AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of November 18,
2003, to the Rights Agreement (the "Rights Agreement"), dated as of June 7,
1999, between SoundView Technology Group, Inc. (formerly known as Wit Capital
Group, Inc.) (the "Company") and American Stock Transfer & Trust Company (the
"Rights Agent"). All terms used but not defined herein shall have the respective
meanings assigned to them in the Merger Agreement, as defined below.
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may from time to time supplement or amend the Rights Agreement in
accordance with the provisions of Section 27 thereof to make any provision with
respect to the Rights (as defined in the Rights Agreement) which the Company may
deem necessary or desirable, such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent; and
WHEREAS, the Company proposes to enter into an Agreement and
Plan of Merger (the "Merger Agreement"), dated as of November 18, 2003, among
The Xxxxxxx Xxxxxx Corporation, a Delaware corporation ("Parent"), Shakespeare
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub") and Company; and
WHEREAS, the Board of Directors of the Company has determined
that the transactions contemplated by the Merger Agreement are fair to and in
the best interests of the Company and its stockholders; and
WHEREAS, the Board of Directors of the Company has determined,
in connection with its contemplation of the Merger Agreement, that it is
necessary and desirable to amend the Rights Agreement to exempt the Merger
Agreement and the transactions contemplated thereby from the application of the
Rights Agreement as set forth in this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement
as follows:
1. Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end of the "Acquiring
Person" definition:
"Notwithstanding the foregoing, none of Parent, Merger Sub, or
its Subsidiaries shall become an Acquiring Person as a result
of (a) the approval, execution, delivery or performance of the
Agreement and Plan of Merger, dated as of November 18, 2003,
among Xxxxxxx Xxxxxx Corporation, a Delaware corporation
("Parent"), MergerSub, a Delaware corporation and a wholly
owned subsidiary of Parent ("MergerSub") and Company (the
"Merger Agreement") and (b) the consummation of the Merger (as
such terms are defined in the Merger Agreement) or any other
transaction contemplated by the Merger Agreement.
2. Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end of the "Distribution
Date":
"Notwithstanding the foregoing, so long as the Merger
Agreement has not been terminated pursuant to Section 8.1
thereof, a Distribution Date shall not occur or be deemed to
occur as a result of any of the transactions contemplated by
the Merger Agreement."
3. Section 1 of the Rights Agreement is hereby modified,
amended and restated as follows at "Expiration Date":
"`Expiration Date' shall mean the earliest of (i) the time
immediately prior to the consummation of the Merger, (ii) the
later of the termination of the Merger Agreement or the close
of business on September 30, 2009 (the "Final Expiration
Date", (iii) the time at which the Rights are redeemed as
provided in Section 23 hereof, (iv) the time at which the
Rights expire pursuant to Section 13(d) hereof and (v) the
time at which all Rights then outstanding and exercisable are
exchanged pursuant to Section 24 hereof."
4. This Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
5. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
6. In all respects not inconsistent with the terms and
provisions of this Amendment, the Rights Agreement is hereby ratified, adopted,
approved and confirmed. In executing and delivering this Amendment, the Rights
Agent shall be entitled to all the privileges and immunities afforded to the
Rights Agent under the terms and conditions of the Rights Agreement.
7. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment, and of the Rights Agreement, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
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IN WITNESS WHEREOF, this Amendment has been duly executed by
the Company and the Rights Agent as of the day and year first written above.
SOUNDVIEW TECHNOLOGY GROUP, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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