CHANGE OF SHAREHOLDERS' AGENT AGREEMENT
This CHANGE OF SHAREHOLDERS' AGENT AGREEMENT (this
"Agreement") is entered into as of October 12, 2000, by and among E*TRADE Group,
Inc., a Delaware corporation ("E*TRADE"), and certain shareholders (the
"Shareholders") of E*OFFERING Corp., a California corporation (the "Company").
Capitalized terms used and not otherwise defined in this Agreement shall have
the respective meanings assigned to such terms in the Agreement and Plan of
Merger, dated as of May 15, 2000, as amended pursuant to the Amendment Agreement
dated as of September 26, 2000 (as so amended, the "Merger Agreement"), by and
among Wit SoundView Group, Inc. (formerly Wit Capital Group, Inc., the
"Parent"), Wit SoundView Corporation ("Wit") and the Company.
RECITALS
WHEREAS, pursuant to the Merger Agreement, an Escrow Fund
consisting of ten percent (10%) of the Parent Shares issued thereunder will be
established to compensate Indemnified Persons for certain Damages;
WHEREAS, E*TRADE and the Shareholders desire to change the
Shareholders' Agent under the Merger Agreement from E*TRADE to General Atlantic
Partners 61, L.P.
NOW, THEREFORE, the parties hereto agree as follows:
1. SHAREHOLDERS' AGENT. Pursuant to Section 10.7 of the Merger
Agreement, the holders of a majority in interest of the Escrow Fund hereby
remove E*TRADE as Shareholders' Agent and constitute and appoint General
Atlantic Partners 61, L.P. ("General Atlantic") as Shareholders' Agent for and
on behalf of the shareholders of the Company to give and receive notices and
communications, to authorize delivery to Parent of the Parent Shares from the
Escrow Fund in satisfaction of claims by Parent, to object to such deliveries,
to agree to, negotiate, enter into settlements and compromises of, and demand
arbitration and comply with orders of courts and awards of arbitrators with
respect to such claims, and to take all action necessary or appropriate in the
judgment of the Shareholders' Agent for the accomplishment of the foregoing.
General Atlantic, in its capacity as Shareholders' Agent, shall have the rights
and obligations of the Shareholders' Agent as set forth in the Merger Agreement,
including, without limitation, Article X. This change in agency will take effect
upon ten (10) days' prior written notice to all of the Company shareholders and
to Parent.
2. Further Assurances. Each of the parties hereto shall enter
into such other instruments and documents, and take such further actions, as are
reasonably necessary to effect the purposes of this Agreement.
3. Acknowledgment. Each of the parties hereto acknowledges and
agrees that each other party has given them the opportunity to seek, and has
recommended that such
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parties obtain, independent legal advice with respect to the subject matter of
this Agreement. Further, each of the parties hereto hereby represent and warrant
to each of the other parties that such party has sought such independent legal
advice or has knowingly waived such advice.
4. Assignment. No party may, without the prior express written
consent of each other party, assign this Agreement in whole or in part. This
Agreement shall be binding upon and inure to the benefit of the respective
permitted successors and assigns of the parties hereto, and may only be amended
or modified pursuant to a written instrument executed by each of the parties
hereto.
5. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
(other than the conflicts of law principles thereof). Each of the parties hereto
irrevocably consents to the exclusive jurisdiction of any court located within
the State of Delaware, in connection with any matter based upon or arising out
of this Agreement or the matters contemplated herein, agrees that process may be
served upon them in any manner authorized by the laws of the State of Delaware
for such persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process.
6. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf as of the date first written above.
E*TRADE Group, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Legal Affairs Officer
and Corporate Secretary
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Cruttenden Partners LLC
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Member
/s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
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Xxxxxxxxxxx Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
GAP Coinvestment Partners II, L.P.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
General Atlantic Partners 61, L.P.
By: General Atlantic Partners LLC,
its general partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
New Enterprise Associates 9 L.P.
By: NEA Partners 9, L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: General Partner
NEA Ventures 2000 L.P.
By: /s/ Xxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxx Xxxxx
Title: Vice President
Battery Ventures V L.P.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Member Manager
Crosspoint Venture Partners 2000
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: General Partner
Softbank Technology Ventures V L.P.
By: SBTV LLC
By:
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Name:
Title:
Softbank Technology Advisors Fund V L.P.
By: SBTV LLC
By:
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Name:
Title:
Softbank Technology Entrepreneurs Fund V
L.P.
By: SBTV LLC
By:
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Name:
Title:
ACKNOWLEDGED:
E*OFFERING, Inc.
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Interim President
