Exhibit 10.1
STANDSTILL AGREEMENT
This Standstill Agreement is made and entered into as of December 4,
2001 (this "Standstill Agreement"), by and between SoundView Technology Group,
Inc., a Delaware corporation ("SNDV"), and General Atlantic Partners, LLC, a
Delaware Limited Liability Company ("GAP"), General Atlantic Partners 61, L.P.,
a Delaware Limited Partnership ("GAP 61"), and GAP Coinvestment Partners II,
L.P., a Delaware Limited Partnership ("GAP Co. II") (Collectively, the "Group").
In order to induce the Board of Directors of SNDV to permit the Group to
acquire up to 24.9% of the outstanding Common Stock of SNDV without being
deemed to be an "Acquiring Person" under the Rights Agreement dated as of May
17, 1999 between SNDV and American Stock Transfer & Trust Company, as Rights
Agent, and in consideration of the representations, warranties, covenants and
agreements contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. PROHIBITED TRANSACTIONS INVOLVING THE GROUP. Subject to Section 5
below, for a period from the date hereof until the earlier of (i) the fifth
anniversary of the date hereof and (y) the latest date on which the members of
the Group and all Affiliates thereof collectively cease to have beneficial
ownership of more than five (5%) percent of the outstanding units of any class
of voting securities of any member of the SNDV Group (as defined in Section 1(a)
below), no member or members of the Group will, and each member of the Group
will cause each "affiliate" or "associate" (collectively referred to as an
"Affiliate") of GAP, GAP 61, GAP Co. II or the Group as such terms are defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), not to:
(a) purchase, acquire or beneficially own or offer or agree to purchase,
acquire or beneficially own, whether directly or indirectly or alone or in
concert with others, by purchase, gift or otherwise, an aggregate for the Group
and such Affiliates of 24.9% or more of any class of voting securities of SNDV
or any of its subsidiaries (together with SNDV, the "SNDV Group"), or any
successor to SNDV by merger, consolidation, sale of assets, combination or
otherwise (each, a "Transaction") if the holders of a majority of the
outstanding voting securities of SNDV prior to such Transaction continue to own
a majority of the voting securities of the surviving person of such Transaction
and entitled to vote in the election of the members of the Board of Directors
(such successor being referred to as a "Successor");
(b) make, or in any way participate in, whether directly or indirectly
or alone or in concert with others, any "solicitation" of "proxies" (as such
terms are defined or used in Regulation 14A under the Exchange Act) or become a
"participant" in any "election contest" (as such terms are defined or used in
the Exchange Act and the rules thereunder) with respect to any member of the
SNDV Group or any Successor or seek to advise or influence any person (within
the meaning of Section 13(d)(3) of the Exchange Act) with respect to the voting
of any voting securities of SNDV or any Successor; or, with respect to the
foregoing, execute any written consent in lieu of a meeting of holders of any
class of voting securities of any member of the SNDV Group or any Successor;
(c) initiate, propose or otherwise solicit shareholders for the approval
of one or more shareholder proposals with respect to any member of the SNDV
Group or any Successor as described in Rule 14a-8 under the Exchange Act or
otherwise;
2
(d) acquire or affect the control of any member of the SNDV Group or any
Successor or directly or indirectly form, join or in any way participate in or
encourage the formation of any "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) which has or seeks to acquire beneficial ownership of
voting securities of any member of the SNDV Group or any Successor;
(e) acquire, offer to acquire or agree to acquire, whether directly or
indirectly or alone or in concert with others, by purchase, exchange or
otherwise, all or substantial portions of the assets, tangible and intangible,
of SNDV or any Successor;
(f) arrange, or in any way participate in or encourage, directly or
indirectly, any financing for the purchase of voting securities or assets of any
member of the SNDV Group or any Successor;
(g) seek, whether alone or in concert with others, to propose any
business combination to any member of the SNDV Group or any Successor or the
holders of their voting securities, or (ii) except through a representative
nominated or elected to the Board of Directors of any member of the SNDV Group
or any Successor, seek to control, change or influence the management, board of
directors or policies of any member of the SNDV Group or any Successor or
nominate any person as a director of SNDV or any Successor who is not nominated
by the then incumbent directors, or propose any matter to be voted upon by the
holders of voting securities of any member of the SNDV Group or any Successor,
whether pursuant to the proxy rules of the Securities and Exchange Commission or
otherwise;
(h) encourage or render advice to or make any recommendation or proposal
to any person or other entity to engage in any of the actions covered by this
Section 1;
(i) announce an intention to do, or enter into any arrangement or
understanding with any person to do, any of the actions restricted or prohibited
under this Section 1; or
(j) propose or announce any proposal to amend or terminate the
provisions of this Section 1without the prior agreement of the Board of
Directors.
The foregoing restrictions shall not prohibit or limit (I) a nominee or
designee of the Group who currently serves on the Board of Directors of any
member of the SNDV Group or his or her successor from engaging in lawful acts in
his or her capacity as a director (whether on the Board of Directors or any
committee thereof) or such nominee or designee from receiving from the
securities, including Convertible Securities in his or her capacity as a member
of the Board of Directors, (II) the Group or any Affiliate thereof from
acquiring or beneficially owning any voting securities of any member of the SNDV
Group or any Successor (x) as a result of a stock split, stock dividend or
similar recapitalization of such member of the SNDV Group or such Successor or
(y) acquires or receives in a distribution without consideration to all
stockholders, (III) the Group or any Affiliate thereof from (x) voting its
voting securities on any matter to be voted on by the stockholders of the SNDV
Group or any Successor, whether at a regular or special meeting of such
stockholders or in any action taken by written consent in lieu thereof or (y)
communicating with any person with respect to the voting of any securities or
soliciting any proxies for the election to the Board of Directors of a nominee
or designee of the Group who currently serves on the Board of Directors of any
member of the SNDV Group or any Successor
3
or his or her successor, or (IV) inthe case of any proposed merger,
consolidation, sale of assets, combination or otherwise that requires the vote
of the holders of voting securities of the SNDV Group or any Successor or any
tender offer or exchange offer for any or all of the voting securities of the
Company made without the encouragement by or the participation of the Group or
any Affiliate thereof, the Group or any Affiliate thereof from making an offer
to the Board of Directors, in respect of any such transaction, upon terms more
favorable to the stockholders of the SNDV Group or such Successor than those
offered in such proposed transaction.
2. CERTAIN DEFINITIONS. For the purposes of this Standstill Agreement,
(a) the term "voting securities" shall mean (i) any securities which are
entitled to vote upon the election of directors or the merger, consolidation,
sale of assets or similar extraordinary matters, whether such securities are
entitled to vote on such matters in all events or only upon the occurrence of a
default or other contingencies, or (ii) any direct or indirect options, warrants
or other rights to acquire, or any securities convertible into or exchangeable
for, whether presently or only at some determinable or indeterminable date in
the future and whether without any contingency or subject to any contingency or
contingencies, any security described in (i) above (a "Convertible Security");
(b) the term "beneficially own" shall have the meaning ascribed thereto in the
Rights Agreement dated as of May 17, 1999 between SNDV and American Stock
Transfer & Trust Company, as Rights Agent; (c) securities constituting a right
to acquire, or which are convertible into or exchangeable for, other securities
shall be considered to be of the same class as such underlying securities on an
as exercised, exchanged or converted basis unless such securities are themselves
voting securities and have different voting rights than such underlying
securities; and (d) the term "person" refers to any natural person as well as
any corporation, partnership, limited liability company, trust or other entity
of any sort whatsoever or any group or organization.
3. REPRESENTATIONS AND WARRANTIES. Each of the parties to this
Standstill Agreement represents and warrants with respect to itself that such
party is duly authorized to execute, deliver and perform this Standstill
Agreement, that this Standstill Agreement has been duly executed by such party
and that this Standstill Agreement is a valid and binding agreement of such
party, enforceable against such party in accordance with its terms.
4. SPECIFIC PERFORMANCE. Each of the parties to this Standstill
Agreement acknowledges and agrees that in the event of any breach of this
Agreement, the non-breaching party would be irreparably harmed and could not be
made whole by monetary damages. Each party therefore agrees that in the event of
a breach of this Standstill Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of this
Standstill Agreement. Such remedies shall, however, be cumulative and not
exclusive, and shall be in addition to any other remedy which a party may have.
5. MISCELLANEOUS; TERM. This Standstill Agreement shall terminate upon
the earlier of (i) the consummation of any merger, consolidation, sale of
assets, tender offer, exchange offer, combination or otherwise in which the
holders of a majority of the voting securities of SNDV prior to such transaction
do not own a majority of the voting securities of surviving person of such
transaction or (ii) the acquisition by any person or persons, but not including
the Group or any member or Affiliate of the Group, who act as a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) of not less than 40% of the
voting securities of SNDV or any Successor in one or more transactions. This
Standstill Agreement shall be construed in accordance with and governed by the
laws of the State of Delaware without regard
4
to conflicts or choice of lawprovisions. This Standstill Agreement may be
executed in two or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Standstill Agreement has been duly executed by
the parties hereto all as of the date first written above.
SOUNDVIEW TECHNOLOGY GROUP, INC.
By:
----------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
GENERAL ATLANTIC PARTNERS, LLC
By:___________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS 61, L.P.
By: General Atlantic Partners, LLC, its general partner
By:___________________________
Name:
Title:
GAP COINVESTMENT PARTNERS II, L.P.
By:
By:___________________________
Name:
Title:
