EXHIBIT 1
to SCHEDULE 13D
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated December 4, 2001 (this
"AGREEMENT"), among The Xxxxxxx Xxxxx Group, Inc. (the "SELLER"), and the
parties listed on Schedule 1 to this Agreement (the "PURCHASERS").
WHEREAS, each of the Purchasers wishes to purchase from the Seller the
aggregate number of shares of Class B common stock, par value $0.01 per share,
of SoundView Technology Group, Inc., a Delaware corporation (the "COMPANY"), set
forth opposite the name of such Purchaser on SCHEDULE 2.1 hereto (the "PURCHASED
SHARES").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Defined terms used in this Agreement but not
otherwise defined have the following meanings:
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CONTRACTUAL OBLIGATIONS" means as to any Person, any security issued
by such Person or any agreement, undertaking, contract, indenture, mortgage,
deed of trust or other instrument to which such Person is a party or by which it
or any of its property is bound.
"GOVERNMENTAL AUTHORITY" means the government of any nation, state,
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
escrow, assignment, encumbrance, lien (statutory or other) or preference,
priority, right of first offer or first refusal, exchange or option right, or
other security interest or preferential arrangement of any kind or nature
whatsoever.
"PERSON" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"REQUIREMENT OF LAW" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
ARTICLE II
PURCHASE AND SALE OF PURCHASED SHARES
2.1 PURCHASE AND SALE. Subject to the terms and conditions herein
set forth, at the Closing (as defined below), the Seller agrees to sell to each
of the Purchasers, and each of the Purchasers, severally and not jointly, agrees
to purchase from the Seller, at a price per share equal to $1.7142, the
aggregate number of Purchased Shares set forth opposite such Purchaser's name on
SCHEDULE 2.1 hereto for the aggregate purchase price set forth opposite such
Purchaser's name on SCHEDULE 2.1 hereto.
2.2 CLOSING. Subject to the satisfaction or waiver of the
conditions set forth in Article V, the closing of the sale and purchase of the
Purchased Shares (the "CLOSING") shall take place at 10:00 a.m., New York City
time, at the offices of the Company on December 12, 2001 or at such other time,
place and date to which the Seller and the Purchasers may agree in writing (the
"CLOSING DATE"). On the Closing Date, (a) the Seller shall deliver to each
Purchaser stock certificates representing the Purchased Shares being sold by the
Seller to such Purchaser (the "STOCK CERTIFICATES") and stock powers, in the
form attached hereto as EXHIBIT A (the "STOCK POWERS"), executed by the Seller
and take all other actions reasonably requested by the Purchasers to effectuate
the valid transfer of the Purchased Shares on the books and records of the
Company and (b) the Purchasers shall wire the aggregate purchase price for all
of the Purchased Shares to an account of the Seller designated in writing by the
Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to each of the Purchasers as
follows:
3.1 EXISTENCE AND POWER; CAPACITY. The Seller, (a) is a
corporation, duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and (b) has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement.
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3.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Seller of this Agreement and the transactions contemplated
hereby including, without limitation, the sale of the Purchased Shares by such
Seller (a) have been duly authorized by all necessary action, do not contravene
the terms of the Seller's Certificate of Incorporation, as amended, and by-laws,
as amended, in each case as in effect on the date hereof; (b) do not violate,
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any Contractual Obligation of such Seller, or any Requirement of
Law applicable to such Seller, including federal or state securities laws; and
(c) do not violate any judgment, injunction, award, decree or order of any
nature of any Governmental Authority (collectively, "ORDERS") against, or
binding upon, such Seller.
3.3 TITLE TO SECURITIES. The Seller owns beneficially and of
record the Purchased Shares and has good and valid title to the Purchased
Shares, free and clear of all Liens. The Seller has the unrestricted power and
authority to transfer the Purchased Shares to the Purchasers. Upon delivery to
the Purchasers of the Purchased Shares and payment therefor, the Purchasers
shall acquire good and valid title to such Purchased Shares, free and clear of
all Liens, other than Liens created or suffered to exist by the Purchasers.
3.4 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval,
consent, compliance, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any requirement of law is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the sale and delivery of the Purchased Shares), by or enforcement
against the Seller of this Agreement or the transactions contemplated hereby.
3.5 BINDING EFFECT. This Agreement has been duly executed and
delivered by the Seller, and this Agreement constitutes the valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.6 RULE 144 (k) ELIGIBLE. The Seller has owned the Purchased
Shares for more than two (2) years and is not, and has not been for at least
three months, an affiliate of the Company. No registration of the Purchased
Shares, pursuant to the provisions of the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the "SECURITIES ACT") or
any state securities or "blue sky" laws, is required by the offer or sale of the
Purchased Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants (severally and
not jointly) to the Seller as follows:
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4.1 EXISTENCE AND POWER. Such Purchaser (a) is a limited
partnership duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization and (b) has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by such Purchaser of this Agreement (a) have been duly authorized by
all necessary partnership or limited liability company action and do not
contravene the terms of such Purchaser's constituent documents as in effect on
the date hereof; (b) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual Obligation
of such Purchaser or any Requirement of Law applicable to such Purchaser,
including federal or state securities laws; and (c) do not violate any Orders
against, or binding upon, such Purchaser.
4.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase and delivery of the Purchased Shares) by, or
enforcement against, such Purchaser of this Agreement and the transactions
contemplated hereby.
4.4 BINDING EFFECT. This Agreement has been duly executed and
delivered by such Purchaser and this Agreement constitutes the valid and binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 PURCHASE FOR OWN ACCOUNT. The Purchased Shares to be acquired
by such Purchaser pursuant to this Agreement are being acquired for its own
account and with no intention of distributing or reselling such Purchased Shares
or any part thereof in any transaction that would be in violation of the
securities laws of the United States of America, or any state, without
prejudice, however, to the rights of such Purchaser at all times to sell or
otherwise dispose of all or any part of such Purchased Shares under an effective
registration statement under the Securities Act, or under an exemption from such
registration available under the Securities Act, and subject, nevertheless, to
the disposition of such Purchaser's property being at all times within its
control. If such Purchaser should in the future decide to dispose of any of the
Purchased Shares, such Purchaser understands and agrees that it may do so only
in compliance with the Securities Act.
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ARTICLE V
CONDITIONS
5.1 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE. The
obligation of the Purchasers to purchase the Purchased Shares, to pay the
purchase price therefor at the Closing and to perform any obligations hereunder
shall be subject to the satisfaction as determined by, or waiver by, the
Purchasers of the following condition on or before the Closing Date: The Seller
shall have taken all actions necessary to effectuate the valid transfer of the
Purchased Shares being purchased by the Purchasers, including, without
limitation, delivering to the Purchasers the Stock Certificates and the Stock
Powers; and all of the representations and warranties of the Seller set forth in
Article III shall be true and correct on the Closing Date as though made on such
date.
5.2 CONDITION TO THE OBLIGATIONS OF SELLER TO CLOSE. The
obligation of the Seller to sell the Purchased Shares and to perform its other
obligations hereunder shall be subject to the satisfaction as determined by, or
waiver by, the Seller of the following conditions on or before the Closing Date:
Each Purchaser shall have paid the aggregate purchase price for the Purchased
Shares to be purchased by such Purchaser; and all of the representations and
warranties of the Purchasers set forth in Article IV shall be true and correct
on the Closing Date as though made on such date.
ARTICLE VI
MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Seller made herein shall survive the
execution and delivery of this Agreement.
6.2 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or Personal delivery:
if to the Seller:
The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
if to the Purchasers:
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c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied.
6.3 SUCCESSORS AND ASSIGNS; THIRD-PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. Subject to applicable securities laws
and the terms and conditions thereof, each of the Purchasers may assign any of
its rights under this Agreement to any of its affiliates (as defined in Rule
12b-2 of the general rules and regulations under the Securities Exchange Act of
1934, as amended), provided that such Purchaser remains liable for such
affiliate's obligations hereunder. The Seller may assign any of its rights under
this Agreement without the written consent of the Purchasers. No Person other
than the parties hereto and their successors and permitted assigns is intended
to be a beneficiary of this Agreement.
6.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the Seller or any
Purchaser in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Seller or the Purchasers at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Seller or any Purchaser from the terms
of any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Seller and the Purchasers, and (ii) only in
the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement, no notice to or
demand on the Purchasers or the Seller in any case shall entitle the Purchasers
or the Seller, as the case may be, to any other or further notice or demand in
similar or other circumstances.
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6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
6.7 HEADINGS; RULES OF CONSTRUCTION. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. Unless the context otherwise requires, references to
sections or subsections refer to sections or subsections of this Agreement.
6.8 ENTIRE AGREEMENT. This Agreement, together with any exhibits
and schedules hereto, is intended by the parties as a final expression of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
representations, warranties or undertakings, other than those set forth or
referred to herein or therein. This Agreement, together with the exhibits and
schedules hereto, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
6.9 PAYMENT OF FEES. Each party shall pay its own fees and
expenses incurred in connection with this Agreement or otherwise.
6.10 FURTHER ASSURANCES; OPINION. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement. Upon the
request of the Purchasers if required to consummate the valid transfer of the
Purchased Shares, the Seller shall deliver to the Purchasers an opinion of
counsel to the Seller, in customary form and reasonably satisfactory to the
Purchasers, opining that it is not required to register the offer and sale of
the Purchased Shares to the Purchasers pursuant to the provisions of the
Securities Act.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
GENERAL ATLANTIC PARTNERS 61, L.P.
By: General Atlantic Partners, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
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SCHEDULE 1
PURCHASERS
----------
General Atlantic Partners 61, L.P.
GAP Coinvestment Partners II, L.P.
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SCHEDULE 2.1
PURCHASED SHARES AND PURCHASE PRICE
-----------------------------------
PURCHASER PURCHASED SHARES PURCHASE PRICE
--------- ---------------- --------------
General Atlantic Partners 61, L.P. 3,701,408 $6,344,953.59
GAP Coinvestment Partners II, L.P. 798,592 1,368,946.41
Total: 4,500,000 $7,713,900.00
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, The Xxxxxxx Sachs Group, Inc. ("Seller") hereby sells,
assigns and transfers unto General Atlantic Partners 61, L.P. ___________ shares
of Class B common stock, par value $0.01 per share (the "Shares"), of SoundView
Technology Group, Inc. (the "Company") standing in the name of Seller on the
books of the Company, and does hereby constitute and appoint the Secretary of
the Company or any other officer of the Company to transfer the Shares on the
books of the Company.
Dated: December __, 2001
THE XXXXXXX XXXXX GROUP, INC.
By: _______________________________________
Name:
Title:
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STOCK POWER
FOR VALUE RECEIVED, The Xxxxxxx Sachs Group, Inc. ("Seller") hereby sells,
assigns and transfers unto GAP Coinvestment Partners II, L.P. ___________ shares
of Class B common stock, par value $0.01 per share (the "Shares"), of SoundView
Technology Group, Inc. (the "Company") standing in the name of Seller on the
books of the Company, and does hereby constitute and appoint the Secretary of
the Company or any other officer of the Company to transfer the Shares on the
books of the Company.
Dated: December __, 2001
THE XXXXXXX XXXXX GROUP, INC.
By: _______________________________________
Name:
Title:
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