Exhibit 2.2
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (the "Agreement") dated as of September
26, 2000 between Wit SoundView Group, Inc., a Delaware corporation ("Parent"),
Wit SoundView Corporation, a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Wit"), and E*OFFERING Corp., a California corporation
(the "Company"). Capitalized terms used but not otherwise defined in this
Agreement shall have the respective meanings set forth in the Merger Agreement
described below.
WHEREAS, Parent, Wit and the Company are parties to an
Agreement and Plan of Merger dated as of May 15, 2000 (the "Merger Agreement")
and Parent is a party to a Strategic Alliance Agreement, dated as of May 15,
2000 (the "Alliance Agreement"), with E*TRADE Group, Inc. ("E*TRADE"); and
WHEREAS, The parties hereto wish to amend the Merger Agreement
upon the terms and conditions hereof;
NOW, THEREFORE, in consideration of the covenants and
agreements set forth in this Agreement and for Parent's agreement to certain
amendments to the Alliance Agreement, the parties hereby agree to amend the
Merger Agreement as follows:
1. The second to last sentence of Section 10.1 shall be
amended and restated in its entirety to read as follows:
Except for Damages in respect of fraud, the Escrow Fund shall
constitute the exclusive remedy against the Company or any shareholder
with respect to (i) any misrepresentation or breach of, or default in
connection with, any of the representations, warranties, covenants and
agreements given or made by the Company in this Agreement, the Company
Disclosure Schedule or any Exhibit or Schedule to this Agreement or
(ii) any Specified Matter (as defined in Section 10.2).
2. Section 10.2(a) of the Merger Agreement is amended
and restated in its entirety to read as follows:
10.2. PARENT'S INDEMNIFICATION RIGHTS.
(a) Subject to the applicable limitations set forth
in this Article X, from and after the Effective Time, the shareholders
of the Company, jointly and severally, shall indemnify and hold
harmless Parent, Wit and the officers, directors, agents and employees,
and each person, if any, who controls or may control the Parent or Wit
within the meaning of the Securities Act (referred to individually as
an "Indemnified Person" and collectively as "Indemnified Persons") from
and against any and all losses, costs, damages, liabilities and
expenses arising from claims, demands, actions, causes of action,
including, without limitation, reasonable legal fees (collectively,
"Damages") arising, whether before or after the Effective Time, out of
(i) any misrepresentation or breach of, or default in connection with,
any of the representations, warranties, covenants and agreements given
or made by the Company in this Agreement, the Company Disclosure
Schedule or any Exhibit or Schedule to this Agreement or (ii) the
matters described in Schedule A (each matter referred to in clause (ii)
being a "Specified Matter"). Notwithstanding the foregoing, the
indemnification obligations of the Company shareholders for Damages in
respect of fraud shall be several and not joint, and such obligations
shall be distributed among the Company shareholders pro rata in
proportion to the number of Parent Shares issued to each such
shareholder in the Merger.
3. Section 10.2(c) of the Merger Agreement is amended
and restated in its entirety to read as follows:
(c) Parent may not receive any Parent Shares from the
Escrow Fund unless and until one or more Officer's Certificates
identifying Damages, the aggregate amount of which exceeds $3,000,000
(the "Indemnity Threshold"), have been delivered to the Escrow Agent as
provided in Section 10.2 and such amount is determined pursuant to this
Article X to be payable, in which case, Parent shall receive Parent
Shares equal in value to the full amount of Damages; provided, however,
that Damages with respect to Specified Matters shall not be subject to
or limited by the Indemnity Threshold and shall not count as Damages
for purposes of determining whether aggregate Damages exceed the
Indemnity Threshold, it being understood and agreed that only Damages
for matters other than the Specified Matters shall be aggregated for
purposes of applying the Indemnity Threshold. In determining the amount
of any Damage attributable to a breach, any materiality standard
contained in a representation, warranty or covenant of the Company
shall be disregarded.
4. Section 10.4(a)(i) is hereby amended and restated to
read in its entirety as follows:
(i) stating that actual or potential damages exist
from unreimbursed claims in an aggregate amount greater than the
minimum Indemnity Threshold, to the extent applicable, for claims
against the Escrow Fund, and
5. Notwithstanding anything herein or in the Merger
Agreement to the contrary, (a) subject to clause (b), Parent shall control the
defense and handling of all claims, demands, actions, inquiries, or
investigations (including, without limitation, communicating with governmental
or self-regulatory authorities), and (b) E*TRADE may take such actions as it, in
its sole discretion, deems necessary and appropriate in addressing Specified
Matters with governmental or self-regulatory authorities, provided that E*TRADE
informs Parent of such actions in advance and provides an opportunity for Parent
to join with E*TRADE in approaching such governmental or self-regulatory
authority.
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6. Parent and Wit hereby waive the failure of any
closing condition pursuant to Article IX of the Merger Agreement to be satisfied
to the extent such failure is attributable to any Specified Matter, and the
right to terminate the Merger Agreement pursuant to Section 11.1(a) of the
Merger Agreement, on account of any Specified Matter.
7. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement, it being understood that
all of the parties need not sign the same counterpart.
8. This Agreement shall be governed by and interpreted
and construed in accordance with the substantive laws of the State of Delaware
without regard to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
WIT SOUNDVIEW GROUP, INC.
By:_______________________________________
Name:
Title:
WIT SOUNDVIEW CORPORATION
By:_______________________________________
Name:
Title
E*OFFERING CORP.
By:_______________________________________
Name:
Title
Acknowledged pursuant to Section 13.2 of the
Merger Agreement:
E*TRADE GROUP, INC.
By:__________________________________
Name:
Title
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SCHEDULE A
[Schedule of certain business matters]
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