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-