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Exhibit 4.6
AMENDMENT
TO
STOCK PURCHASE AGREEMENT,
STOCKHOLDERS AGREEMENT
AND
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of May 29, 1997 among
OptiMark Technologies, Inc. (the "Company"), General Atlantic Partners 35, L.P.
("GAP 35"), GAP Coinvestment Partners, L.P. ("GAP Coinvestment"), Dow βββββ� &
Company, Inc. ("Dow βββββ�"), βββββ� β�. ββββββ ("ββββββ"; and, together with GAP
35, GAP Coinvestment and Dow, the "Investors"), βββββββ� β�. ββββββ, βββββββ� β�.
βββββ�, ββββ β�. βββββββ�, ββββ β�. ββββββ and The Pacific Stock Exchange
Incorporated amends (i) that certain Stock Purchase Agreement, dated August 27,
1996, as amended on October 25, 1996 and March 19, 1997 (the "Stock Purchase
Agreement"), among the Company and the Investors: (ii) that certain Stockholders
Agreement, dated as of August 27, 1996 (the "Stockholders Agreement"), among the
Company, the Investors, βββββββ� β�. ββββββ, βββββββ� β�. βββββ�, ββββ β�. βββββββ� and
ββββ β�. ββββββ; and (iii) that certain Registration Rights Agreement, dated as
of August 27, 1996, as amended on March 19, 1997 (the "Registration Rights
Agreement"), among the Company, the Investors and The Pacific Stock Exchange
Incorporated.
WHEREAS, pursuant to the Stock Purchase Agreement, originally dated
as of August 27, 1996, the Investors agreed to purchase, and the Company agreed
to sell, shares of Series A Convertible Participating Preferred Stock, par value
$.01 per share ("Preferred Stock"), of the Company in two sequential closings;
WHEREAS, on August 27, 1996, the Company and the Investors
consummated the First Closing (as defined in the Stock Purchase Agreement);
WHEREAS, on March 19, 1997, the Company and the Investors
consummated the Second Closing (as defined in the Stock Purchase Agreement) and
in connection therewith the Company issued to each Investor a warrant, dated as
of March 19, 1997, to purchase Common Stock, par value $.01 per share, of the
Company (each, an "Old Warrant;" and collectively, the "Old Warrants");
WHEREAS, the Company would like to sell, and each of GAP 35, GAP
Coinvestment and Dow βββββ� would like to purchase, additional shares of
Preferred Stock pursuant to a Third Closing (as defined below); and
WHEREAS, in order to induce GAP 35, GAP Coinvestment and Dow βββββ�
to consummate the Third Closing, the Company has agreed to issue to each of GAP
35, GAP Coinvestment and Dow βββββ� a warrant to purchase Common Stock,
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par value $.01 per share, of the Company (each, a "New Warrant;" and
collectively, the "New Warrants") in exchange for each such holder's Old
Warrant;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to the Stock Purchase Agreement
(a) The definition of "Transaction Documents" in the Stock Purchase
Agreement is hereby amended by deleting it entirely and replacing it with the
following:
"'Transaction Documents' means collectively this Agreement,
the Certificate of Designation, the Stockholders Agreement, the
Registration Rights Agreement, the Employment, Trade Secret and
Noncompetition Agreements between the Company and Messrs. ββββββ and
βββββββ�, the PSE-OptiMark Agreement, the PSE Revenue Sharing
Agreement, the PSE Warrant, the Warrants issued in connection with
the Second Closing and the New Warrants issued in connection with
the Third Closing."
(b) Section 2.1 of the Stock Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
"2.1 Description of Securities. The Company has authorized the
issuance and sale of the Preferred Shares to the Investors for a
purchase price of $7.33 per Preferred Share. The Preferred Shares
shall be sold in three sequential closings of 654,844 shares (the
"First Closing"), 1,527,968 shares (the "Second Closing") and
1,364,256 shares (the "Third Closing"), respectively, divided among
the Investors as set forth opposite such Investor's name in Schedule
2.1 hereto. The Company has authorized and has reserved, and
covenants to continue to reserve, a sufficient number of shares of
Common Stock to satisfy the rights of conversion of the holders of
the Preferred Shares."
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(c) The Stock Purchase Agreement is hereby amended by inserting after
Section 2.3 the following new Section:
"2.4 Third Closing.
(a) Subject to Section 2.4(b), the Third Closing shall occur
on May 29, 1997.
(b) The obligation of the Investors to purchase the Preferred
Shares set forth opposite each Investor's name in Schedule 2.1 at
the Third Closing and to pay the purchase price therefor at the
Third Closing shall be subject to the satisfaction, or waiver by a
Consent of the Investors, of the following conditions on the date of
the Third Closing:
(i) The representations and warranties of the Company
contained in Section 3 hereof shall be true and correct in all
material respects on and as of the date of the Third Closing
as if made at and on such date.
(ii) The Company shall have performed and complied in
all material respects with all of its covenants and conditions
set forth herein that are required to be performed or complied
with by the Company on or before the date of the Third
Closing.
(iii) The Company shall have delivered to the Investors
an Officer's Certificate dated as of the Third Closing as to
(i) the due adoption and continuing effectiveness of the
resolutions of the Board, attached thereto, approving the
Transaction Documents and all transactions contemplated
thereby, (ii) the accuracy and continuing effectiveness of the
Certificate of Incorporation and By-laws of the Company
attached thereto, and (iii) the incumbency and specimen
signature of each officer executing the Transaction Documents
and the other closing documents on behalf of the Company.
(iv) The Investors shall have received a certificate
from the Company, in form and substance reasonably
satisfactory to the Investors, dated the date of the Third
Closing and signed by the Chief
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Executive Officer of the Company, certifying that (A) the
representations and warranties of the Company contained in
Section 3 hereof are true and correct in all material respects
on and as of the date of the Third Closing as if made at and
on such date and (B) the Company has performed and complied in
all material respects with all of the covenants and conditions
set forth herein that are required to be performed or complied
with by the Company on or before the date of the Third
Closing.
(v) The Investors shall have received an opinion of
counsel to the Company, dated as of the date of the Third
Closing, substantially in the form of the First Legal Opinion.
(vi) The Company shall issue to each Investor set forth
below a warrant, substantially in the form attached hereto as
Exhibit A (each, a "New Warrant" and collectively, the "New
Warrants"), exercisable into that number of outstanding shares
of Common Stock as set forth opposite such Investor's name
below:
Investor Shares of Common Stock
-------- ----------------------
GAP 35 2,763,699
GAP Coinvestment 478,945
Dow 2,161,764
(c) At the Third Closing, the Company shall issue and sell to
each Investor, and each Investor severally and not jointly shall
purchase from the Company, the number of Preferred Shares set forth
opposite such Investor's name in Schedule 2.1. At the Third Closing,
the following shall occur:
(i) The Company shall execute and deliver to the
Investors or their designated nominees certificates evidencing
the Preferred Shares so purchased.
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(ii) The Investors shall deliver the purchase price for
such Preferred Shares to the Company by wire transfer.
(iii) Each of GAP 35, GAP Coinvestment and Dow βββββ�
shall surrender the Warrant previously issued to it in
connection with the Second Closing to the Company for
cancellation."
(d) Schedule 2.1 to the Stock Purchase Agreement is hereby deleted in its
entirety and replaced with Exhibit B, attached hereto.
2. Amendment to the Stockholders Agreement
(a) The Stockholders Agreement is hereby amended by inserting the
following definition:
"'Dow βββββ� Director' has the meaning set forth in Section 6.3(c) of
this Agreement."
(b) Section 2.2 of the Stockholders Agreement is hereby amended by
inserting, after the last sentence thereof, the following:
"If any Permitted Transferee of Dow βββββ� to whom or which Shares
have been transferred in accordance with this Section 2.2 ceases to
be a Permitted Transferee of Dow βββββ�, then, prior to such event,
the Dow βββββ� Stockholders (other than such Permitted Transferee)
may repurchase such Shares or, if such Dow βββββ� Stockholders do not
wish to repurchase such Shares, then such Permitted Transferee shall
offer the Shares held by such Permitted Transferee to the Company,
the General Atlantic Stockholders and the ββββββ Stockholders in
accordance with Section 3.1.
Notwithstanding anything contained in this Agreement to the
contrary, if there is a Change of Control in Dow βββββ� and the
Person who effects such a Change of Control (as defined below) is or
thereafter becomes an OptiMark Competitor (as defined below), then
(i) as soon as practicable after a Change of Control (or, if later,
the date on which such Person becomes an OptiMark
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Competitor), all of the Dow βββββ� Stockholders shall offer their
Shares and Common Stock Equivalents to the Company, the OptiMark
Stockholders, the General Atlantic Stockholders and the ββββββ
Stockholders in accordance with Section 3.1 at an Offer Price that
is mutually agreed upon by Dow βββββ� and the Company and (ii) the
Dow βββββ� Stockholders shall cause the Dow βββββ� Directors to
promptly resign from the Board of Directors and the Dow βββββ�
Stockholders shall no longer be entitled to designate a director
pursuant to Section 6.3. If Dow βββββ� and the Company fail to agree
on an Offer Price within 5 Business Days after the occurrence of a
Change of Control, then (i) the Offer Price with respect to the
Shares shall be the greater of (x) the Fair Value per Share as
determined in accordance with Section 3.2.2 or (y) the Exercise
Price (as defined in the New Warrants) in effect at the time of the
Change of Control or, if the New Warrants have expired or been fully
exercised, the last exercise price in effect under the New Warrants
and (ii) the Offer Price with respect to the New Warrants shall
equal the difference, if any, between the Offer Price with respect
to the Shares and the exercise price in effect under the New
Warrants. If there is a Change of Control in Dow βββββ� and the
Person who effects such a Change of Control is not an OptiMark
Competitor, then the Dow βββββ� Stockholders shall have no obligation
then to offer or transfer any portion of their Shares or Common
Stock Equivalents to the Company, any Stockholder or any other
Person, but the Dow βββββ� Stockholders shall cause the Dow βββββ�
Directors to promptly resign from the Board of Directors and the Dow
βββββ� Stockholders shall no longer be entitled to designate a
director pursuant to Section 6.3.
A "Change of Control" in Dow βββββ� shall have occurred if any one
Person or group within the meaning of Section 13(d)(3) of the
Exchange Act (other than the "parent" of Dow βββββ� described in
footnote (6) on page 6 of its 1997 proxy statement or any Person who
is an Affiliate of or of familial relationship to any Person
included within such "parent") has the power to elect, directly or
indirectly, as of any date, a majority of the directors serving on
the board of directors of Dow βββββ�.
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"OptiMark Competitor" shall mean: (i) Microsoft Corp., Reuters
Limited, Cantor ββββββββββ ββ, Investment Technology Group, Inc.,
AZX Inc., State Street Boston Corp., Bloomberg LP and Bridge
Information Systems Inc. or (ii) any Person who operates an
electronic matching service for the trading of securities."
(c) Section 4.1 of the Stockholders Agreement is hereby amended by
inserting, after clause (e), the following:
"(f) capital stock of the Company issued pursuant to exercise of the
Warrants and the New Warrants..."
(d) Section 6.3 of the Stockholders Agreement is hereby deleted in its
entirety and replaced with the following:
"6.3 Election of Directors: Number and Composition. Each
Stockholder shall vote its Snares and each Voting Committee Member
shall cause the Voting Committee to vote its Shares at any
Stockholders Meeting, or act by Written Consent with respect to such
Shares, and take all other actions necessary to ensure that the
number of directors constituting the entire Board of Directors shall
be nine. Each Stockholder shall vote its Shares and each Voting
Committee Member shall cause the Voting Committee to vote its Shares
at any Stockholders Meeting called for the purpose of filling the
positions on the Board of Directors, or in any Written Consent
executed for such purpose, and to take all other actions necessary
to ensure the ejection to the Board of Directors of the following
individuals under the following circumstances:
(a) two individuals designated by the General Atlantic
Stockholders (each a "General Atlantic Director"), for so long as
the General Atlantic Stockholders own shares of Common Stock or
Common Stock Equivalents convertible into or exchangeable for shares
of voting capital stock of the Company representing (after giving
effect to any adjustments) greater than or equal to 5% of the total
number of shares of Common Stock outstanding on an as converted
basis;
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(b) one General Atlantic Director; for so long as the General
Atlantic Stockholders own shares of Common Stock or Common Stock
Equivalents convertible into or exchangeable for shares of voting
capital stock of the Company representing (after giving effect to
any adjustments) less than 5% but greater than or equal to 2% of the
total number of shares of Common Stock outstanding on an as
converted basis;
(c) two individuals designated by the Dow βββββ� Stockholders
(each a "Dow βββββ� Director"); for so long as the Dow βββββ�
Stockholders own shares of Common Stock or Common Stock Equivalents
convertible into or exchangeable for shares of voting capital stock
of the Company representing (after giving effect to any adjustments)
greater than or equal to 5% of the total number of shares of Common
Stock outstanding on an as convened basis.
(d) one Dow βββββ� Director; for so long as the Dow βββββ�
Stockholders own shares of Common Stock or Common Stock Equivalents
convertible into or exchangeable for shares of voting capital stock
of the Company representing (after giving effect to any adjustments)
less than 5% but greater than or equal to 2% of the total number of
shares of Common Stock outstanding on an as converted basis.
Notwithstanding anything to the contrary contained in this
Agreement. if at any time the General Atlantic Stockholders or the
Dow βββββ� Stockholders own shares of Common Stock or Common Stock
Equivalents convertible into or exchangeable for shares of voting
capital stock of the Company representing (after giving effect to
any adjustments) less than 2% of the total number of shares of
Common Stock outstanding on an as converted basis, then the General
Atlantic Stockholders or the Dow βββββ� Stockholders, as the case may
be, shall no longer be entitled to designate a director pursuant to
this Section 6.3.
All other directors of the Company shall be elected to the
Board of Directors in accordance with the By-laws of the Company."
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(e) Section 6.4 of the Stockholders Agreement is hereby amended by
inserting after Section 6.4.2 the following:
"6.4.3 Removal of Dow βββββ� Directors. If at any time the Dow
βββββ� Stockholders notify the other Stockholders of their wish to
remove at any time and for any reason (or no reason) any Dow βββββ�
Director, then each Stockholder shall vote all of its Shares and
each Voting Committee Member shall cause the Voting Committee to
vote all of its Shares so as to remove such Dow βββββ� Director.
6.4.4 Replacement of Directors.
(a) If at any time, a vacancy is created on the Board of
Directors by reason of the death, removal or resignation of a Dow
βββββ� Director, then the Dow βββββ� Stockholders shall designate an
individual who shall be elected to fill such vacancy until the next
Stockholders Meeting.
(b) Upon receipt of notice of the designation of a nominee,
each Stockholder and each Voting Committee Member shall, as soon as
practicable after the date of such notice, take action, including
(i) the voting of its Shares (in the case of each Stockholder) and
(ii) causing the Voting Committee to vote its shares (in the case of
each Voting Committee Member), to elect the director designated by
the Dow βββββ� Stockholders to fill such vacancy."
(f) Section 6.5 of the Stockholders Agreement is hereby deleted in its
entirety and replaced with the following:
"6.5 Reimbursement of Expenses. Notwithstanding anything to
the contrary contained in this Agreement, the Company shall
reimburse (i) GAP LP and GAP Coinvestment, or their designee, for
all reasonable travel and other out-of-pocket expenses incurred by
the General Atlantic Director(s) in connection with their duties as
directors of the Company and (ii) Dow βββββ� for all reasonable
travel and other out-of-pocket expenses incurred by the Dow βββββ�
Director(s) in connection with their duties as directors of the
Company."
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(g) Section 6.6 of the Stockholders Agreement is hereby amended by
deleting the first sentence thereof in its entirety and replacing it with the
following:
"Notwithstanding anything to the contrary contained in this
Agreement, for so long as there is at least one General Atlantic
Director elected pursuant to Section 6.3 on the Board of Directors,
the Board of Directors shall not take, approve or otherwise ratify
any of the following actions except with the consent of at least a
majority of the directors constituting the entire Board of
Directors; provided, however, such majority includes at least one
General Atlantic Director or one Dow βββββ� Director:"
3. Amendment to the Registration Rights Agreement.
(a) The definition of "Registrable Securities" in the Registration Rights
Agreement is hereby amended by deleting part (d) of such definition in its
entirety and replacing it with the following:
"(d) to the extent exercisable at the time such amount of
Registrable Securities is to be determined, any and all shares of
Common Stock issuable to (i) PSE upon exercise of the PSE Warrant
and (ii) each Investor as defined in the Stock Purchase Agreement
upon exercise of their respective Warrants and New Warrants (as
defined in the Stock Purchase Agreement)."
(b) Section 3 of the Registration Rights Agreement is hereby amended by
deleting the first sentence thereof in its entirety and replacing it with the
following:
"At any time after twelve months following the IPO Effectiveness
Date, the General Atlantic Stockholders or the Dow βββββ�
Stockholders may make a written request to the Company to register
(such General Atlantic Stockholders or Dow βββββ� Stockholders making
such request being referred to hereinafter as the "Initiating
Holders"), under the Securities Act and under the securities or
"blue sky" laws of any jurisdiction reasonably designated by such
holder or holders, the number of Registrable Securities, the offer
and sale of which shall result in net proceeds (after expenses and
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underwriting commissions and discounts) to such Initiating Holders
of at least $5,000,000 (a "Demand Registration")."
(c) Section 3 of the Registration Rights Agreement is hereby amended by
deleting the third sentence thereof in its entirety and replacing it with the
following:
"The Company shall not be required to effect more than two (2)
Demand Registration at the request of the General Atlantic
Stockholders and one (1) Demand Registration at the request of the
Dow βββββ� Stockholders pursuant to this Section 3."
4. Miscellaneous
(a) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
(b) Assignment. This Amendment shall be binding upon the successors and
permitted assigns of the parties.
(c) Counterparts. This Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original but all such counterparts together shall constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
OptiMark Technologies Inc.
By: /s/ ββββ β�. ββββββ
-----------------------------------
Name: ββββ β�. ββββββ
Title: Senior VP
General Atlantic Partners 35, L.P.
By: General Atlantic Partners, LLC its
General Partner
By: /s/ ββββββ β�. βββββββ�
-------------------------------
A Managing Member
GAP Coinvestment Partners, L.P.
By: /s/ ββββββ β�. βββββββ�
-----------------------------------
General Partner
Dow βββββ� & Company, Inc.
By: /s/ βββββββ� β�. βββββββ�
-----------------------------------
Name: βββββββ� β�. βββββββ�
Title: President and Chief
Operating Officer
/s/ βββββ� β�. ββββββ
---------------------------------------
βββββ� β�. ββββββ
/s/ βββββββ� β�. ββββββ
---------------------------------------
βββββββ� β�. ββββββ, in his capacity as a
Voting Committee Member for purposes of
Sections 6 and 21 of the Stockholders
Agreement and in his individual
capacity as a Major Stockholder (as
defined therein)
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/s/ βββββββ� β�. βββββ�
---------------------------------------
βββββββ� β�. βββββ�
/s/ ββββ β�. βββββββ�
---------------------------------------
ββββ β�. βββββββ�, in his capacity as a
Voting Committee Member for purposes of
Sections 6 and 21 of the Stockholders
Agreement and in his individual
capacity as a Major Stockholder (as
defined therein)
/s/ ββββ β�. ββββββ
---------------------------------------
ββββ β�. ββββββ, in his capacity as a
Voting Committee Member for purposes of
Sections 6 and 21 of the Stockholders
Agreement
The Pacific Stock Exchange Incorporated
By: /s/ ββββ β�. ββββββββ
-----------------------------------
Name: ββββ β�. ββββββββ
Title: Sr. Vice President, General
Counsel and Director of
Legal Affairs