EXHIBIT 2
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Execution Copy
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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:
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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
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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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial
Officer
Fax: 610/▇▇▇-▇▇▇▇
(b) if to the Purchaser, to: SCP Private Equity Partners
II, L.P. 300 Building
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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.
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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. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Manager
Safeguard Scientifics (Delaware), Inc.
By: /s/ N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Safeguard 2000 Capital, L.P.
By: Safeguard Delaware, Inc.
By: /s/ N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
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SELLERS USDATA eMake
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Safeguard Delaware, Inc. 322,405 shares of common stock
50,000 shares of Series A
Preferred Stock*
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Safeguard Scientifics 680,777 shares of common stock
(Delaware), Inc.
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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
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* 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
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