EXHIBIT 3
Execution Copy
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of October 1,
2002, is by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("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, ▇▇▇▇▇, 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.
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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
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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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Fax: 610/▇▇▇-▇▇▇▇
(b) if to the Purchaser, to: SCP Private Equity Partners II, L.P.
300 Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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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.
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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.
SELLER: PURCHASER:
SCP Private Equity Partners II, L.P.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: SCP Private Equity II General Partner, L.P.
---------------------------- By: SCP Private Equity II, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager
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