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EXHIBIT 2.2
AMENDMENT ONE
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT ONE TO AGREEMENT AND PLAN OF MERGER, dated as of September 29,
2000, by and among ON2.COM INC., a corporation organized under the laws of the
State of Delaware (the "Parent"), 8C ACQUISITION CORP., a corporation organized
under the laws of the State of Delaware and a wholly-owned subsidiary of the
Parent ("Acquisition"), EIGHT CYLINDER STUDIOS, INC., a corporation organized
under the laws of the State of California ("the Company"), and certain
shareholders of the Company, each of whom is listed on the signature page hereto
(collectively, the "Principal Shareholders").
WHEREAS, the parties hereto entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of July 13, 2000, pursuant to which the
Company shall be merged with and into Acquisition; and
WHEREAS, the Merger Agreement provides that either the Company or the
Parent may terminate the Merger Agreement if the Effective Time (as such term is
defined therein) shall not have occurred on or before September 29, 2000; and
WHEREAS, the parties desire to extend the time during which the
transactions contemplated by the Merger Agreement may be consummated, and
WHEREAS, the parties desire to clarify the manner in which the Indemnified
Parties may seek indemnification for Losses against the Escrow Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and intending to be legally bound thereby, the parties hereto
hereby agree as follows:
1. Capitalized terms used herein without definition shall have the
meanings assigned thereto in the Merger Agreement.
2. Section 10.1 of the Merger Agreement is hereby amended to delete the
words "September 29, 2000" from the second line of subsection (b)(ii) thereof,
and to insert in their place the words "October 31, 2000."
3. Section 11.5 of the Merger Agreement is hereby amended to delete the
final sentence there of and insert in its place the following sentence:
"The Indemnified Parties shall first seek recovery in respect of any
Losses against the Escrow Shares that, but for the provisions of Section 2.8
hereof, would have been issued to the Principal Shareholders. When and if such
Escrow Shares are fully depleted, the Indemnified Parties shall next seek
recovery against the remainder of the Escrow Shares."
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3. All other provisions of the Merger Agreement shall remain in full
force and effect.
4. This Agreement may be executed in any number of counterparts, each of
which shall be deemed and original, but all of which together shall constitute
one and the same instrument.
5. The parties hereby agree that this Agreement, and the respective
rights, duties and obligations of the parties hereunder, shall be governed by
and construed in accordance with the laws of New York, without giving effect to
principles of conflicts of law thereunder.
6. This Agreement is not intended to create any right, claim or remedy in
favor of any person or entity, other than the parties hereto and their
respective successors (or in the case of the Principal Shareholders, their
respective heirs, administrators, executors and personal representatives) and
permitted assigns.
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IN WITNESS WHEREOF, the Parent, Acquisition, the Company and the Principal
Shareholders named below have caused this Agreement to be duly executed and
delivered as an instrument under seal as of the date first above written.
ON2.COM INC.
By: /s/ Douglas Mcintyre
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Name: Douglas McIntyre
Title: President
8C ACQUISITION CORP.
By: /s/ Douglas Mcintyre
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Name: Douglas McIntyre
Title: President
EIGHT CYLINDER STUDIOS, INC.
By: /s/ Jon Middleton
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Name: Jon Middleton
Title: President
PRINCIPAL SHAREHOLDERS:
/s/ Jonathon Fishman
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Jonathon Fishman
/s/ Jon Middleton
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Jon Middleton
/s/ Chad Nelson
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Chad Nelson
