-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IjciNUFYEHwS4rMqJh2ITVWeoakfWE1zTCmddN7CVvPaDUjnnE4GRceIm/IMbVGb lJ/AvUrd+a1io5C71Qhtqg== 0001021408-02-012233.txt : 20021003 0001021408-02-012233.hdr.sgml : 20021003 20021003171009 ACCESSION NUMBER: 0001021408-02-012233 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20021003 GROUP MEMBERS: SCP PRIVATE EQUITY II, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: USDATA CORP CENTRAL INDEX KEY: 0000943895 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 752405152 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49134 FILM NUMBER: 02781294 BUSINESS ADDRESS: STREET 1: 2435 NORTH CENTRAL EXPRESSWAY CITY: RICHARDSON STATE: TX ZIP: 75080 BUSINESS PHONE: 9726809700 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SCP PRIVATE EQUITY PARTNERS II LP CENTRAL INDEX KEY: 0001118995 IRS NUMBER: 233037972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 435 DEVON PARK DRIVE STREET 2: BLDG 300 CITY: WAYNE STATE: PA ZIP: 19087 BUSINESS PHONE: 6109952900 MAIL ADDRESS: STREET 1: BUILDING 300 435 DEVON PARK DRIVE CITY: WAYNE STATE: PA ZIP: 19087 SC 13D/A 1 dsc13da.txt SCHEDULE 13D AMENDMENT #3 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* USDATA Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 Par Value Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 917294 10 0 - -------------------------------------------------------------------------------- (CUSIP Number) Charles C. Freyer, Esquire - -------------------------------------------------------------------------------- General Counsel - -------------------------------------------------------------------------------- SCP Private Equity Partners II, L.P. - -------------------------------------------------------------------------------- 435 Devon Park Drive, Building 300 - -------------------------------------------------------------------------------- Wayne, PA 19087 - -------------------------------------------------------------------------------- 610-254-4242 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) copy to: Spencer W. Franck, Jr. - -------------------------------------------------------------------------------- Saul Ewing LLP - -------------------------------------------------------------------------------- 1200 Liberty Ridge Drive, Suite 200 - -------------------------------------------------------------------------------- Wayne, PA 19087-5055 - -------------------------------------------------------------------------------- September 30, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. CUSIP No. 917294 10 0 The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 917294 10 0 Page 1 of 9 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only) SCP Private Equity Partners II, L.P. 23-3037972 - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- Number of Shares 7. Sole Voting Power Beneficially Owned By 0 Each Reporting Person 8. Shared Voting Power With 5,557,011 9. Sole Dispositive Power 0 10. Shared Dispositive Power 5,557,011 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,557,011 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 73%* - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN - -------------------------------------------------------------------------------- CUSIP No. 917294 10 0 Page 2 of 9 - -------------------------------------------------------------------------------- * Based on 3,089,331 shares of the Issuer's common stock, $0.01 par value per share, outstanding as of October 1, 2002. CUSIP No. 917294 10 0 Page 3 of 9 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only) SCP Private Equity II, LLC 23-3047235 - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIREd PURSUANT TO ITEMS 2(d) OR 2(e) [_] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- Number of Shares 7. Sole Voting Power Beneficially Owned By 0 Each Reporting Person 8. Shared Voting Power With 5,557,011 9. Sole Dispositive Power 0 10. Shared Dispositive Power 5,557,011 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,557,011 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 73% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO - -------------------------------------------------------------------------------- CUISP No. 917294 10 0 Page 4 of 9 - -------------------------------------------------------------------------------- * Based on 3,089,331 shares of the Issuer's common stock, $0.01 par value per share, outstanding as of October 1, 2002. CUSIP No. 917294 10 0 Page 5 of 9 This Amendment No. 3 to Schedule 13D ("Amendment No. 3") relates to a Schedule 13D filed with the Securities and Exchange Commission ("SEC") on April 9, 2001 (the "Schedule 13D"), Amendment No. 1 to the Schedule 13D ("Amendment No. 1") filed with the SEC on May 10, 2002 and Amendment No. 2 to the Schedule 13D filed with the SEC on September 4, 2002 ("Amendment No. 2"). This Amendment No. 3 amends and supplements Amendment No. 2. Information in the Schedule 13D, Amendment No. 1 and Amendment No. 2 remains in effect except to the extent that it is superceded by the information contained in this Amendment No. 3. Information given in response to each item shall be deemed to be incorporated by reference in all other items. Capitalized terms used but not defined in this Amendment No. 3 shall have the meanings ascribed to such terms in the Schedule 13D, Amendment No. 1 and Amendment No. 2. Item 1. Security and Issuer This Amendment No. 3 relates to the common stock, $0.01 par value per share of the Issuer (the "Common Stock"). Item 3. Source and Amount of Funds or Other Consideration Pursuant to the First Amendment to the Series C Agreement, on September 30, 2002, SCP Private Equity Partners II, L.P. ("SCP L.P.") purchased the remaining 21,250 shares of the Option Preferred Stock at a purchase price of $40.00 per share, and in connection with such purchase, received a warrant from the Issuer, for no additional consideration, to purchase 10,625 shares of the Series C-2 Preferred Stock of the Issuer (the "Series C-2 Preferred") at an initial exercise price of $40.00 per share, subject to adjustment upon the occurrence of certain events (the "Second USDATA Warrant") (which is attached hereto as Exhibit 1 and the terms of which are incorporated herein by reference). On October 1, 2002, SCP L.P. entered into a Stock Purchase Agreement (the "Stock Purchase Agreement") (which is attached hereto as Exhibit 2 and the terms of which are incorporated herein by reference) with Safeguard Delaware, Inc. ("Safeguard"), Safeguard Scientifics (Delaware), Inc. ("Safeguard Scientifics") and Safeguard 2000 Capital, L.P. ("Safeguard 2000"), pursuant to which SCP L.P. acquired for an aggregate purchase price of $300,000, (1) 1,003,182 shares of the Common Stock; (2) 50,000 shares of the Series A Preferred Stock of the Issuer (the "Series A Preferred"); (3) 132,500 shares of the Series B Preferred Stock of the Issuer (the "Series B Preferred"); and (3) warrants to purchase 5,300,000 shares of Series A-1 Preferred Stock of eMake Corporation. On that date, SCP L.P. also entered into a Stock Purchase Agreement with Warren V. Musser (which is attached hereto as Exhibit 3 and the terms of which are incorporated herein by reference), pursuant to which SCP L.P. acquired 26,746 shares of the Common Stock for an aggregate purchase price of $4,612. CUSIP No. 917294 10 0 Page 6 of 9 SCP L.P. funded the purchases described above with its working capital. Item 4. Purpose of Transaction Except as set forth above and in the Schedule 13D, Amendment No. 1 and Amendment No. 2, none of the Reporting Persons, the General Partner or any of the Members, have formulated any plans or proposals of the types referred to in clauses (a) through (j) of Item 4 of Schedule 13D. However, all of SCP L.P.'s investments are made with the intention of exiting within a matter of a few years. Accordingly, a future proposal or plan for the sale of the Issuer or of SCP L.P.'s interest in the Issuer by the Reporting Persons is possible. The Reporting Persons reserve the right to change their plans at any time. Item 5. Interest in the Securities of the Issuer (a)-(b) Both Reporting Persons may be deemed to be the beneficial owners with shared power to vote and dispose of a total of 5,557,011 shares of the Issuer's Common Stock (or 73% of the outstanding Common Stock). SCP LLC is deemed to be such a beneficial owner as described herein because of an agreement with SCP L.P. granting SCP LLC the power to make voting and investment decisions regarding the securities held by SCP L.P. The calculations of beneficial ownership herein assume the conversion of the (1) Series A Preferred held by SCP L.P. (including accrued dividends up to October 1, 2002) into 268,100 shares of the Common Stock; (2) Series B Preferred by SCP L.P. (including accrued dividends up to October 1, 2002) into 986,316 shares of the Common Stock; (3) Series C-1 Preferred Stock of the Issuer by SCP L.P. (including accrued dividends up to October 1, 2002) into 1,560,167 shares of the Common Stock; (4) total number of Series C-2 Preferred purchasable under the USDATA Warrant into 1,500,000 shares of the Common Stock; and (5) total number of Series C-2 Preferred purchasable under the Second USDATA Warrant into 212,500 shares of the Common Stock. (c) Not applicable. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer In connection with the Stock Purchase Agreement, Safeguard, Safeguard Scientifics and Safeguard 2000 (collectively, the "Safeguard Entities") executed an Assignment Agreement dated October 1, 2002 (which is attached hereto as Exhibit 4 and the terms of which are incorporated herein by reference), pursuant to which the Safeguard Entities assigned to SCP L.P. certain rights related to the securities purchased under the Stock Purchase Agreement. CUSIP No. 917294 10 0 Page 7 of 9 Except as otherwise described in this Amendment No. 3, in the Schedule 13D, in Amendment No. 1 and in Amendment No. 2, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons, the General Partner or any of the Members, with respect to any securities of the Issuer, including but not limited to transfer or voting of any securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits The following documents are filed as exhibits to this Amendment No. 3: 1. USDATA Corporation Series C-2 Preferred Stock Purchase Warrant dated September 30, 2002. 2. Stock Purchase Agreement among SCP Private Equity Partners II, L.P., Safeguard Delaware, Inc., Safeguard Scientifics (Delaware), Inc. and Safeguard 2000 Capital, L.P. dated October 1, 2002. 3. Stock Purchase Agreement between SCP Private Equity Partners II, L.P. and Warren V. Musser dated October 1, 2002. 4. Assignment Agreement dated October 1, 2002. CUSIP No. 917294 10 0 Page 8 of 9 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. SCP Private Equity Partners II, L.P. By: SCP Private Equity II General Partner, L.P., its General Partner By: SCP Private Equity II, LLC, its Manager By: /s/ Winston J. Churchill -------------------------- Name: Winston J. Churchill Title: a manager SCP Private Equity II, LLC By: /s/ Winston J. Churchill -------------------------- Name: Winston J. Churchill Title: a manager CUSIP No. 917294 10 0 Page 9 of 9 EXHIBIT INDEX Exhibit 1 USDATA Corporation Series C-2 Preferred Stock Purchase Warrant dated September 30, 2002. Exhibit 2 Stock Purchase Agreement among SCP Private Equity Partners II, L.P., Safeguard Delaware, Inc., Safeguard Scientifics (Delaware), Inc. and Safeguard 2000 Capital, L.P. dated October 1, 2002. Exhibit 3 Stock Purchase Agreement between SCP Private Equity Partners II, L.P. and Warren V. Musser dated October 1, 2002. Exhibit 4 Assignment Agreement dated October 1, 2002. EX-1 3 dex1.txt PREFERRED STOCK PURCHASE WARRANT DATED 9/30/02 EXHIBIT 1 NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NO TRANSFER OF THIS WARRANT OR OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. Warrant No. C-2-2 September 30, 2002 USDATA CORPORATION SERIES C-2 PREFERRED STOCK PURCHASE WARRANT Subject to the terms and conditions set forth herein, USDATA Corporation, a Delaware corporation (the "Company"), hereby grants to SCP Private Equity Partners II, L.P. ("SCP"), a Delaware limited partnership, or its registered assigns or transferees (SCP and each such assign or transferee being referred to herein as a "Holder" and collectively as the "Holders") the right to purchase, at any time and from time to time after the date hereof and until 5:00 p.m. (Eastern Standard Time) on March 30, 2011 (the "Expiration Date"), 10,625 fully paid and non-assessable shares of the Company's Series C-2 Preferred Stock, par value $0.01 per share (the "Series C Shares"), at a purchase price per share of $40.00 (the "Exercise Price"). 1. Exercise of Warrant. 1.1 Exercise. Subject to adjustment as provided in Section 3 hereof, the rights represented by this Warrant are exercisable, in whole or in part, on any business day (the "Exercise Date") and on or before the Expiration Date, at the Exercise Price per share of the Series C Shares issuable hereunder (hereinafter, "Warrant Shares"). Unless this Warrant is exercised in accordance with Section 1.2 hereof, the Exercise Price shall be payable in cash, or by certified or official bank check. 1.2 Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C hereto duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares as is computed using the following formula, in the case of a net exercise pursuant to clause (y): X = Y(A-B) ------ A where X = the number of shares to be issued to the holder pursuant to this Section 1.2. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.2. A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value of one share of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share of the Company's Common Stock, then the fair market value of each Series C Share shall be deemed to equal the fair market value of one share of the Company's Common Stock multiplied by the number of shares of the Company's Common Stock into which each Series C Share is then convertible. B = the Exercise Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 1.2. For purposes of this Section 1.2, the "fair market value" per share of the Company's Common Stock shall mean: (a) If the Company's Common Stock is traded on a national securities exchange or admitted to unlisted trading privileges on such an exchange, or is listed on the SmallCap Market (the "SmallCap Market") of the National Association of Securities Dealers Automated Quotations System (the "NASDAQ"), the fair market value shall be the average of the last reported sale prices of the Company's Common Stock on such exchange or on the SmallCap Market over the five (5) consecutive trading days immediately preceding the effective date of exercise of the net issue election or if the last reported sale price information is not available for such days, the average of the mean of the closing bid and asked prices for such days on such exchange or on the SmallCap Market; (b) If the Company's Common Stock is not listed or admitted to unlisted trading privileges, the fair market value shall be the average of the mean of the last bid and asked prices reported over the five (5) consecutive Business Days immediately preceding the effective date of exercise of the net issue election (1) by the NASDAQ or (2) if reports are unavailable under clause (1) above, by the National Quotation Bureau Incorporated; and (c) If the Company's Common Stock is not so listed or admitted to unlisted trading privileges and bid and ask prices are not reported, the fair market value shall be 2 the price per share which the Company could obtain from a willing buyer for shares sold by the Company from authorized but unissued shares, as such price shall be determined by mutual agreement of the Company and the holder of this Warrant. If the holder of this Warrant and the Company are unable to agree on such fair market value, the holder of this Warrant and the Company shall each select an independent and nationally-recognized investment banking firm and such selected firms shall select another such firm to appraise the fair market value of the Warrant and to perform the computations involved. The determination of such investment banking firm shall be binding upon the Company, the holder of this Warrant and any other holder of Warrants or Warrant Shares in connection with any transaction occurring at the time of such determination. All expenses of such investment banking firm shall be borne equally by the Company and the Holder of this Warrant. In all cases, the determination of fair market value shall be made without consideration of the lack of a liquid public market for the Common Stock and without consideration of any "control premium" or any discount for holding less than a majority or controlling interest of the outstanding Common Stock. For purposes of this Section 1.2, the term "Net Liquidation Value" of this Warrant, or portion thereof, shall mean the amount payable to the holders of Series C Shares (with respect to the number of Series C Shares covered by this Warrant in respect of which the net issue election is made pursuant to clause (x) of Section 1.2, and assuming, for purposes of calculating the "Net Liquidation Value, that such Series C Shares are issued and outstanding) as a result of or in connection with any liquidation, dissolution or winding up of the Company pursuant to Section 3 of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock (whether actual or deemed to have occurred pursuant to Section 3.c thereof) less the Exercise Price of such Series C Shares. 1.3 Automatic Exercise Prior to Expiration. If not earlier exercised, this Warrant shall be deemed to have been exercised in full pursuant to Section 1.2 immediately prior to the expiration hereof, and upon such deemed exercise, and without any further act or deed of the holder hereof or any other person or entity, the Company shall issue to the Holder hereof the number of fully paid and non-assessable Series C Shares to which such holder would be entitled under Section 1.2. 1.4 Delivery of Certificate. Upon surrender of this Warrant with (a) a duly executed Notice of Exercise in the form of Annex A attached hereto, together with payment of the Exercise Price for the Warrant Shares purchased, or (b) a duly executed Notice of Net Issue Election in the form of Annex C hereto, at the Company's principal executive offices presently located at 2435 North Central Expressway, Richardson, Texas, 75080, or at such other address as the Company shall have advised the holder in writing (the "Designated Office"), the Holder shall be entitled to receive a certificate or certificates for the Warrant Shares so purchased. The Company agrees that the Warrant Shares shall be deemed to have been issued to the holder as of the close of business on the date on which this Warrant shall have been surrendered together with (x) the Notice of Exercise and payment for such Warrant Shares or (y) the Notice of Net Issue Election. 2. Transfer; Issuance of Stock Certificates; Restrictive Legends. 3 2.1 Transfer. Subject to compliance with the restrictions on transfer set forth in this Section 2, each transfer of this Warrant and all rights hereunder, in whole or in part, shall be registered on the books of the Company to be maintained for such purpose, upon surrender of this Warrant at the Designated Office, together with a written assignment of this Warrant in the form of Annex B attached hereto duly executed by the holder or its agent or attorney. Upon such surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, if any. A Warrant, if properly assigned in compliance with the provisions hereof, may be exercised by the new holder for the purchase of Warrant Shares without having a new Warrant issued. Prior to due presentment for registration of transfer thereof, the Company may deem and treat the registered holder of this Warrant as the absolute owner hereof (notwithstanding any notations of ownership or writing thereon made by anyone other than a duly authorized officer of the Company) for all purposes and shall not be affected by any notice to the contrary. All Warrants issued upon any assignment of Warrants shall be the valid obligations of the Company, evidencing the same rights, and entitled to the same benefits as the Warrants surrendered upon such registration of transfer or exchange. 2.2 Stock Certificates. Certificates for the Warrant Shares shall be delivered to the Holder within a reasonable time after the rights represented by this Warrant shall have been exercised pursuant to Section 1, and a new Warrant representing the Series C Shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder within such time. The issuance of certificates for Warrant Shares upon the exercise of this Warrant shall be made without charge to the Holder hereof including, without limitation, any documentary, stamp or similar tax that may be payable in respect thereof; provided, however, that the Company shall not be required to pay any income tax to which the Holder hereof may be subject in connection with the issuance of this Warrant or the Warrant Shares; and provided further, that if Warrant Shares are to be delivered in a name other than the name of the Holder hereof representing any Warrant being exercised, then no such delivery shall be made unless the person requiring the same has paid to the Company the amount of transfer taxes or charges incident thereto, if any. 2.3 Restrictive Legends. (a) Except as otherwise provided in this Section 2, each certificate for Warrant Shares initially issued upon the exercise of this Warrant, and each certificate for Warrant Shares issued to any subsequent transferee of any such certificate, shall be stamped or otherwise imprinted with a legend in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE OR ISSUED UPON CONVERSION OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION 4 STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (B) THE HOLDER SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS." (b) Except as otherwise provided in this Section 2, each Warrant shall be stamped or otherwise imprinted with a legend in substantially the following form: "NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NO TRANSFER OF THIS WARRANT OR OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (B) THE HOLDER SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS." Notwithstanding the foregoing, the legend requirements of this Section 2.3 shall terminate as to any particular Warrant or Warrant Share when the Company shall have received from the Holder thereof an opinion of counsel in form and substance reasonably acceptable to the Company that such legend is not required in order to ensure compliance with the Securities Act and applicable state securities laws. Whenever the restrictions imposed by this Section 2.3 shall terminate, the holder hereof or of Warrant Shares, as the case may be, shall be entitled to receive from the Company without cost to such holder a new Warrant or certificate for Warrant Shares of like tenor, as the case may be, without such restrictive legend. 3. Adjustment of Number of Shares; Exercise Price; Nature of Securities Issuable Upon Exercise of Warrants. 3.1 Exercise Price; Adjustment of Number of Shares. The Exercise Price set forth in Section 1 hereof and the number of shares purchasable hereunder shall be subject to adjustment from time to time as hereinafter provided. 5 3.1.1 Merger, Sale of Assets, etc. If at any time while this Warrant, or any portion thereof, is outstanding and unexpired there shall be a reorganization (other than a combination, reclassification, exchange, or subdivision of shares as provided in Sections 3.1.2 and 3.1.3), merger or consolidation of the Company with or into another corporation in which the Company is not the surviving entity, or a merger in which the Company is the surviving entity but the shares of the Company's capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash, or otherwise, or a sale or transfer of the Company's properties and assets as, or substantially as, an entirety to any other person, then, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the number of shares of stock or other securities or cash or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, consolidation, merger, sale or transfer, all subject to further adjustment as provided in this Section 3. The foregoing provisions of this Section 3.1.1 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock and securities of any other corporation that are at the time receivable upon the exercise of this Warrant. If the per share consideration payable to the holder hereof for shares in connection with any such transaction is in a form other than cash or securities, then the value of such consideration shall be determined in good faith by the Company's Board of Directors. In all events, appropriate adjustment shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the holder hereof after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant. 3.1.2 Reclassification, etc. If the Company, at any time while this Warrant, or any portion thereof, remains outstanding and unexpired, shall, by the reclassification or exchange of securities or otherwise, change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification, exchange, or other change and the Exercise Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 3. 3.1.3 Stock Splits, Stock Dividends and Reverse Stock Splits. In case at any time the Company shall split or subdivide the outstanding shares of Series C Shares into a greater number of shares, or shall declare and pay any stock dividend with respect to its outstanding stock that has the effect of increasing the number of outstanding shares of Series C Shares, the Exercise Price in effect immediately prior to such subdivision or stock dividend shall be proportionately reduced and the number of Warrant Shares purchasable pursuant to this Warrant immediately prior to such subdivision or stock dividend shall be proportionately increased, and conversely, in case at any time the Company shall combine its outstanding shares 6 of Series C Shares into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant Shares purchasable upon the exercise of this Warrant immediately prior to such combination shall be proportionately reduced. 3.1.4 Adjustments for Dividends in Stock or Other Securities of Property. If while this Warrant, or any portion hereof, remains outstanding and unexpired the holders of Series C Shares shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefor, other or additional stock or other securities or property (other than cash) of the Company by way of dividend, then and in each case, this Warrant shall represent the right to acquire, in addition to the number of shares of the security receivable upon exercise of this Warrant, and without payment of any additional consideration therefor, the amount of such other or additional stock or other securities or property of the Company that such holder would hold on the date of such exercise had it been the holder of record of the security receivable upon exercise of this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock available by it as aforesaid during such period, giving effect to all adjustments called for during such period by the provisions of this Section 3. 3.2 Timing of Exercise Price Adjustment. No adjustment of the Exercise Price shall be made unless such adjustment would require an increase or decrease of at least $0.0001 in such price; provided that any adjustments which by reason of this Section 3.2 are not required to be made shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment(s) so carried forward, shall require an increase or decrease of at least $0.0001 in the Exercise Price then in effect hereunder. 3.3 Adjustment Certificate. In each case of an adjustment in the Exercise Price, number of Warrant Shares or other stock, securities or property receivable upon the exercise of this Warrant, the Company shall compute and prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, including a statement of (i) the number of Series C Shares outstanding or deemed to be outstanding, (ii) the adjusted Exercise Price and (iii) the number of Warrant Shares issuable upon exercise of this Warrant. The Company will forthwith mail a copy of each such certificate to the holder hereof. 4. Registration; Exchange and Replacement of Warrant; Reservation of Shares. The Company shall keep at the Designated Office a register in which the Company shall provide for the registration, transfer and exchange of this Warrant. The Company shall not at any time, except upon the dissolution, liquidation or winding-up of the Company, close such register so as to result in preventing or delaying the exercise or transfer of this Warrant. The Company may deem and treat the person in whose name this Warrant is registered as the holder and owner hereof for all purposes and shall not be affected by any notice to the contrary, until presentation of this Warrant for registration or transfer as provided in this Section 4. 7 Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant and (in case of loss, theft or destruction) of indemnity satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will (in the absence of notice to the Company that the Warrant has been acquired by a bona fide purchaser) make and deliver a new Warrant of like tenor, in lieu of this Warrant without requiring the posting of any bond or the giving of any security. The Company shall at all times reserve and keep available out of its authorized shares of Series C Shares, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Series C Shares as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Exercise Price therefor, if applicable, all Warrant Shares issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable. 5. Fractional Warrants and Fractional Shares. If the number of Warrant Shares purchasable upon the exercise of this Warrant is adjusted pursuant to Section 3 hereof, the Company shall nevertheless not be required to issue fractions of shares, upon exercise of this Warrant or otherwise, or to distribute certificates that evidence fractional shares. With respect to any fraction of a share called for upon any exercise hereof, the Company shall pay to the holder an amount in cash equal to such fraction multiplied by the current market value of such fractional share as may be prescribed by the Board of Directors of the Company. 6. Warrant Holders Not Deemed Stockholders. No holder of this Warrant shall, as such, be entitled to vote or to receive dividends or be deemed the holder of Warrant Shares that may at any time be issuable upon exercise of this Warrant for any purpose whatsoever, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issue or reclassification of stock, change of par value or change of stock to no par value, consolidation, merger or conveyance or otherwise), or to receive notice of meetings, or to receive dividends or subscription rights, until such holder shall have exercised this Warrant and been issued Warrant Shares in accordance with the provisions hereof. 7. Notices. All notices, requests, consents and other communications hereunder shall be in writing and shall be deemed to have been duly made when delivered personally, or mailed by registered or certified mail, return receipt requested, or telecopied or telexed and confirmed in writing and delivered personally or mailed by registered or certified mail, return receipt requested (a) if to the holder of this Warrant, to the address of such holder as shown on the books of the Company, or (b) if to the Company, to the address set forth in Section 1.4 of this Warrant; or at such other address as the holder or the Company may hereafter have advised the other. 8. Successors. All the covenants, agreements, representations and warranties contained in this Warrant shall bind the parties hereto and their respective heirs, executors, administrators, distributees, successors, assigns and transferees. 8 9. Law Governing. This Warrant shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware (not including the choice of law rules thereof) regardless of the jurisdiction of creation or domicile of the Company or its successors or of the holder at any time hereof. 10. Entire Agreement; Amendments and Waivers. This Warrant sets forth the entire understanding of the parties with respect to the transactions contemplated hereby. The failure of any party to seek redress for the violation or to insist upon the strict performance of any term of this Warrant shall not constitute a waiver of such term and such party shall be entitled to enforce such term without regard to such forbearance. This Warrant may be amended, and any breach of or compliance with any covenant, agreement, warranty or representation may be waived, only if the Company has obtained the written consent or written waiver of the holder, and then such consent or waiver shall be effective only in the specific instance and for the specific purpose for which given. 11. Severability; Headings. If any term of this Warrant as applied to any person or to any circumstance is prohibited, void, invalid or unenforceable in any jurisdiction, such term shall, as to such jurisdiction, be ineffective to the extent of such prohibition or invalidity without in any way affecting any other term of this Warrant or affecting the validity or enforceability of this Warrant or of such provision in any other jurisdiction. The Section headings in this Warrant have been inserted for purposes of convenience only and shall have no substantive effect. [Signature page follows.] 9 IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed as of the date first written above. USDATA CORPORATION By: /s/ Jennifer P. Dooley ------------------------------------ Jennifer P. Dooley VP Finance and CFO Accepted and agreed: SCP PRIVATE EQUITY PARTNERS II, L.P. By: SCP Private Equity II General Partner, L.P., its General Partner By: SCP Private Equity II LLC, its Manager By:______________________________________________ Name:____________________________________________ Title:___________________________________________ [Signature Page - Series C Preferred Stock Purchase Warrant] ANNEX A NOTICE OF EXERCISE (To be executed upon partial or full exercise of the within Warrant) The undersigned hereby irrevocably elects to exercise the right to purchase ________ shares of Series C-2 Preferred Stock of USDATA Corporation covered by the within Warrant according to the conditions hereof, herewith makes payment of the Exercise Price of such shares in full in the amount of $______________, and requests that a certificate for such number of shares be issued in the name of, and delivered to _______________, whose address is set forth below. Dated:_______________ _____________________________________________ (Signature must conform to name of holder as specified on the face of the Warrant) _____________________________________________ _____________________________________________ (Address) ANNEX B ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of Series C-2 Preferred Stock set forth below: - -------------------------------------------------------------------------------- No. of Shares of Series C-2 Name and Address of Assignee Preferred Stock - ---------------------------- --------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- and does hereby irrevocably constitute and appoint _______________________ attorney-in-fact to register such transfer onto the books of USDATA Corporation maintained for the purpose, with full power of substitution in the premises. Dated: _______________________ Print Name: _____________________________ Signature: ______________________________ Witness: ________________________________ NOTICE: The signature on this assignment must correspond with the name as written upon the face of this Warrant in every particular, without alteration or enlargement or any change whatsoever. ANNEX C NOTICE OF NET ISSUE ELECTION (To be signed only on net issue exercise of the Warrant) The undersigned, the holder of the within Warrant, hereby irrevocably elects to exercise this Warrant with respect to___________ shares of Series C-2 Preferred Stock of USDATA Corporation, pursuant to the net issuance provisions set forth in Section 1.2 of this Warrant, and requests that a certificate for the number of shares of Series C-2 Preferred Stock issuable pursuant to said Section 1.2 after application of the net issuance formula to such shares to be issued in the name of, and delivered to _______________________, whose address is set forth below. Dated: _____________ ________________________________________________ (Signature must conform to name of holder as specified on the face of the Warrant) ________________________________________________ ________________________________________________ (Address) EX-2 4 dex2.txt STOCK PURCHASE AGREEMENT EXHIBIT 2 ------------------ Execution Copy ------------------ STOCK PURCHASE AGREEMENT This Stock Purchase Agreement (the "Agreement"), dated as of October 1, 2002, is by and among the entities listed on Exhibit A hereto (each, a "Seller" and collectively, the "Sellers") and SCP Private Equity Partners II, L.P. ("Purchaser"). W I T N E S S E T H: WHEREAS, the Sellers own the shares of USDATA Corporation ("USDATA") described on Exhibit "A" (the "Shares") and the warrants of eMake Corporation (together with USDATA, the "Company") described on Exhibit A (the "Warrants": collectively with the Shares referred to as the "Securities"); WHEREAS, the Sellers desire to sell to Purchaser all of the Securities, which constitute all of the shares of capital stock of the Company owned by the Sellers, and Purchaser wishes to purchase the Securities from the Seller on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows: ARTICLE 1 THE SECURITIES Section 1.1 Sale and Purchase of the Securities. In reliance upon the representations and warranties made herein, Sellers agree to sell the Securities and transfer any and all rights associated with such Securities to Purchaser, and Purchaser agrees to purchase the Securities from Sellers as set forth opposite such Seller's name on Exhibit A. Section 1.2 Purchase Price. The purchase price for the Securities shall be $300,000 cash ("Cash Purchase Price"). Section 1.3 Closing. The closing of the purchase and sale of the Securities (the "Closing") shall be held concurrently with the execution and delivery of this Agreement, no later than August 31, 2002, at 800 The Safeguard Building, 435 Devon Park Drive, Wayne, PA, or at any other time and place or in such other manner to which the Sellers and the Purchaser may agree. At the Closing, the Sellers will cause to be delivered to the Purchaser (i) certificates representing the Shares together with stock powers with respect to each certificate duly executed in blank, and (ii) such instruments of transfer necessary to effectuate a legal, valid and proper transfer of the Warrants to the Purchaser (the "Warrant Transfers"), against payment of the Cash Purchase Price to the Sellers by wire transfer of immediately available funds to such account as the Sellers may specify in writing. ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SELLER Sellers jointly and severally represent and warrant to and agree with the Purchaser as follows: Section 2.1 Title to Securities. Each Seller holds record and beneficial ownership of the Securities set forth on Exhibit A opposite its name, free and clear of any and all liens, security interests, pledges, mortgages, charges, limitation, claims, restrictions, restrictive legends, rights of first refusal, rights of first offer, rights of first negotiation or other encumbrances of any kind or nature whatsoever ("Liens"), and the delivery of such Securities to the Purchaser at the Closing pursuant to this Agreement will transfer to the Purchaser valid beneficial ownership thereto free and clear of all Liens. The Securities constitute all the shares of capital stock of the Company and rights to acquire capital stock of the Company owned by the Sellers. Section 2.2 Power and Authority of Sellers. Each Seller has all requisite power and authority to execute, deliver and perform this Agreement and to execute and deliver the stock certificates or instruments to be executed and delivered pursuant hereto by such Seller and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by each Seller and constitutes the valid and binding obligation of each Seller, enforceable against each Seller in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) is subject to general principles of equity. Section 2.3 Absence of Conflicting Agreements. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, do not, with or without the giving of notice, the lapse of time or both: (i) contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to any Seller, (ii) require any consent, approval or other action by any third party, (iii) contravene or conflict with, or constitute a violation of, any agreement to which any Seller is a party or by which any Seller is bound, or (iv) result in the creation or imposition of any Lien on the Securities. Section 2.4 Broker's Fees. Purchaser does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby or based in any way upon agreements, arrangements or understandings made by or on behalf of any Seller hereunder ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to, and agrees with, the Sellers as follows: -2- Section 3.1 Accredited Investor and Investment Purpose. Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of the Act. The Securities will be acquired for investment for Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. Section 3.2 Power and Authority. Purchaser has all requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by Purchaser and constitutes the valid and binding obligation of Purchaser, enforceable in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) is subject to general principles of equity. Section 3.4 Broker's Fees. Purchaser does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby or based in any way upon agreements, arrangements or understandings made by or on behalf of Purchaser hereunder. Section 3.5 Absence of Conflicting Agreements. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, do not, with or without the giving of notice, the lapse of time or both: (i) contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to Purchaser, (ii) require any consent, approval or other action by any third party, or (iii) contravene or conflict with, or constitute a violation of, any agreement to which Purchaser is a party or by which Purchaser is bound. ARTICLE 4. COVENANTS OF THE PARTIES Section 4.1 Further Assurances. At any time or from time to time after the Closing, each of the Sellers and Purchaser shall, at the reasonable request and expense of the other party or its counsel (unless such request is occasioned by the breach of a representation, warranty or covenant of the other party, in which case it shall be at the expense of such breaching party), execute and deliver any further instruments or documents and take all such further action in order to evidence or otherwise facilitate the consummation of the transactions contemplated hereby. Section 4.2 No Other Representations or Warranties. Except as set forth in this Agreement, no party is making, or is relying on, any express or implied representations or warranties relating to any party or to the consummation of the transactions contemplated hereby. Each party is making its decision to consummate the purchase and sale of the Securities described herein on the basis of its due diligence investigation of the Company and not on any representation, warranty, statement or information made or communicated (orally or in writing) to by the other party or any affiliate, representative or agent thereof, other than as set forth in this -3- Agreement. The representations and warranties made by Sellers and Purchaser in Article 2 and 3, respectively, shall survive the Closing and the delivery of the Securities. Section 4.3 Confidentiality. Each of the parties agrees to keep this Agreement and its terms in strict confidence and will not publish, disclose, communicate, or otherwise in any way make known to others (whether persons or entities) the nature, terms, or specifics of this Agreement or the claims or negotiations resulting in this Agreement; provided, however, that non-disclosure obligations set forth herein shall not apply to the extent that a party is required by law to disclose any such information, including any required SEC filings. Section 4.4 Additional Purchase Price. Upon receipt by Purchaser of consideration greater than the Cash Purchase Price as a result of the sale, transfer or other disposition of the Securities, or any portion thereof, or sale of all or substantially all of the assets or stock of USDATA ("Transfer"), on or before December 31, 2003, Sellers shall receive an aggregate of 25% ("Sellers' Share") of the excess that Purchaser receives over the Cash Purchase Price (or applicable portion thereof) in the same form and on the same terms and conditions, received by Purchaser in such Transfer, provided that the aggregate Sellers' Share shall be paid to Safeguard Delaware, Inc., as agent for the Sellers and shall be distributed by Safeguard Delaware, Inc. to the Sellers in accordance with any agreements among them with respect thereto. Purchaser shall notify Sellers in writing of any such Transfer, provide Sellers with copies of the Transfer documents and shall certify in writing the consideration received in such Transfer. If the consideration received in a Transfer is other than cash, the value of such non-cash consideration shall be as determined in the Transfer documents. ARTICLE 5 MISCELLANEOUS Section 5.1 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby, whether or not such transactions shall be consummated. Section 5.2 Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered personally, (ii) mailed, certified or registered mail, with postage prepaid or (iii) sent by next-day or overnight mail or delivery or sent by telecopy, as follows: (a) if to Sellers, to: c/o Safeguard Scientifics, Inc. 800 The Safeguard Building 435 Devon Park Drive Wayne, PA 19087 Attn: Chief Financial Officer Fax: 610/293-0601 (b) if to the Purchaser, to: SCP Private Equity Partners II, L.P. 300 Building -4- 435 Devon Park Drive Wayne, PA 19087 Attn: Charles C. Freyer Fax: 610-975-9546 or, in each case, at such other address as may be specified in writing to the other parties hereto. All such notices, requests, demands, waivers and other communications shall be deemed to have been received (i) if by personal delivery on the day after such delivery, (ii) if by certified or registered mail, on the fifth business day after the mailing thereof, (iii) if by next-day or overnight mail or delivery, on the day delivered and (iv) if by telecopy, on the next day following the day on which such telecopy was sent, provided that a copy is also sent by certified or registered mail. Section 5.3 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania applicable to agreements made and to be performed wholly within such jurisdiction. Section 5.4 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party hereto may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of each of the other parties hereto. Section 5.5 No Third Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns. Section 5.6 Amendment; Waivers, etc. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Section 5.7 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Section 5.8 Counterparts; Facsimile. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. The reproduction of signatures by means of telecopying device shall be treated as though such reproductions are executed originals. -5- IN WITNESS WHEREOF, Purchaser and the Sellers have caused this Agreement to be executed and delivered by the undersigned duly authorized officers as of the day and year first above written. SELLERS: PURCHASER: Safeguard Delaware, Inc. SCP Private Equity Partners II, L.P. By: SCP Private Equity II General Partner, L.P. By: SCP Private Equity II, LLC By: /s/ N. Jeffrey Klauder By: /s/ Winston J. Churchill ------------------------------- ------------------------ Name: N. Jeffrey Klauder Name: Winston J. Churchill Title: Vice President Title: Manager Safeguard Scientifics (Delaware), Inc. By: /s/ N. Jeffrey Klauder ------------------------------- Name: N. Jeffrey Klauder Title: Vice President Safeguard 2000 Capital, L.P. By: Safeguard Delaware, Inc. By: /s/ N. Jeffrey Klauder ------------------------------- Name: N. Jeffrey Klauder Title: Vice President -6- EXHIBIT A
- -------------------------------------------------------------------------------------------- SELLERS USDATA eMake - -------------------------------------------------------------------------------------------- Safeguard Delaware, Inc. 322,405 shares of common stock 50,000 shares of Series A Preferred Stock* - -------------------------------------------------------------------------------------------- Safeguard Scientifics 680,777 shares of common stock (Delaware), Inc. - -------------------------------------------------------------------------------------------- Safeguard 2000 Capital, L.P. 132,500 shares of Series B Warrants to purchase 5,300,000 Preferred Stock* shares of Series A-2 Preferred Stock - --------------------------------------------------------------------------------------------
* For convenience, these numbers do not include accrued dividends; however, such dividends are intended to be among the Securities transferred to the Purchaser pursuant hereto -7- EX-3 5 dex3.txt STOCK PURCHASE AGREEMENT WITH WARREN V. MUSSER EXHIBIT 3 Execution Copy STOCK PURCHASE AGREEMENT This Stock Purchase Agreement (the "Agreement"), dated as of October 1, 2002, is by and among Warren V. Musser ("Seller") and SCP Private Equity Partners II, L.P. ("Purchaser"). W I T N E S S E T H: WHEREAS, the Seller owns 26,746 shares ("Shares") of common stock of USDATA Corporation ("Company"). WHEREAS, the Seller desires to sell to Purchaser all of the Shares, which constitute all of the shares of capital stock of the Company owned by the Seller, and Purchaser wishes to purchase the Shares from the Seller on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows: ARTICLE 1 THE SHARES Section 1.1 Sale and Purchase of the Shares. In reliance upon the representations and warranties made herein, Seller agrees to sell the Shares and transfer any and all rights associated with such Shares to Purchaser, and Purchaser agrees to purchase the Shares from Seller. Section 1.2 Purchase Price. The purchase price for the Shares shall be $4,612 cash ("Cash Purchase Price"), which shall be paid by wire transfer to Safeguard Delaware, Inc., as agent for the Seller. Section 1.3 Closing. The closing of the purchase and sale of the Shares (the "Closing") shall be held concurrently with the execution and delivery of this Agreement, no later than August 31, 2002, at 800 The Safeguard Building, 435 Devon Park Drive, Wayne, PA, or at any other time and place or in such other manner to which the Sellers and the Purchaser may agree. At the Closing, the Seller will cause to be delivered to the Purchaser (i) certificates together with stock powers with respect to each certificate duly executed in blank, against payment of the Cash Purchase Price to the Seller by wire transfer of immediately available funds to such account as the Seller may specify in writing. ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SELLER Seller represents and warrants to and agrees with the Purchaser as follows: Section 2.1 Title to Shares. Seller holds record and beneficial ownership of the Shares free and clear of any and all liens, security interests, pledges, mortgages, charges, limitation, claims, restrictions, restrictive legends, rights of first refusal, rights of first offer, rights of first negotiation or other encumbrances of any kind or nature whatsoever ("Liens"), and the delivery of such Shares to the Purchaser at the Closing pursuant to this Agreement will transfer to the Purchaser valid beneficial ownership thereto free and clear of all Liens. The Shares constitute all the shares of capital stock of the Company owned by Seller. Section 2.2 Power and Authority of Seller. Seller has all requisite power and authority to execute, deliver and perform this Agreement and to execute and deliver the stock certificates or instruments to be executed and delivered pursuant hereto by such Seller and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by Seller and constitutes the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) is subject to general principles of equity. Section 2.3 Absence of Conflicting Agreements. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, do not, with or without the giving of notice, the lapse of time or both: (i) contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to Seller, (ii) require any consent, approval or other action by any third party, (iii) contravene or conflict with, or constitute a violation of, any agreement to which Seller is a party or by which Seller is bound, or (iv) result in the creation or imposition of any Lien on the Shares. Section 2.4 Broker's Fees. Seller does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby or based in any way upon agreements, arrangements or understandings made by or on behalf of Seller hereunder ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to, and agrees with, the Sellers as follows: Section 3.1 Accredited Investor and Investment Purpose. Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of the Act. The Shares will be acquired for investment for Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. -2- Section 3.2 Power and Authority. Purchaser has all requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by Purchaser and constitutes the valid and binding obligation of Purchaser, enforceable in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) is subject to general principles of equity. Section 3.3 Broker's Fees. Purchaser does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby or based in any way upon agreements, arrangements or understandings made by or on behalf of Purchaser hereunder. Section 3.4 Absence of Conflicting Agreements. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, do not, with or without the giving of notice, the lapse of time or both: (i) contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to Purchaser, (ii) require any consent, approval or other action by any third party, or (iii) contravene or conflict with, or constitute a violation of, any agreement to which Purchaser is a party or by which Purchaser is bound. ARTICLE 4. COVENANTS OF THE PARTIES Section 4.1 Further Assurances. At any time or from time to time after the Closing, each of the Sellers and Purchaser shall, at the reasonable request and expense of the other party or its counsel (unless such request is occasioned by the breach of a representation, warranty or covenant of the other party, in which case it shall be at the expense of such breaching party), execute and deliver any further instruments or documents and take all such further action in order to evidence or otherwise facilitate the consummation of the transactions contemplated hereby. Section 4.2 No Other Representations or Warranties. Except as set forth in this Agreement, no party is making, or is relying on, any express or implied representations or warranties relating to any party or to the consummation of the transactions contemplated hereby. Each party is making its decision to consummate the purchase and sale of the Shares described herein on the basis of its due diligence investigation of the Company and not on any representation, warranty, statement or information made or communicated (orally or in writing) to by the other party or any affiliate, representative or agent thereof, other than as set forth in this Agreement. The representations and warranties made by Seller and Purchaser in Article 2 and 3, respectively, shall survive the Closing and the delivery of the Shares. Section 4.3 Confidentiality. Each of the parties agrees to keep this Agreement and its terms in strict confidence and will not publish, disclose, communicate, or otherwise in any way make known to others (whether persons or entities) the nature, terms, or specifics of this -3- Agreement or the claims or negotiations resulting in this Agreement; provided, however, that non-disclosure obligations set forth herein shall not apply to the extent that a party is required by law to disclose any such information, including any required SEC filings. Section 4.4 Additional Purchase Price. Upon receipt by Purchaser of consideration greater than the Cash Purchase Price as a result of the sale, transfer or other disposition of the Shares, or any portion thereof, or sale of all or substantially all of the assets or stock of USDATA ("Transfer"), on or before December 31, 2003, Seller shall receive an aggregate of 25% ("Seller's Share") of the excess that Purchaser receives over the Cash Purchase Price (or applicable portion thereof) in the same form and on the same terms and conditions, received by Purchaser in such Transfer, provided that the aggregate Seller's Share shall be paid to Safeguard Delaware, Inc., as agent for the Seller. Purchaser shall notify Safeguard Delaware, Inc. in writing of any such Transfer, provide Safeguard Delaware, Inc. with copies of the Transfer documents and shall certify in writing the consideration received in such Transfer. If the consideration received in a Transfer is other than cash, the value of such non-cash consideration shall be as determined in the Transfer documents. ARTICLE 5 MISCELLANEOUS Section 5.1 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby, whether or not such transactions shall be consummated. Section 5.2 Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered personally, (ii) mailed, certified or registered mail, with postage prepaid or (iii) sent by next-day or overnight mail or delivery or sent by telecopy, as follows: (a) if to Seller, to: c/o Safeguard Scientifics, Inc. 800 The Safeguard Building 435 Devon Park Drive Wayne, PA 19087 Attn: Chief Financial Officer Fax: 610/293-0601 (b) if to the Purchaser, to: SCP Private Equity Partners II, L.P. 300 Building 435 Devon Park Drive Wayne, PA 19087 Attn: Charles C. Freyer Fax: 610-975-9546 -4- or, in each case, at such other address as may be specified in writing to the other parties hereto. All such notices, requests, demands, waivers and other communications shall be deemed to have been received (i) if by personal delivery on the day after such delivery, (ii) if by certified or registered mail, on the fifth business day after the mailing thereof, (iii) if by next-day or overnight mail or delivery, on the day delivered and (iv) if by telecopy, on the next day following the day on which such telecopy was sent, provided that a copy is also sent by certified or registered mail. Section 5.3 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania applicable to agreements made and to be performed wholly within such jurisdiction. Section 5.4 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party hereto may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of each of the other parties hereto. Section 5.5 Third Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns, except for the rights of Safeguard Delaware, Inc. to receive payment of the Cash Purchase Price and the Additional Purchase Price. Section 5.6 Amendment; Waivers, etc. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Section 5.7 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Section 5.8 Counterparts; Facsimile. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. The reproduction of signatures by means of telecopying device shall be treated as though such reproductions are executed originals. -5- IN WITNESS WHEREOF, Purchaser and the Sellers have caused this Agreement to be executed and delivered by the undersigned duly authorized officers as of the day and year first above written. SELLER: PURCHASER: SCP Private Equity Partners II, L.P. /s/ Warren V. Musser By: SCP Private Equity II General Partner, L.P. - ---------------------------- By: SCP Private Equity II, LLC Warren V. Musser By: /s/ Winston J. Churchill ------------------------ Name: Winston J. Churchill Title: Manager -6- EX-4 6 dex4.txt ASSIGNMENT AGREEMENT DATED OCTOBER 1, 2002 EXHIBIT 4 ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT (the "Agreement") is made and entered into this 1st day of October, 2002, by and among SCP Private Equity Partners II, L.P. ("Assignee"), Safeguard Delaware, Inc., Safeguard Scientifics (Delaware), Inc. and Safeguard 2000 Capital, L.P. (collectively the "Assignors"). WITNESSETH: WHEREAS, Assignee and Assignors are parties to the Stock Purchase Agreement dated October 1, 2002 ("Purchase Agreement"), pursuant to which Assignee has agreed to purchase the Securities (as defined in the Purchase Agreement) and Assignors have agreed to assign to Assignee all of their respective rights associated with the Securities; WHEREAS, Assignors are parties to the Second Amended and Restated Investors' Rights Agreement dated March 30, 2001, by and among USDATA Corporation ("USDATA") and the other parties therein (the "Investors' Rights Agreement"), which provides Assignors with certain rights with respect to the Securities; WHEREAS, Safeguard 2000, L.P. is a party to the Exchange Agreement (the "Exchange Agreement" and together with the Investors' Rights Agreement, the "Assigned Agreements") dated September 12, 2000, between Safeguard 2000 Capital, L.P. ("Safeguard 2000") and USDATA, which provides Safeguard 2000 with certain rights with respect to the Warrants (as defined in the Purchase Agreement); and WHEREAS, Assignors desire to assign all of their respective rights, title and interest in, to and under the Assigned Agreements to Assignee in accordance with their obligations under the Purchase Agreement and Assignee desires to accept such assignment. NOW, THEREFORE, in consideration of the premises set forth above and the mutual covenants contained herein, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Assignment of the Investors' Rights Agreement. Assignors hereby assign and transfer to Assignee all of Assignors' rights, title and interest in, to and under the Investors' Rights Agreement, and Assignee hereby accepts such assignment and transfer and assumes the performances of all terms, covenants, obligations and conditions of Assignors accruing or arising under the Investors' Rights Agreement on and after the date hereof. 2. Assignment of Exchange Agreement. Safeguard 2000 hereby assigns and transfers to Assignee all of Safeguard 2000's rights, title and interest in, to and under the Exchange Agreement; provided that such assignment shall be subject to that certain Warrant Agreement dated as March 30, 2001, by and among USDATA, Assignee and Safeguard 2000. Assignee hereby accepts such assignment and transfer and assumes the performances of all terms, covenants, obligations and conditions of Assignors accruing or arising under the Exchange Agreement on and after the date hereof. 3. Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the Commonwealth of Pennsylvania applicable to agreements executed and to be performed solely within the Commonwealth, without reference to the choice of law provisions thereof. 4. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous understandings or agreements, whether written or oral, between the parties with respect to such subject matter are superseded hereby in their entireties. No amendment or modification hereof shall be binding upon the parties unless in writing and duly executed by authorized representatives of both parties. 5. Successors and Assigns. The terms and provisions hereof shall inure to the benefit of, and be binding upon, Assignors, Assignee, and their respective successors and permitted assigns. 6. Counterparts. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same instrument. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts. 7. Further Assurances. Each party shall duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including, without limitation, the filing of such assignments, agreements, documents and instruments, as may be necessary or as the other party may reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes hereof, or to better assure and confirm unto such other party its rights and remedies under this Agreement. -2- IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their representatives thereunto duly authorized as of the date first set forth above. ASSIGNORS: SAFEGUARD DELAWARE, INC. By: /s/ N. Jeffrey Klauder ---------------------- Name: N. Jeffrey Klauder Title: Vice President SAFEGUARD SCIENTIFICS (DELAWARE), INC. By: /s/ N. Jeffrey Klauder ---------------------- Name: N. Jeffrey Klauder Title: Vice President SAFEGUARD 2000 CAPITAL, L.P. By: /s/ N. Jeffrey Klauder ---------------------- Name: N. Jeffrey Klauder Title: Vice President ASSIGNEE: SCP PRIVATE EQUITY PARTNERS II, L.P. By: /s/ Winston J. Churchill ------------------------ Name: Winston J. Churchill Title: Manager The undersigned hereby acknowledges, accepts and agrees the terms and conditions of this Assignment Agreement. USDATA Corporation By: /s/ Jennifer P. Dooley -------------------------------- Name: Jennifer P. Dooley --------------------------- Title: VP Finance & CFO -------------------------- -3- -----END PRIVACY-ENHANCED MESSAGE-----