Exhibit 2.2
OMNIBUS AMENDMENT, WAIVER AND CONSENT
This OMNIBUS AMENDMENT, WAIVER AND CONSENT (this "CONSENT"), dated as of
June __, 2004, is made by and among optionsXpress Holdings, Inc., a Delaware
corporation ("HOLDINGS"), optionsXpress, Inc., a Delaware corporation
("OPTIONSXPRESS") and each of the other undersigned parties.
WHEREAS, pursuant to the terms and conditions of that certain Agreement and
Plan of Merger dated June __, 2004 (the "MERGER AGREEMENT") by and among
Holdings, optionsXpress and optionsXpress MergerCo, Inc., a Delaware corporation
and wholly-owned subsidiary of Holdings ("MERGERCO"), in accordance with Section
251(g) of General Corporation Law of Delaware (the "DGCL"), MergerCo shall be
merged with and into optionsXpress and optionsXpress shall thereby become a
wholly-owned subsidiary of Holdings;
WHEREAS, pursuant to the Merger Agreement, each share or fraction thereof
of common stock of optionsXpress, par value $.000l per share (the "OPTIONSXPRESS
COMMON STOCK") outstanding immediately prior to the Effective Time (as defined
in the Merger Agreement) shall be converted into one, or an equal fraction of
one, validly issued, fully paid and nonassessable share of common stock of
Holdings, par value $.0001 per share (the "HOLDINGS COMMON STOCK") and shall
cease to represent any rights in any shares of the optionsXpress Common Stock,
and any shares of optionsXpress Common Stock outstanding prior to the date
hereof shall be canceled and cease to exist;
WHEREAS, each share or fraction thereof of preferred stock of
optionsXpress, par value $.0001 per share (the "OPTIONSXPRESS PREFERRED STOCK")
outstanding immediately prior to the Effective Time shall be converted into one,
or an equal fraction of one, validly issued, fully paid and nonassessable share
of preferred stock of Holdings, par value $.0001 per share (the "HOLDINGS
PREFERRED STOCK") and shall cease to represent any rights in any shares of
optionsXpress Preferred Stock, and any shares of optionsXpress Preferred Stock
outstanding prior to the date hereof shall be canceled and cease to exist;
WHEREAS, the directors of optionsXpress immediately prior to the Effective
Time shall be the directors of Holdings as of the Effective Time;
WHEREAS, the designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of the Holdings Common
Stock and the Holdings Preferred Stock shall be the same as those of the
optionsXpress Common Stock and optionsXpress Preferred Stock, respectively;
WHEREAS, the Certificate of Incorporation and Bylaws of Holdings
immediately after the Effective Time shall contain provisions identical to the
Restated Certificate of Incorporation and Bylaws of optionsXpress immediately
prior to the Effective Time (other than with respect to matters excepted by
Section 251(g) of the DGCL);
WHEREAS, optionsXpress and all or certain of the undersigned parties are
parties to the Agreements set forth on SCHEDULE I attached hereto, each an
"AGREEMENT";
WHEREAS, in order to provide the same benefits, privileges and obligations
previously afforded to the undersigned parties upon and after the Merger,
optionsXpress shall assign and Holdings will assume all of the rights, benefits
and obligations that optionsXpress previously possessed under each Agreement;
WHEREAS, the parties desire to amend each Agreement as hereinafter set
forth; and
WHEREAS, pursuant to each Agreement, optionsXpress and certain, or in some
cases all, of the undersigned parties must approve an amendment to such
Agreement.
NOW THEREFORE, each of the undersigned acknowledges and agrees as follows:
1. Holdings hereby assumes all of the right, title, and interest of
optionsXpress in, under and to each Agreement and agrees to be bound by all of
the terms, covenants and conditions contained in each Agreement and assumes all
of the obligations of optionsXpress under each Agreement as if Holdings were the
original signatory under each Agreement (instead of optionsXpress), in
accordance with and subject to each Agreement.
2. All references in each Agreement to optionsXpress, Inc. shall now be
references to optionsXpress Holdings, Inc.
3. Each of the undersigned hereby approves and consents to the
consummation of the transactions contemplated by the Merger Agreement, including
without limitation the execution and delivery by Holdings of this Consent, and
waives any rights or actions under each Agreement relating to the consummation
of this Consent and/or the Merger Agreement and hereby acknowledges and agrees
that each Agreement shall remain in full force and effect in accordance with its
terms (as amended herein) following the closing of the Merger and the execution
of this Consent.
4. The execution of this Consent by the undersigned satisfies the consent
requirement in the case of any Agreement's applicable provision concerning the
amendment of such Agreement and no party to this Consent or any Agreement will
raise as a defense to formation of contract a failure to obtain appropriate
consent in this instance and each such party waives any such defense as it
relates to this Consent and the transactions contemplated under the Merger
Agreement.
5. It is the intention of the undersigned for each of the parties hereto
to be in the same position (with Holdings standing in the place of
optionsXpress) they were in immediately prior to the execution of this Consent
and the consummation of the Merger after the execution of this Consent and the
consummation of the Merger and as such each of the parties hereto agrees that
they will execute and deliver, or cause to be executed and delivered any such
further documents, agreements and instruments and take such other actions as may
be necessary or desirable to carry out the purpose and intent of this Consent.
6. This Consent shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to its choice of laws provisions.
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7. This Consent may be executed in one or more counterparts (including by
means of telecopied signature page) which together shall constitute a single
agreement.
8. Any reference to an Agreement contained in any document, instrument or
agreement shall be deemed to be a reference to such Agreement as modified by
this Consent.
9. The terms and provisions set forth in this Consent shall modify and
supersede all inconsistent terms and provisions of the Agreements and shall not
be deemed to be a consent to the modification or waiver of any other term or
condition of the Agreements.
* * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this CONSENT on the
day and year first above written.
OPTIONSXPRESS, INC.
By: /s/ XXXXX XXXX
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Its: President
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OPTIONSXPRESS HOLDINGS, INC.
By: /s/ XXXXX XXXX
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Its: CEO
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G-BAR LIMITED PARTNERSHIP
By: /s/ XXXXX XXXX
------------------------------
Its: General Partner
XXXXX XXXX DELTA TRUST FOR XXX
U/A/D JUNE 7, 2002
By: /s/ XXXXX XXXX
------------------------------
Its: Trustee
/s/ XXXXX XXXX
------------------------------
Xxxxx Xxxx
/s/ XXX XXXXXXX
------------------------------
Xxx Xxxxxxx
/s/ XXXXX XXXX
------------------------------
Xxxxx Xxxx
SUMMIT VENTURES VI-A, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: Member
SUMMIT VENTURES VI-B, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: Member
SUMMIT VI ADVISORS FUND, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: Member
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SUMMIT VI ENTREPRENEURS FUND, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: Member
SUMMIT INVESTORS VI, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: Member
/s/ XXXXXXXXXXX XXXX
------------------------------
Xxxxxxxxxxx X. Xxxx
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SCHEDULE I
1. Stockholders Agreement, dated January 15, 2004, by and among optionsXpress
and certain of the Stockholders of optionsXpress
2. Registration Agreement, dated January 15, 2004, by and among optionsXpress
and certain of the Stockholders of optionsXpress
3. Investor Rights Agreement, dated January 15, 2004, by and among
optionsXpress and certain of the Stockholders of optionsXpress
4. Management Rights Agreement, dated January 15, 2004, by and among
optionsXpress and certain of the Stockholders of optionsXpress
5. Indemnification Agreement, dated January 15, 2004, by and among
optionsXpress and Xxxxx Xxxx
6. Indemnification Agreement, dated January 15, 2004, by and among
optionsXpress and Xxx Xxxxxxx
7. Indemnification Agreement, dated January 15, 2004, by and among
optionsXpress and Xxxxx Xxxx
8. Indemnification Agreement, dated January 15, 2004, by and among
optionsXpress and Xxxxxxxxxxx X. Xxxx
9. Amended and Restated Restricted Stock Agreement, dated January 15, 2004, by
and among optionsXpress and Xxxxx Xxxx
10. Amended and Restated Restricted Stock Agreement, dated January 15, 2004, by
and among optionsXpress and Xxx Xxxxxxx
11. Amended and Restated Restricted Stock Agreement, dated January 15, 2004, by
and among optionsXpress and Xxxxx Xxxx
12. Side Letter Agreement, dated January 15, 2004, by and among optionsXpress
and Summit Partners, L.P.
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