EXHIBIT 2
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated August 31, 2001 (this
"AGREEMENT"), among EDS/SHL Corporation, a Delaware corporation (the "SELLER"),
General Atlantic Partners 57, L.P., a Delaware limited partnership ("GAP LP"),
and GAP Coinvestment Partners II, L.P., a Delaware limited partnership ("GAP
COINVESTMENT" and, together with GAP LP, the "PURCHASERS").
WHEREAS, each of the Purchasers wishes to purchase from the
Seller the aggregate number of shares of common stock, par value $0.001 per
share, of Chordiant Software, Inc., a Delaware corporation (the "COMPANY"), set
forth opposite the name of such Purchaser on SCHEDULE 1.1 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
PURCHASE AND SALE OF PURCHASED SHARES
-------------------------------------
1.1 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 $2.75, the aggregate number of Purchased Shares set forth opposite the name
of such Purchaser on SCHEDULE 1.1 hereto for the aggregate purchase price set
forth opposite the name of such Purchaser on SCHEDULE 1.1 hereto.
1.2 CLOSING. 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, on the date hereof, at the offices of the Purchasers 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 wire to the
Purchasers' DTC accounts designated in writing by the Purchasers the Purchased
Shares being sold by the Seller to the Purchasers 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.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
The Seller hereby represents and warrants to each of the
Purchasers as follows:
2.1 EXISTENCE AND POWER. 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.
2.2 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 the Seller (a) have been duly authorized by all necessary corporate
action and do not contravene the terms of the Seller's Certificate of
Incorporation, as amended, and by-laws, as amended, 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 (as hereinafter defined) under,
any contractual obligation of the Seller, or any requirement of law applicable
to the Seller, including federal or state securities laws; and (c) do not
violate any judgment, injunction, unit, award, decree or order of any nature of
any governmental authority (collectively, "ORDERS") against, or binding upon,
the Seller. As used in this Agreement, "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.
2.3 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 by the Purchasers.
2.4 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS.
Assuming the representation and warranty of the Purchasers set forth in Section
3.3 is true with respect to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), 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 by or enforcement against the Seller of this
Agreement or the transactions contemplated hereby.
2.5 BINDING EFFECT. This Agreement has been duly executed
and delivered by the Seller, and this Agreement constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms,
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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).
2.6 PRIVATE OFFERING. No form of general solicitation or
general advertising was used by the Seller or any of the Seller's
representatives in connection with the offer or sale of the Purchased Shares.
Assuming the representations and warranties of the Purchasers set forth in
Article III hereof are true, 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, will be required by the offer or sale of the
Purchased Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
------------------------------------------------
Each of the Purchasers hereby represents and warrants
(severally and not jointly) to the Seller as follows:
3.1 EXISTENCE AND POWER. Such Purchaser (a) is a limited
partnership, or limited liability company, 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.
3.2 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.
3.3 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, including any filing
or lapse of a waiting period under the HSR Act, is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, such Purchaser of this Agreement and the transactions contemplated
hereby.
3.4 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,
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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).
3.5 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. Such Purchaser has no knowledge of any
material, nonpublic information about the Company.
3.6 RESTRICTED SECURITIES. Such Purchaser understands
that the Purchased Shares may not be registered under the Securities Act for the
reason that the sale provided for in this Agreement may be effectuated in
reliance upon the exemption set forth in Section 4(2) of the Securities Act and
that any reliance of the Seller on such exemption is predicated in part on such
Purchaser's representations set forth herein. Such Purchaser represents that it
is experienced in evaluating companies such as the Company, has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of its investment and has the ability to suffer the total
loss of its investment.
3.7 ACCREDITED INVESTOR. Such Purchaser is an "ACCREDITED
INVESTOR" within the meaning of Rule 501 of Regulation D under the Securities
Act.
ARTICLE IV
CONDITIONS
----------
4.1 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 wiring the
Purchased Shares to the Purchasers' DTC accounts, and shall have provided
satisfactory evidence thereof to the Purchasers.
4.2 CONDITION TO THE OBLIGATIONS OF THE 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
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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.
ARTICLE V
MISCELLANEOUS
-------------
5.1 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.
5.2 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:
EDS/SHL Corporation
0000 Xxxxxx Xxxxx, Xxxx Xxxx X0-0X-00
Xxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
if to the Purchasers:
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.
5.3 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
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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).
The Seller may not assign any of its or his 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.
5.4 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.
5.5 COUNTERPARTS. This Agreement may be executed in
counterparts, and shall be deemed to have been duly executed and delivered by
all parties when each party has executed a counterpart hereof and delivered an
original or facsimile copy thereof to the other party. Each such counterpart
hereof shall be deemed to be an original, and all of such counterparts together
shall constitute one and the same instrument.
5.6 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.
5.7 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
5.8 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.
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5.9 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.
5.10 PAYMENT OF FEES. Each party shall pay its own fees
and expenses incurred in connection with this Agreement or otherwise.
5.11 FURTHER ASSURANCES. 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.
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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.
EDS/SHL CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Treasurer
GENERAL ATLANTIC PARTNERS 57, 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 1.1
------------
PURCHASED SHARES AND PURCHASE PRICE
-----------------------------------
PURCHASER PURCHASED SHARES PURCHASE PRICE
--------- ---------------- --------------
GAP LP 1,986,223 $5,462,113.25
GAPCO II 435,652 1,198,043.00
Total 2,421,875 $6,660,156.25
