EXHIBIT 2
to SCHEDULE 13D
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated August 30, 2001 (this
"AGREEMENT"), among the parties listed on SCHEDULE I hereto (the "SELLERS"),
General Atlantic Partners 61, 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 wish to purchase from each of
the Sellers the aggregate number of shares of common stock, par value $0.01 per
share, of SoundView Technology Group, Inc., a Delaware corporation (the
"COMPANY"), set forth opposite the name of each of such Sellers 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
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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 our 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), each of the
Sellers severally agrees to sell to each of the Purchasers, and each of the
Purchasers, severally and not jointly, agrees to purchase from each of the
Sellers, at a price per share equal to $1.63, the aggregate number of Purchased
Shares set forth opposite its name on SCHEDULE 2.1 hereto for the aggregate
purchase price set forth opposite its 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 Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx on August 31,
2001 or at such other time, place and date to which E*TRADE Group, Inc.
("E*TRADE") and the Purchasers may agree in writing (the "CLOSING DATE"). On the
Closing Date, (a) each Seller shall deliver to each Purchaser stock certificates
representing the Purchased Shares being sold by such Seller to such Purchaser
(the "STOCK CERTIFICATES") and stock powers, in the form attached hereto as
EXHIBIT A (the "STOCK POWERS"), executed by such 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 E*TRADE designated in writing by E*TRADE. E*TRADE shall
immediately thereafter wire to each other Seller the aggregate purchase price
for the number of Purchased Shares sold by such Seller as set forth on SCHEDULE
2.1 hereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
---------------------------------------------
Each of the Sellers hereby represents and warrants (severally
and not jointly) to each of the Purchasers as follows:
3.1 EXISTENCE AND POWER; CAPACITY. Such Seller, if it is
not an individual, (a) is a corporation or trust, as the case may be, 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. Such Seller,
if he or she is an individual, has the legal capacity to execute, deliver and
perform his or her obligations under this Agreement.
3.2 AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by such 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 and,
if such Seller is a corporation or trust, do not contravene the terms of such
Seller's Certificate of Incorporation, as amended, and by-laws, as amended, or
other organization documents, as the case may be, 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, unit, award, decree or order of any nature of any Governmental
Authority (collectively, "ORDERS") against, or binding upon, such Seller.
3.3 TITLE TO SECURITIES. Such 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. Such 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.
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 such Seller of this Agreement or the transactions
contemplated hereby.
3.5 BINDING EFFECT. This Agreement has been duly executed
and delivered by such Seller, and this Agreement constitutes the legal, valid
and binding obligation of such Seller, enforceable against such 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
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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 PRIVATE OFFERING. No form of general solicitation or
general advertising was used by such Seller or any of such 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 IV 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 IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
------------------------------------------------
Each of the Purchasers hereby represents and warrants
(severally and not jointly) to the Sellers as follows:
4.1 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.
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
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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.
4.6 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 such 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.
4.7 ACCREDITED INVESTOR. Such Purchaser is an "ACCREDITED
INVESTOR" within the meaning of Rule 501 of Regulation D under the Securities
Act.
ARTICLE V
CONDITIONS
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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: Each of
the Sellers 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 shall have provided satisfactory evidence thereof to the
Purchasers; and all of the representations and warranties of the Sellers 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 SELLERS TO CLOSE. The
obligation of the Sellers to sell the Purchased Shares and to perform its other
obligations hereunder shall be subject to the satisfaction as determined by, or
waiver by, all of the Sellers 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; 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 Sellers 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 Sellers:
E*TRADE Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Legal Affairs Officer
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.
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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). None of the Sellers may 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.
6.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any
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 Sellers 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 E*TRADE 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 any of the Sellers in any case shall entitle such Seller to any
other or further notice or demand in similar or other circumstances.
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 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.
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6.8 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.
6.9 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.
6.10 PAYMENT OF FEES. Each party shall pay its own fees
and expenses incurred in connection with this Agreement or otherwise.
6.11 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.
E*TRADE GROUP, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxxx XxxXxxxxx
Title: Corporate Secretary
GENERAL ATLANTIC PARTNERS 61, L.P.
By: General Atlantic Partners, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxxx
The Cotsakos Revocable Trust U/A/D 9/3/87
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Trustee
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Cotsakos Ventures, LLC
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
Xxxxxx Revocable Trust
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Trustee
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxx Xxxxxx
--------------------------------------------
Xxxxxxxx XxxXxxxxx JTWROS
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx JTWROS
/s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxxx
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SCHEDULE 2.1
------------
------------------------------------------------------------------------------------------------------------------------------------
PURCHASED PURCHASE PRICE FOR PURCHASED PURCHASE PRICE FOR
SHARES SOLD TO PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SOLD
SELLERS GAP LP SOLD TO GAP XX XXXXX XX TO GAPCO II
------------------------------------------------------------------------------------------------------------------------------------
E*TRADE Group, Inc. 1,891,831 $3,083,684.53 408,169 $665,315.47
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx 5,954 9,705.02 1,284 2,092.92
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxxx 148,437 241,952.31 32,026 52,202.38
------------------------------------------------------------------------------------------------------------------------------------
The Cotsakos Revocable Trust 74,218 120,975.34 16,013 26,101.19
U/A/D 9/3/87
------------------------------------------------------------------------------------------------------------------------------------
Cotsakos Ventures, LLC 49,479 80,650.77 10,675 17,400.25
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Revocable Trust 4,535 7,392.05 979 1,595.77
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx 4,535 7,392.05 979 1,595.77
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx XxxXxxxxx and Xxxxxx 1,133 1,846.79 245 399.35
Xxxxxx as JTWROS
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 101,793 165,922.59 21,961 35,796.43
------------------------------------------------------------------------------------------------------------------------------------
TOTAL 2,281,915 $3,719,521.45 492,331 $802,499.53
------------------------------------------------------------------------------------------------------------------------------------
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AGGREGATE PURCHASED AGGREGATE PURCHASE PRICE
SHARES SOLD TO THE FOR PURCHASED SHARES SOLD
SELLERS PURCHASERS TO THE PURCHASERS
--------------------------------------------------------------------------------
E*TRADE Group, Inc. 2,300,000 $3,749,000.00
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx 7,238 11,797.94
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxxx 180,463 $294,154.69
--------------------------------------------------------------------------------
The Cotsakos Revocable Trust 90,231 147,076.53
U/A/D 9/3/87
--------------------------------------------------------------------------------
Cotsakos Ventures, LLC 60,154 98,051.22
--------------------------------------------------------------------------------
Xxxxxx Revocable Trust 5,514 8,987.82
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx 5,514 8,987.82
--------------------------------------------------------------------------------
Xxxxxxxx XxxXxxxxx and Xxxxxx 1,378 2,246.14
Xxxxxx as JTWROS
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 123,754 201,719.02
--------------------------------------------------------------------------------
TOTAL 2,774,246 $4,522,020.98
--------------------------------------------------------------------------------
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EXHIBIT A
---------
STOCK POWER
FOR VALUE RECEIVED, _____________________________ ("Seller") hereby sells,
assigns and transfers unto General Atlantic Partners 61, L.P. ___________ shares
of 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 attorney to transfer the Shares
on the books of the Company.
Dated: August __, 2001
[SELLER]
By: ________________________________________
Name:
Title:
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STOCK POWER
FOR VALUE RECEIVED, _____________________________ ("Seller") hereby sells,
assigns and transfers unto GAP Coinvestment Partners II, L.P. ___________ shares
of 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 attorney to transfer the Shares
on the books of the Company.
Dated: August __, 2001
[SELLER]
By:_________________________________________
Name:
Title:
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SCHEDULE I
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SELLERS
-------
E*TRADE Group, Inc.
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
The Cotsakos Revocable Trust U/A/D 9/3/87
Cotsakos Ventures, LLC
Xxxxxx Revocable Trust
Xxxxx Xxxxxxxxx
Xxxxxxxx XxxXxxxxx and Xxxxxx Xxxxxx as JTWROS
Xxxxxx Xxxxxxxxxx
