANNE D. LYONS By: /s/CHRISTIAN LARSEN ______________________________ ______________________________ Print Name: Susanne D. Lyons Print Name: Christian Larsen _____________________ ______________________ Title: Chief Marketing Officer Title: Chief Executive Officer ___________________________ ___________________________ Address: 101 Montgomery Street Address: 5875 Arnold Road _________________________ _________________________ San Francisco, CA 94104 Dublin, CA 94568 _________________________ _________________________ -30- EXHIBIT A REAL ESTATE LENDING SERVICES BY E-LOAN o Domestic Real Estate Purchase Financing o Domestic Real Estate Refinancing o Automatic Rate Search for best rate from over 70 Lenders and over 50,000 loan products - Includes Closing Cost Estimates and Product Information o Convenient electronic application via secure server o Cash out Real Estate Equity Domestic Home Equity Loans Domestic Home Equity Lines of Credit o E-Track(sm) - 24 hour information on Mortgage status o On-Line "Chat" Feature - Instant online answers; Speak with an E-Loan representative online o SPECIAL TOOLS TO MANAGE REAL ESTATE DEBT - Rate Watch - Will e-mail consumer when target rate is available - Loan Recommendations - Will make recommendations tailored to consumer's specific needs - Buy vs. Rent Calculator - Payment Calculator - Amortization Calculator - Access to online Credit Report - Market Outlook piece, updated daily o EDUCATIONAL AIDES - Glossary of Real Estate Terms - Home Finance 101 - Overview of Home Financing - FAQ o SPECIAL PRODUCTS - Preapproval Loans - Zero down loans - No Closing Cost Loans - Less than perfect credit options - Avoid PMI with 80/10/10 combination loans - Relocation loans, excluding Schwab employees A-1 EXHIBIT B PERFORMANCE STANDARDS WEB SITE PERFORMANCE AND STANDARDS 1. E-Loan shall provide technical and service level documentation as requested by Schwab to maintain and service the Schwab Links and to respond to inquiries from Customers regarding the Schwab Mortgage Website. Such documentation may include, but is not limited to, online service level commitments, standards, or goals; web availability; and E-Loan customer service practices relating to outages and scheduled maintenance. 2. E-Loan and Schwab shall agree to have business and technical contacts for access to the Schwab Mortgage Website. These contacts should be available (via phone or pager) within 30 minutes during Peak Hours (as defined below). Prior to the launch date for the web-based Schwab Links, the parties shall develop and agree to an appropriate escalation path for problem identification and resolution. 3. Subject to paragraph 5 of this Exhibit, the Schwab Mortgage Website shall be available 24 hours a day, 7 days a week, 365 days a year, excluding scheduled maintenance. E-Loan, however, shall not be responsible for connection and availability problems of particular Customers due to Internet connection, Internet Service Provider, computer and network, or telecommunications problems outside of E-Loan's control. 4. Scheduled maintenance must occur during Off-Peak Hours and be communicated to Schwab within seven (7) days, and at least five (5) business days, prior written notice. Schwab must consent in advance to the scheduled maintenance times outside of Off-Peak Hours, but may not unreasonably withhold, delay, or condition such consent. For the purpose of this Exhibit, "Off-Peak Hours" shall mean between the hours of 11:00 p.m. and 3:00 a.m. PST. "Peak Hours" shall mean any time other than Off-Peak Hours. 5. Overall availability of the Schwab Mortgage Website shall be 99%, not including scheduled maintenance, as calculated over any calendar month. The term "available" means being in a state where a Customer initiates a request and receives an error-free response. Schwab Mortgage Website availability numbers shall be provided to Schwab on a monthly basis. 6. The Schwab Mortgage Website's transaction response time, as determined over any calendar month, should be no more than 8 seconds or as good as the transaction time for a competitive or similar product or offer. Within 30 days after the signing of this B-1 Agreement, the parties shall agree on an appropriate definition of transaction time that shall be used for performance monitoring. 7. E-Loan shall agree to maintain system capacity and infrastructure that provides Customers accessing the Schwab Mortgage Website through the web-based Schwab Links the same performance levels as E-Loan's other customers. 8. E-Loan shall agree to promptly contact Schwab's technical and business groups during an unplanned Outage. For the purpose of this Exhibit, an "Outage" is unanticipated center downtime due to application or network failure. E-Loan shall provide contact information (names/phone numbers/pagers) and in the event of an Outage shall be available to Schwab via phone or pager within 15 minutes during Peak Hours. 9. During an outage, E-Loan shall use its best efforts to remedy the problem as quickly as possible. In the event of a sustained Outage of 30 minutes or longer and when practicable, E-Loan shall implement a mechanism for informing Customers of an Outage situation and providing a consistent "click-flow" for Customers. Within 30 days of the signing of this Agreement, E-Loan shall submit such mechanism or page for Schwab's review and approval. 10. All information transmitted between the Customer and the Schwab Mortgage Website shall use SSL (secure socket layer) technology or other recognized standard providing comparable levels of security. Subject to the confidentiality provisions of this Agreement with reasonable advance notice and upon written request, Schwab shall have the right to perform a security assessment. 11. Schwab may, from time to time, reasonably request enhancements or changes to the Schwab Mortgage Website for E-Loan to implement. Such requests shall be given a "high priority" and be completed in a mutually agreed upon time frame, generally within 10 business days. Expenses for requested changes shall be allocated between the parties as mutually agreed upon at the time of the request. 12. E-Loan shall notify and consult with Schwab prior to making any changes to the infrastructure, format, look and feel, organization, or functionality of the Custom Pages that would be material to the Customer experience. Such changes include, but not are not limited to, alterations relating to the online account application process, online offering memoranda, order entry, and the price and order allocation process. 13. The Schwab Mortgage Website is subject to Schwab approval. The "look and feel" of the Schwab Mortgage Website shall be consistent with the Schwab Website, yet shall clearly signal that the Customer has entered the Schwab Mortgage Website and is no longer at the Schwab Website. B-2 EXHIBIT C REPORTING REQUIREMENTS E-Loan shall provide a written report with respect to Customers to Schwab on the following on a weekly basis: A. CONTACTS/APPLICATIONS/LOANS PROCESSING 1. Number of unique click-throughs 2. Number of applications received through the web 3. Number of applications received by telephone 4. Number of closed loans and average number of days to close 5. Number of loans in the pipeline 6. Percentage of loans approved/declined by reason B. LOAN CHARACTERISTICS 1. Loan size per application 2. Loan size per closed loan 3. Loan product mix (for applications and closed loans) by (a) loan product; (b) refinance vs. purchase; and (c) lender selected C. CUSTOMER SATISFACTION 1. Average service response time 2. Customer satisfaction with representatives 3. Customer satisfaction surveys D. CUSTOMER RESPONSE METRICS 1. Telephone response time a. Average hold time b. Abandoned calls c. Average talk time d. Total calls taken 2. E-Mail response time a. Average response time b. Percentage of pre-drafted responses c. Percentage of specific responses 3. Time for credit approval E. BASIC NAVIGATION/USABILITY ANALYSIS C-1 EXHIBIT D WARRANT AGREEMENT D-1 EXHIBIT E E-LOAN LICENSES Jurisdiction State of Alabama License type & number Exempt from mfg. lic. - HUD approved Since 09/19/1999 Jurisdiction State of Alabama License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of Alaska License type & number Alaska Business License 248980 Since 11/05/1997 Jurisdiction State of Arkansas License type & number Exempt from Mortgage Licensing - Agency Approved Since 03/18/1999 Jurisdiction State of Arkansas License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of California DRE License type & number Real Estate Broker License 01259531 Since 05/13/1999 Jurisdiction State of California License type & number Finance Lender License, File No: 605 2191 (CA); & File No: 603 7246 (FL) Since 02/03/2000 Jurisdiction State of Colorado License type & number Non-supervised state for 1st mortgages Since 11/03/1997 Jurisdiction State of Colorado License type & number Uniform Consumer Credit Code Supervised Lender's License No. 967246 Since 01/26/2000 E-1 Jurisdiction State of Connecticut License type & number First Mortgage Lender/Broker 0007115 Since 10/01/1998 Jurisdiction State of Connecticut License type & number Second Mortgage Lender/Broker 0006783 Since 10/01/1998 Jurisdiction State of Connecticut License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of Delaware License type & number Chapter 21 Mortgage Broker License 113215 Since 07/28/1998 Jurisdiction District of Columbia License type & number Mortgage Lender/Broker License 697 Since 01/01/1998 Jurisdiction District of Columbia License type & number Non-supervised jurisdiction for consumer finance lenders Since Jurisdiction State of Florida License type & number Correspondent Mortgage Lender Lic. 9901087 Since 05/14/1999 Jurisdiction State of Florida License type & number Consumer Finance License 160016 Since 03/08/2000 Jurisdiction State of Georgia License type & number Mortgage Lender License 13189 Since 02/16/1998 Jurisdiction State of Georgia License type & number Non-supervised state for consumer finance lenders Since E-2 Jurisdiction State of Hawaii License type & number Exempt from Mortgage Licensing - HUD approved Since 09/14/1999 Jurisdiction State of Idaho License type & number Mortgage Lender License 1521 Since 03/06/1998 Jurisdiction State of Idaho License type & number Mortgage Lender License # 995 Since 01/10/2000 Jurisdiction State of Illinois License type & number Residential Mortgage License #5538 Since 05/12/1999 Jurisdiction State of Indiana License type & number Loan Broker Registration 96-0082 LB Since 02/17/1998 Jurisdiction State of Iowa License type & number Mortgage Broker & Banker License 619 Since 03/30/1998 Jurisdiction State of Iowa License type & number Consumer Credit Code Notification Since 01/10/2000 Jurisdiction State of Kansas License type & number Mortgage Certificate of Registration 97-471 Since 12/18/1997 Jurisdiction Commonwealth of Kentucky License type & number Exempt from mortgage licensing because E-Loan is a HUD approved mortgagee. Since 09/14/1999 Jurisdiction State of Louisiana License type & number Exempt from licensing - Fannie Mae approved Since 02/25/1998 E-3 Jurisdiction State of Louisiana License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of Maine License type & number Supervised Lender Lic. 1518; Branch Lic. SLB4652 Since 09/25/1998 Jurisdiction State of Maryland License type & number Mortgage Lenders License 6103 Since 03/23/2000 Jurisdiction State of Maryland License type & number Consumer Loan License 887 (CA) Since 03/17/2000 Jurisdiction Commonwealth of Massachusetts License type & number Small Loan Agency License Number SL0778. Certifi- cate 0038434 Since 02/17/2000 Jurisdiction State of Michigan License type & number Registered Mortgage Broker & Lender No. FR0783 Since 10/12/1999 Jurisdiction State of Michigan License type & number Secondary Mortgage Broker/Lender Reg. No. SR-0569 Since 11/08/1999 Jurisdiction State of Minnesota License type & number Residential Mortgage Originator No. MO 20184170 Since 10/28/1997 Jurisdiction State of Mississippi License type & number Non-supervised state for mortgages Since 11/24/1997 Jurisdiction State of Mississippi License type & number Non-supervised state for consumer finance lenders Since E-4 Jurisdiction State of Missouri License type & number Exempt from mtg. lic. - Fannie Mae approved Since 02/25/1999 Jurisdiction State of Missouri License type & number Chapter 367 Small Loan Company License 367-99-574 (CA); 367-99-575 (FL) Since 03/08/2000 Jurisdiction State of Montana License type & number Non-supervised state for mortgages Since 10/20/1997 Jurisdiction State of Nebraska License type & number Mortgage banker License Since 03/02/1998 Jurisdiction State of Nevada License type & number Exempt letter allowing us to originate mtg. Online Since 12/18/1997 Jurisdiction State of New Hampshire License type & number First Mortgage Banker & Broker License No. 6103- MB Since 01/20/2000 Jurisdiction State of New Hampshire License type & number Second Mortgage Home Loan Lender License No. 7712 -MHL Since 01/20/2000 Jurisdiction State of New Mexico License type & number Mortgage Certificate of Exemption/Section 58-21- 6(H) Since 01/27/1998 Jurisdiction State of New Mexico License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of New York License type & number File No. A004496 Since 03/06/1998 E-5 Jurisdiction State of North Carolina License type & number Mortgage Banker No. A 1467 Since 09/23/1998 Jurisdiction State of North Dakota License type & number Money Broker A-0499 Since 03/10/1998 Jurisdiction State of Ohio License type & number Exempt from 1st mtg. Lic. - Fannie Mae approved Since 05/17/1999 Jurisdiction State of Oklahoma License type & number Exempt from Mortgage Licensing - Fannie Mae approved Since 02/25/1999 Jurisdiction State of Oregon License type & number Order to Transact Business Mtg. Bnkr/Br MB/B-1409 Since 02/12/1998 Jurisdiction Commonwealth of Pennsylvania License type & number First Mortgage Banker License No. 1549 Since 07/20/1999 Jurisdiction Commonwealth of Pennsylvania License type & number Secondary Mortgage Lender License No. 1857 Since 07/20/1999 Jurisdiction Commonwealth of Pennsylvania License type & number Consumer Discount Company Licenses 3373 (PA), 3374 (CA), 3375 (FL) Since 02/17/2000 Jurisdiction State of Rhode Island and Providence Plantations License type & number Licensed Lender 99001044 LL; Licensed Mtg. Loan Broker 200010086 LB Since 12/03/1999 E-6 Jurisdiction State of South Carolina License type & number Until Licensed, may lend if don't exceed 12% rate limit Since Jurisdiction State of South Dakota License type & number Mortgage Lender License #4118 ML Since 11/19/1997 Jurisdiction State of South Dakota License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of Tennessee License type & number Residential Lending & Brokerage 0000000375 Since 01/01/1998 Jurisdiction State of Texas License type & number Non-supervised state for 1st mortgages Since 12/06/1997 Jurisdiction State of Utah License type & number Residential First Mortgage Notification Since 01/16/1998 Jurisdiction State of Utah License type & number Consumer Credit Notification Since 01/20/2000 Jurisdiction State of Vermont License type & number Lender 4576 (CA), 4577 (FL), Mtg Brkr 0181 MB(CA) Since 10/06/1998 Jurisdiction Commonwealth of Virginia License type & number Mortgage Lender and Broker License No. MLB-642 Since 12/13/1999 Jurisdiction State of Virginia License type & number Non-supervised state for consumer finance lenders Since E-7 Jurisdiction State of Washington License type & number Mortgage Broker License 510-MB-1007-00 Since 03/02/1998 Jurisdiction State of West Virginia License type & number Non-supervised state for mortgages Since 10/14/1997 Jurisdiction State of West Virginia License type & number Non-supervised state for consumer finance lenders Since Jurisdiction State of Wisconsin License type & number Mortgage Banker Certificate of Registration 1170 Since 09/21/1998 Jurisdiction State of Wyoming License type & number Non-supervised state for mortgages Since 10/15/1997 E-8 EXHIBIT F NOTICES Notices to E-Loan, Inc.: E-Loan, Inc. 5875 Arnold Drive, Suite 100 Dublin, California 94568 Attn: Douglas Galen, Vice President Telephone: (925) 560-2620 Facsimile: (925) 556-2914 With a copy to: Edward A. Giedgowd, Esq. E-Loan, Inc. 5875 Arnold Drive, Suite 100 Dublin, California 94568 Telephone: (925) 560-2631 Facsimile: (925) 803-3503 Notices to Charles Schwab & Co., Inc.: Charles Schwab & Co., Inc. The Schwab Building 101 Montgomery Street San Francisco, CA 94104 Attn: Christopher D. Dodds Executive Vice-President & Chief Financial Officer Telephone: (415) 627-7000 Facsimile: (415) 636-5877 F-1 EX-99.5 ADDITIONAL E 5 ex5.txt PURCHASERS REGISTRATION RIGHTS AGREEMENT EXHIBIT 99.5 PURCHASERS REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of July 15, 2000 by and among Charles Schwab & Co., Inc., a corporation organized under the laws of the State of California ("Schwab"), the Purchasers (as defined below) and E-Loan, Inc., a corporation organized under the laws of the State of Delaware (the "Company"). R E C I T A L S WHEREAS, the Purchasers are acquiring shares of the Company's common stock, $0.001 par value (the "Common Stock"), pursuant to the Securities Purchase Agreement (as defined below); and WHEREAS, the Purchasers, except as set forth in the Securities Purchase Agreement, cannot transfer any Acquisition Shares (as defined below) until six months after the Closing (as defined below); and WHEREAS, the Company is granting a warrant (the "Warrant"), dated April 25, 2000, to Schwab to acquire six million six hundred thousand (6,600,000) shares of the Common Stock (the "Warrant Shares") with an exercise price of $15.00 per share and a term of 39 months; NOW, THEREFORE, in consideration of the mutual promises, representations, warranties and conditions set forth in this Agreement, the parties hereto, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS. For purposes of this Agreement, in addition to the definitions set forth above and elsewhere herein, the following terms shall have the following respective meanings: "ACQUISITION SHARES" shall mean the shares of Common Stock acquired by the Purchasers pursuant to the Securities Purchase Agreement. "CLOSING" shall mean the closing of the purchase of the Acquisition Shares by the Purchasers pursuant to the Securities Purchase Agreement. "COMMISSION" shall mean the United States Securities and Exchange Commission and any successor agency. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "HOLDER" shall mean the Purchasers and Schwab and all transferees or assignees thereof to whom the rights under this Agreement are assigned in accordance with the provisions of Section 8 hereof. "PERSON" shall mean an individual, corporation, partnership, limited partnership, syndicate, person (including, without limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government. "PURCHASERS" shall mean the Purchasers of the Company's Common Stock pursuant to the Securities Purchase Agreement and listed on the signature page thereto. "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act and the declaration or ordering of effectiveness of such registration statement or document. "REGISTRABLE STOCK" shall mean (a) the Acquisition Shares, (b) the Warrant Shares, (c) any shares of Common Stock issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of, any of the Acquisition Shares and/or the Warrant Shares, and (d) any shares of Common Stock issued by way of a stock split of the Acquisition Shares and/or the Warrant Shares referred to in clauses (a) or (b) above. For purposes of this Agreement, any Registrable Stock shall cease to be Registrable Stock when (i) a registration statement covering such Registrable Stock has been declared effective and such Registrable Stock has been disposed of pursuant to such effective registration statement, (ii) such Registrable Stock is sold by a person in a transaction in which the rights under the provisions of this Agreement are not assigned, or (iii) all such Registrable Stock may be sold by any and all Holders pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act without registration under the Securities Act. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "SECURITIES PURCHASE AGREEMENT" shall mean the Securities Purchase Agreement between the Company and the Purchasers, dated April 25, 2000. 2. RESTRICTIVE LEGEND. Each certificate representing Acquisition Shares and Warrant Shares shall, except as otherwise provided in this Section 2, be stamped or otherwise imprinted with a legend substantially in the form set forth in the Securities Purchase Agreement or the 2 Warrant, as applicable. A certificate shall not bear such legend if in the opinion of counsel satisfactory to the Company (it being agreed that Howard, Rice, Nemerovski, Canady, Falk and Rabkin, A Professional Corporation, shall be satisfactory) or the Company shall determine that the securities being sold thereby may be publicly sold without registration under the Securities Act or the transfer of such securities is permitted under the provisions of Rule 144(k) or Rule 144A (or any rule permitting public sale without registration under the Securities Act). 3. REGISTRATION. On or before the four-month anniversary of the Closing, the Company shall prepare and file with the Commission a registration statement on Form S-3 or any successor thereto, signed, pursuant to Section 6(a) of the Securities Act, by the officers and directors of the Company, with respect to all of the Registrable Stock. The Company shall use its reasonable best efforts to register under the Securities Act, for public sale, the shares of Registrable Stock. In connection with this Section 3, the Company shall: (a) cause such registration statement to become effective on or before the six-month anniversary of the Closing and to remain effective through and including the earlier of (i) the time when all of the Registrable Stock has been sold pursuant to such registration statement or (ii) the time when all of the Holders of the Registrable Stock can sell all of the Registrable Stock pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act without registration under the Securities Act. (b) prepare and file with the Commission such amendments and supplements to such registration statement, signed, pursuant to Section 6 (a) of the Securities Act, by the officers and directors of the Company, and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Stock covered by such registration statement; (c) furnish to the Holders such numbers of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and any amendments or supplements thereto) in conformity with the requirements of the Securities Act and such other documents and information as they may reasonably request; (d) use its reasonable best efforts to register or qualify the Registrable Stock covered by such registration statement under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as required by law for the distribution of the Registrable Stock covered by the registration statement; PROVIDED, HOWEVER, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business in or to file a general consent to service of process in any jurisdiction wherein it would not but for the requirements of this paragraph (d) be obligated to do so; and PROVIDED, FURTHER, that the Company shall not be required to qualify such 3 Registrable Stock in any jurisdiction in which the securities regulatory authority requires that any Holder submit any shares of its Registrable Stock to the terms, provisions and restrictions of any escrow, lockup or similar agreement(s) for consent to sell Registrable Stock in such jurisdiction unless such Holder agrees to do so; (e) promptly notify each Holder for whom such Registrable Stock is covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and at the request of any such Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to Holders of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made; (f) enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Stock to be so included in the registration statement; (g) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission; (h) use its reasonable best efforts to list the Registrable Stock covered by such registration statement with any securities exchange on which Holder Common Stock is then listed; and (i) after the effectiveness of the registration statement, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Registrable Stock to be sold, which certificates shall not bear any restrictive legends other than restrictive legends still required to be imposed by the Warrant or the Securities Purchase Agreement. 4. SUSPENSION OF TRADING. Notwithstanding any other provision of this Agreement, the Company shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Stock whenever, and for so long as, in the reasonable judgment of the Company in good faith based upon the advice of counsel satisfactory to the Holders of a majority of the Registrable Stock, there is in existence material undisclosed information or events with respect to the Company (the "SUSPENSION RIGHT") such that the registration statement would contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made. In the event the Company exercises the Suspension Right, such suspension will continue for such period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to the Company or until such time as the registration statement does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein 4 or necessary to make the statements therein not misleading in light of the circumstances under which they were made, each as determined in good faith by the Company. The Company will promptly give the Holders notice, in a writing signed by an executive officer of the Company, of any exercise of the Suspension Right. The Company agrees to notify the Holders promptly upon termination of the Suspension Right. Notwithstanding the foregoing, under no circumstances shall Holder be entitled to exercise the Suspension Right for more than sixty calendar days in any twelve-month period. 5. FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Agreement that the Holders shall furnish to the Company such information regarding themselves, the Registrable Stock held by them, and the intended method of disposition of such securities as the Company shall reasonably request and as shall be required in connection with the action to be taken by the Company. 6. EXPENSES OF REGISTRATION. All expenses incurred in connection with the registration pursuant to this Agreement, including without limitation all registration, filing and qualification fees, word processing, duplicating, printers' and accounting fees (including the expenses of any special audits or "cold comfort" letters required by or incident to such performance and compliance), fees of the National Association of Securities Dealers, Inc. or listing fees, messenger and delivery expenses, all fees and expenses of complying with state securities or blue sky laws, reasonable fees and disbursements of counsel for the Company, and the fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Holders holding a majority of the Acquisition Shares and shall be satisfactory to the Company (it being agreed that Howard, Rice, Nemerovski, Canady, Falk & Rabkin shall be satisfactory)), shall be paid by the Company. The parties agree that all underwriting discounts and commissions shall be the responsibility of the Holders. 7. INDEMNIFICATION. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder, such Holder's directors and officers, any underwriter (as defined in the Securities Act), and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or any other applicable state or federal law, insofar as such losses, claims, damages or liabilities (or proceedings in respect thereof) arise out of or are based on any untrue or alleged untrue statement of any material fact contained in such registration statement on the effective date thereof (including any prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact 5 required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each such Holder, such Holder's directors and officers, such underwriter or controlling person for any legal or other expenses reasonably incurred by them (but not in excess of expenses incurred in respect of one counsel and one local counsel for all of them unless, in the reasonable judgment of an indemnified party there is potential conflict of interest between any indemnified parties, which indemnified parties may be represented by separate counsel and local counsel) in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld); PROVIDED, FURTHER, that the Company shall not be liable to any Holder, such Holder's directors and officers, underwriter or controlling person in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in connection with such registration statement, preliminary prospectus, final prospectus or amendments or supplements thereto, in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, such Holder's directors and officers, underwriter or controlling person. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder, such Holder's directors and officers, underwriter or controlling person, and shall survive the transfer of such securities by such Holder. (b) To the extent permitted by applicable law, each Holder shall indemnify and hold harmless the Company, each of its directors and officers, each person, if any, who controls the Company within the meaning of the Securities Act, and any underwriter (within the meaning of the Securities Act) for the Company against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director, officer, controlling person or underwriter may become subject, under the Securities Act or any other applicable state or federal law, insofar as such losses, claims, damages or liabilities (or proceedings in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement on the effective date thereof (including any prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement in reliance upon and in conformity with written information furnished expressly by or on behalf of such Holder for use in connection with such registration; and each such Holder shall reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, agent or underwriter (but not in excess of expenses incurred in respect of one counsel and one local counsel for all of them unless, in the reasonable judgment to of an indemnified party, there is a conflict of interest between any indemnified parties, which indemnified parties may be represented by 6 separate counsel and local counsel) in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of such Holder (which consent shall not be unreasonably withheld), and PROVIDED, FURTHER, that the liability of each Holder hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the net proceeds from the sale of the shares sold by such Holder under any such registration statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from the sale of Registrable Stock covered by such registration statement. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section, notify the indemnifying party in writing of the commencement thereof and the indemnifying party shall have the right to participate in and assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER, that the exercise of the foregoing right shall be conditioned upon the written acknowledgment of the indemnifying party to the indemnified party of the indemnifying party's obligation hereunder to indemnify the indemnified party for any losses arising from such action; and PROVIDED FURTHER, that in such event, the indemnified party shall have the right to retain its own counsel and local counsel, with all fees and expenses thereof to be paid by such indemnified party, and to be apprised of all progress in any proceeding the defense of which has been assumed by the indemnifying party. The failure to notify an indemnifying party promptly of the commencement of any such action, shall only release the indemnifying party from any of its obligations under this Section 7(c) if, and only to the extent that, such indemnifying party is materially prejudiced by such failure, but the omission to so notify the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section. (d) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages or liabilities referred to above shall be deemed to 7 include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 8. TRANSFER OF REGISTRATION RIGHTS. The rights of any Holder under this Agreement with respect to any Registrable Stock may be transferred to any transferee of such Registrable Stock; PROVIDED, however, that (i) the transferring Holder shall give the Company written notice at or prior to the time of such transfer stating the name and address of the transferee and identifying the securities with respect to which the rights under this Agreement are being transferred; (ii) such transferee shall agree in writing, in form and substance reasonably satisfactory to the Company, to be bound as a Holder by the provisions of this Agreement; and (iii) immediately following such transfer the further disposition of such securities by such transferee is restricted under the Securities Act. Except as set forth in this Section 8, no transfer of Registrable Stock shall cause such Registrable Stock to lose such status. Notwithstanding any other provision of this Agreement, the Company is aware that each of FT Ventures, TPF or Benchmark (as such terms are defined in the Securities Purchase Agreement) may distribute all or part of the Registrable Stock which it holds to its general and limited partners (the "Partners") and the Partners shall have a right to become Holders pursuant to this Agreement; provided that, the Partners comply with the provisions of this Section 8. 9. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto. Except as expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended to confer upon any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement. 10. COUNTERPARTS; TITLES. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. The titles of the Sections of this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 11. NOTICES. Any notice required or permitted under this Agreement shall be in writing and shall be delivered in person or mailed by certified or registered mail, return receipt requested, overnight courier or facsimile, directed to (a) the Holders 8 at The Charles Schwab Corporation, 101 Montgomery Street, San Francisco, CA 94104, attention: Christopher V. Dodds, facsimile (415) 636-5877, with a copy to Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation, at Three Embarcadero Center, Seventh Floor, San Francisco, CA 94111, attention: Lawrence B. Rabkin, facsimile (415) 217-5910; or (b) to the Company at E-Loan, Inc., 5875 Arnold Road, Suite 100 Dublin, CA 94568, attention: Douglas Galen, facsimile (925) 556-2914, with a copy to, E-Loan, Inc., 5875 Arnold Road, Suite 100, Dublin, CA, attention: Edward A. Giedgowd, facsimile: (925) 803-3503, or, in any such case, at such other address or addresses as shall have been furnished in writing by such party to the others. Copies of the notices provided to The Charles Schwab Corporation shall also be provided to each of the other Purchasers at the addresses set forth on Exhibit A hereto, or, in any such case, at such other address or addresses as shall have been furnished in writing by the Purchasers to the Company. The giving of any notice required hereunder may be waived in writing by the parties hereto. Every notice or other communication hereunder shall be deemed to have been duly given or served on the date on which personally delivered, or on the date actually received. 12. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Holders of at least 50% of the Acquisition Shares; provided that, for purposes of this Section 12, each of FT Ventures, TPF and Benchmark shall be deemed to own all of the shares of Registrable Stock owned by any of its Partners and shall represent their interests. Any amendment or waiver effected in accordance with this Section 12 shall be binding upon each Holder of any securities subject to this Agreement at the time outstanding (including securities into which such securities are convertible), each future Holder and all such securities, and the Company. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 13. SEVERABILITY; ENTIRE AGREEMENT. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provisions shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provisions were so excluded and shall be enforceable in accordance with its terms. All prior agreements of the parties concerning the subject matter of this Agreement are expressly superseded by this Agreement. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. Any oral representations or modifications of this Agreement shall be of no effect. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law principles. 9 15. FORUM; WAIVER OF JURY TRIAL. (a) All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in any California state or federal court sitting in the City and County of San Francisco. The parties hereto hereby (i) submit to the exclusive jurisdiction of any California state or federal court sitting in the City and County of San Francisco for the purpose of any action or proceeding arising out of or relating to this Agreement brought by any party hereto, and (ii) waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action or proceeding is brought in an inconvenient forum, that the venue of the action or proceeding is improper, or that this Agreement may not be enforced in or by any of the above-named courts. (b) EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTIONS OR PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "COMPANY": E-LOAN, Inc. /s/ CHRISTIAN LARSEN ______________________________________________ Name: Christian Larsen Title: Chief Executive Officer "PURCHASERS": The Charles Schwab Corporation Technology Partners Fund VI, L.P. By: TP Management VI, L.L.C. By: /s/ LINNET F. DEILY By:/s/ IRA EHRENPREIS _______________________________________ ____________________________ Name: Linnet F. Deily Name: Ira Ehrenpreis Title: Vice Chairman and Title: Managing Member President, Schwab Retail Group Abbey National Treasury Services Financial Technology Ventures, Overseas Holdings L.P. Financial Technology Ventures (Q), . L.P. By: Financial Technology Management, L.L.C., their General Partner By: /s/ ANNA MERRICK By:/s/ SCOTT WU _______________________________________ ____________________________ Name: Anna Merrick Name: Scott Wu Title: Title: Managing Member Benchmark Capital Partners IV, L.P. Charles Schwab & Co., Inc. as nominee for Benchmark Capital Partners IV, L.P. Benchmark Founders' Fund IV, L.P. By:/s/ LINNET F. DEILY ____________________________ Benchmark Founders' Fund IV-A, L.P. Name: Linnet F. Deily and related individuals Title: Vice Chairman and President, Schwab By: Benchmark Capital Management Retail Group Co. IV, L.L.C., their general partner By: /s/ STEVE SPURLOCK _______________________________________ Name: Steve Spurlock, Managing Member 11 EXHIBIT A LIST OF PURCHASERS PURCHASERS The Charles Schwab Corporation 101 Montgomery Street San Francisco, CA 94104 Abbey National Treasury Services Overseas Holdings 26-28 Dorset Square London NW1 6QG United Kingdom Attention: Christian Dummett Fax No.: 011-44-207612-3482 Financial Technology Ventures L.P. Financial Technology Ventures (Q) L.P. 601 California Street 22nd Floor San Francisco, CA 94108 Attention: Chuck Ott Fax No.: (415) 229-3010 Benchmark Capital Partners IV, L.P. 2480 Sand Hill Road Palo Alto, CA 94025 Attention: Steve Spurlock Fax No.: (650) 854-8183 Technology Partners Fund VI, L.P. 550 University Avenue Palo Alto, CA 94301 Attention: Ira Ehrenpreis Fax No.: (650) 289-9001 12 -----END PRIVACY-ENHANCED MESSAGE-----