Common use of THE PURCHASER'S STANDSTILL OBLIGATIONS Clause in Contracts

THE PURCHASER'S STANDSTILL OBLIGATIONS. 4.1.1. From the date hereof until the earlier of (i) the Closing or (ii) the termination of this Agreement under Section 9.2 hereof, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or Non Voting Convertible Securities, or any securities of USDATA, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares. 4.1.2. During the Standstill Period, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares, if the effect of such acquisition of Beneficial Ownership would be to increase above the Standstill Limit the Voting Shares represented by all Voting Shares Beneficially Owned by Purchaser together with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party. 4.1.3. Purchaser shall not be deemed to have violated its covenants under this Section 4.1 solely by virtue of (and only to the extent of) any increase in the total number of Voting Shares Beneficially Owned by Purchaser together with any Affiliate or any 13D Group to which the Purchaser or any Affiliate is a party (i) if such increase is the result of a stock split, stock dividend, recapitalization or similar event, (ii) if such increase is the result of grant by the Company of stock options or restricted stock, pursuant to a stock option plan or restricted stock plan of the Company, to a director in the Company nominated in accordance with Section 6 below, (iii) if such increase is the result of the release of Additional Shares to the Purchaser pursuant to the Escrow Agreement, (iv) if such increase is the result of the distribution of Additional Shares by USDATA to the Purchaser, or (v) if such increase is the result of the issuance of Voting Shares directly by the Company to Purchaser or any of its Affiliates in consideration of a financing transaction of the Company or in connection with an acquisition by the Company, in each case provided that Purchaser shall promptly notify the Company in writing upon becoming aware that a person which is an Affiliate of Purchaser is, or is contemplating to be, a party to such transaction. 4.1.4. During the Standstill Period, no member of the Purchaser Control Group shall solicit or participate in any solicitation of proxies with respect to any Voting Shares, nor shall any member of the Purchaser Control Group seek to advise or influence any person with respect to the voting of any Voting Shares (other than as expressly provided in Section 5.1 of this Agreement). 4.1.5. During the Standstill Period, no member of the Purchaser Control Group shall subject any Voting Shares to any arrangement or agreement with any Person with respect to the voting of such Voting Shares, except as set forth in Section 5. 4.1.6. During the Standstill Period, no member of the Purchaser Control Group shall seek control of the management, Board of Directors or policies of the Company, except in accordance with any other provision of this Agreement. 4.1.7. Each member of the Purchaser Control Group shall (i) exercise any voting or similar right it may have in its capacity as a stockholder of a Portfolio Company against the taking of any action by such Portfolio Company which the Purchaser is prohibited to take by virtue of this Section 4.1 (“PROHIBITED ACTION”), (ii) not act in concert with any Portfolio Company to take any Prohibited Action, (iii) not induce any Portfolio Company to take any Prohibited Action, and (iv) subject to applicable law, use reasonable best efforts with the intention of not allowing the Portfolio Company to take a Prohibited Action, provided however that Purchaser shall not be obligated to take any action that results in the imposition of additional financial liabilities on the Purchaser, or which require the initiation of litigation proceedings. 4.1.8. Any violation of the covenants under this Section by a Purchaser Controlled Person, a Purchaser Controlling Person or a Purchaser Common Control Person shall be deemed to be a violation of this Agreement by Purchaser. 4.1.9. Notwithstanding Section 5 hereof, in the event of a violation of this Section 4.1, then, in addition to such other remedies as may be available at law, in equity or hereunder, the Purchaser hereby irrevocably appoints the Chairman of the Company’s Board of Directors, or any other designee of the Company, as the sole and exclusive attorneys and proxies of the Purchaser, with full power of substitution and resubstitution, to vote and exercise all voting rights with respect to such number of Voting Shares held by the Purchaser which are in excess of the number permitted to be Beneficially Owned at such time according to the provisions of this Section 4 4.1 by the Purchaser with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party (the “EXCESS SHARES”, it being clarified that in the event of violation of Section 4.1.7, the Voting Shares acquired by the Portfolio Company shall be deemed to be Beneficially owned by Purchaser for the purpose of calculating the number of Excess Shares), in the proxy’s sole and absolute discretion, on every annual, general, special, class or adjourned meeting of the shareholders of the Purchaser and in every written consent in lieu of such meeting. To the extent the Voting Shares held by the Purchaser are less than the Excess Shares, the Purchaser shall take such action as may be reasonably required so that the Voting Shares Beneficially Owned by any member of the Purchaser Control Group (other than the Purchaser) shall be subject to such proxy, and shall use all reasonable efforts to cause any Voting Shares held by any Affiliate of Purchaser that is not a member of the Purchaser Control Group or any 13D Group of which Purchaser or any Affiliate of Purchaser is a party to be subject to such proxy, up to the maximum number of Excess Shares which are not covered by a proxy from the Purchaser. This irrevocable proxy shall only be effective during the period from the date of violation of this Section 4 until such time as the transfer of Excess Shares with respect to which the Option was exercised is effected. The parties hereby acknowledge that monetary damages may not be a sufficient or adequate remedy for violation of this Section 4.1 and that, in addition to any other remedy which may be available in law or equity, and without any waiver or limitation with respect thereto, the Company shall be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

THE PURCHASER'S STANDSTILL OBLIGATIONS. 4.1.1. From the date hereof until the earlier of (i) the Closing or (ii) the termination of this Agreement under Section 9.2 hereof, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or Non Voting Convertible Securities, or any securities of USDATA, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares. 4.1.2. During the Standstill Period, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares, if the effect of such acquisition of Beneficial Ownership would be to increase above the Standstill Limit the Voting Shares represented by all Voting Shares Beneficially Owned by Purchaser together with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party. 4.1.3. Purchaser shall not be deemed to have violated its covenants under this Section 4.1 solely by virtue of (and only to the extent of) any increase in the total number of Voting Shares Beneficially Owned by Purchaser together with any Affiliate or any 13D Group to which the Purchaser or any Affiliate is a party (i) if such increase is the result of a stock split, stock dividend, recapitalization or similar event, (ii) if such increase is the result of grant by the Company of stock options or restricted stock, pursuant to a stock option plan or restricted stock plan of the Company, to a director in the Company nominated in accordance with Section 6 below, (iii) if such increase is the result of the release of Additional Shares to the Purchaser pursuant to the Escrow Agreement, (iv) if such increase is the result of the distribution of Additional Shares by USDATA to the Purchaser, or (v) if such increase is the result of the issuance of Voting Shares directly by the Company to Purchaser or any of its Affiliates in consideration of a financing transaction of the Company or in connection with an acquisition by the Company, in each case provided that Purchaser shall promptly notify the Company in writing upon becoming aware that a person which is an Affiliate of Purchaser is, or is contemplating to be, a party to such transaction. 4.1.4. During the Standstill Period, no member of the Purchaser Control Group shall solicit or participate in any solicitation of proxies with respect to any Voting Shares, nor shall any member of the Purchaser Control Group seek to advise or influence any person with respect to the voting of any Voting Shares (other than as expressly provided in Section 5.1 of this Agreement). 4.1.5. During the Standstill Period, no member of the Purchaser Control Group shall subject any Voting Shares to any arrangement or agreement with any Person with respect to the voting of such Voting Shares, except as set forth in Section 5. 4.1.6. During the Standstill Period, no member of the Purchaser Control Group shall seek control of the management, Board of Directors or policies of the Company, except in accordance with any other provision of this Agreement. 4.1.7. Each member of the Purchaser Control Group shall (i) exercise any voting or similar right it may have in its capacity as a stockholder of a Portfolio Company against the taking of any action by such Portfolio Company which the Purchaser is prohibited to take by virtue of this Section 4.1 (“"PROHIBITED ACTION”"), (ii) not act in concert with any Portfolio Company to take any Prohibited Action, (iii) not induce any Portfolio Company to take any Prohibited Action, and (iv) subject to applicable law, use reasonable best efforts with the intention of not allowing the Portfolio Company to take a Prohibited Action, provided however that Purchaser shall not be obligated to take any action that results in the imposition of additional financial liabilities on the Purchaser, or which require the initiation of litigation proceedings. 4.1.8. Any violation of the covenants under this Section by a Purchaser Controlled Person, a Purchaser Controlling Person or a Purchaser Common Control Person shall be deemed to be a violation of this Agreement by Purchaser. 4.1.9. Notwithstanding Section 5 hereof, in the event of a violation of this Section 4.1, then, in addition to such other remedies as may be available at law, in equity or hereunder, the Purchaser hereby irrevocably appoints the Chairman of the Company’s 's Board of Directors, or any other designee of the Company, as the sole and exclusive attorneys and proxies of the Purchaser, with full power of substitution and resubstitution, to vote and exercise all voting rights with respect to such number of Voting Shares held by the Purchaser which are in excess of the number permitted to be Beneficially Owned at such time according to the provisions of this Section 4 4.1 by the Purchaser with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party (the “"EXCESS SHARES”", it being clarified that in the event of violation of Section 4.1.7, the Voting Shares acquired by the Portfolio Company shall be deemed to be Beneficially owned by Purchaser for the purpose of calculating the number of Excess Shares), in the proxy’s 's sole and absolute discretion, on every annual, general, special, class or adjourned meeting of the shareholders of the Purchaser and in every written consent in lieu of such meeting. To the extent the Voting Shares held by the Purchaser are less than the Excess Shares, the Purchaser shall take such action as may be reasonably required so that the Voting Shares Beneficially Owned by any member of the Purchaser Control Group (other than the Purchaser) shall be subject to such proxy, and shall use all reasonable efforts to cause any Voting Shares held by any Affiliate of Purchaser that is not a member of the Purchaser Control Group or any 13D Group of which Purchaser or any Affiliate of Purchaser is a party to be subject to such proxy, up to the maximum number of Excess Shares which are not covered by a proxy from the Purchaser. This irrevocable proxy shall only be effective during the period from the date of violation of this Section 4 until such time as the transfer of Excess Shares with respect to which the Option was exercised is effected. The parties hereby acknowledge that monetary damages may not be a sufficient or adequate remedy for violation of this Section 4.1 and that, in addition to any other remedy which may be available in law or equity, and without any waiver or limitation with respect thereto, the Company shall be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

THE PURCHASER'S STANDSTILL OBLIGATIONS. 4.1.1. From the date hereof until the earlier of (i) the Closing or (ii) the termination of this Agreement under Section 9.2 hereof, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or Non Voting Convertible Securities, or any securities of USDATA, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares. 4.1.2. During the Standstill Period, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares, if the effect of such acquisition of Beneficial Ownership would be to increase above the Standstill Limit the Voting Shares represented by all Voting Shares Beneficially Owned by Purchaser together with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party. 4.1.3. Purchaser shall not be deemed to have violated its covenants under this Section 4.1 solely by virtue of (and only to the extent of) any increase in the total number of Voting Shares Beneficially Owned by Purchaser together with any Affiliate or any 13D Group to which the Purchaser or any Affiliate is a party (i) if such increase is the result of a stock split, stock dividend, recapitalization or similar event, (ii) if such increase is the result of grant by the Company of stock options or restricted stock, pursuant to a stock option plan or restricted stock plan of the Company, to a director in the Company nominated in accordance with Section 6 below, (iii) if such increase is the result of the release of Additional Shares to the Purchaser pursuant to the Escrow Agreement, (iv) if such increase is the result of the distribution of Additional Shares by USDATA to the Purchaser, or (v) if such increase is the result of the issuance of Voting Shares directly by the Company to Purchaser or any of its Affiliates in consideration of a financing transaction of the Company or in connection with an acquisition by the Company, in each case provided that Purchaser shall promptly notify the Company in writing upon becoming aware that a person which is an Affiliate of Purchaser is, or is contemplating to be, a party to such transaction. 4.1.4. During the Standstill Period, no member of the Purchaser Control Group shall solicit or participate in any solicitation of proxies with respect to any Voting Shares, nor shall any member of the Purchaser Control Group seek to advise or influence any person with respect to the voting of any Voting Shares (other than as expressly provided in Section 5.1 of this Agreement). 4.1.5. During the Standstill Period, no member of the Purchaser Control Group shall subject any Voting Shares to any arrangement or agreement with any Person with respect to the voting of such Voting Shares, except as set forth in Section 5. 4.1.6. During the Standstill Period, no member of the Purchaser Control Group shall seek control of the management, Board of Directors or policies of the Company, except in accordance with any other provision of this Agreement. 4.1.7. Each member of the Purchaser Control Group shall (i) exercise any voting or similar right it may have in its capacity as a stockholder of a Portfolio Company against the taking of any action by such Portfolio Company which the Purchaser is prohibited to take by virtue of this Section 4.1 (“PROHIBITED ACTIONProhibited Action”), (ii) not act in concert with any Portfolio Company to take any Prohibited Action, (iii) not induce any Portfolio Company to take any Prohibited Action, and (iv) subject to applicable law, use reasonable best efforts with the intention of not allowing the Portfolio Company to take a Prohibited Action, provided however that Purchaser shall not be obligated to take any action that results in the imposition of additional financial liabilities on the Purchaser, or which require the initiation of litigation proceedings. 4.1.8. Any violation of the covenants under this Section by a Purchaser Controlled Person, a Purchaser Controlling Person or a Purchaser Common Control Person shall be deemed to be a violation of this Agreement by Purchaser. 4.1.9. Notwithstanding Section 5 hereof, in the event of a violation of this Section 4.1, then, in addition to such other remedies as may be available at law, in equity or hereunder, the Purchaser hereby irrevocably appoints the Chairman of the Company’s Board of Directors, or any other designee of the Company, as the sole and exclusive attorneys and proxies of the Purchaser, with full power of substitution and resubstitution, to vote and exercise all voting rights with respect to such number of Voting Shares held by the Purchaser which are in excess of the number permitted to be Beneficially Owned at such time according to the provisions of this Section 4 4.1 44.1 by the Purchaser with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party (the “EXCESS SHARESExcess Shares”, it being clarified that in the event of violation of Section 4.1.7, the Voting Shares acquired by the Portfolio Company shall be deemed to be Beneficially owned by Purchaser for the purpose of calculating the number of Excess Shares), in the proxy’s sole and absolute discretion, on every annual, general, special, class or adjourned meeting of the shareholders of the Purchaser and in every written consent in lieu of such meeting. To the extent the Voting Shares held by the Purchaser are less than the Excess Shares, the Purchaser shall take such action as may be reasonably required so that the Voting Shares Beneficially Owned by any member of the Purchaser Control Group (other than the Purchaser) shall be subject to such proxy, and shall use all reasonable efforts to cause any Voting Shares held by any Affiliate of Purchaser that is not a member of the Purchaser Control Group or any 13D Group of which Purchaser or any Affiliate of Purchaser is a party to be subject to such proxy, up to the maximum number of Excess Shares which are not covered by a proxy from the Purchaser. This irrevocable proxy shall only be effective during the period from the date of violation of this Section 4 until such time as the transfer of Excess Shares with respect to which the Option was exercised is effected. The parties hereby acknowledge that monetary damages may not be a sufficient or adequate remedy for violation of this Section 4.1 and that, in addition to any other remedy which may be available in law or equity, and without any waiver or limitation with respect thereto, the Company shall be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

THE PURCHASER'S STANDSTILL OBLIGATIONS. 4.1.12.1.1. Purchaser represents and warrants that as of the date hereof no member of the Purchaser Control Group Beneficially Owns any Voting Shares of the Company. From the date hereof until the earlier of (i) the Closing closing under the Asset Purchase Agreement or (ii) the termination of this Agreement under Section 9.2 Sections 6.2.1, 6.2.2 and 6.2.3 hereof, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or Non Voting Convertible Securities, or any securities of USDATA, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares. 4.1.22.1.2. During the Standstill Period, no member of the Purchaser Control Group shall acquire the Beneficial Ownership of Voting Shares or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire the Beneficial Ownership of Voting Shares, if the effect of such acquisition of Beneficial Ownership would be to increase above the Standstill Limit the Voting Shares represented by all Voting Shares Beneficially Owned by Purchaser together with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party. 4.1.32.1.3. Purchaser shall not be deemed to have violated its covenants under this Section 4.1 2.1 solely by virtue of (and only to the extent of) any increase in the total number of Voting Shares Beneficially Owned by Purchaser together with any Affiliate Affiliates or any 13D Group to which the Purchaser or any Affiliate is a party (i) if such increase is the result of a stock split, stock dividend, recapitalization or similar event, (ii) if such increase is the result of grant by the Company of stock options or restricted stock, pursuant to a stock option plan or restricted stock plan of the Company, to a director in the Company nominated in accordance with Section 6 belowCompany, (iii) if such increase is the result of the release of Additional Consideration Shares to the Purchaser pursuant to the Escrow Agreement, (iv) if such increase is the result of the distribution of Additional Shares by USDATA to the Purchaser, or (v) if such increase is the result of the issuance of Voting Shares directly by the Company to Purchaser or any of its Affiliates in consideration of a financing transaction of the Company or in connection with an acquisition by the Company, in each case provided that Purchaser shall promptly notify the Company in writing upon becoming aware that a person which is an Affiliate of Purchaser is, or is contemplating to be, a party to such transaction, or (vi) in the case of SCP – in accordance with the terms and conditions of the Share Purchase Agreement, dated July 29, 2003. 4.1.42.1.4. During the Standstill Period, no member of the Purchaser Control Group shall solicit or participate in any solicitation of proxies with respect to any Voting Shares, nor shall any member of the Purchaser Control Group seek to advise or influence any person with respect to the voting of any Voting Shares (other than as expressly provided in Section 5.1 3.1 of this Agreement). 4.1.52.1.5. During the Standstill Period, no member of the Purchaser Control Group shall subject any Voting Shares to any arrangement or agreement with any Person with respect to the voting of such Voting Shares, except as set forth in Section 53. 4.1.62.1.6. During the Standstill Period, no member of the Purchaser Control Group shall seek control of the management, Board of Directors or policies of the Company, except in accordance with any the other provision provisions of this Agreement. 4.1.72.1.7. Each member of the Purchaser Control Group shall (i) exercise any voting or similar right it may have in its capacity as a stockholder of a Portfolio Company against the taking of any action by such Portfolio Company which the Purchaser is prohibited to take by virtue of this Section 4.1 2.1 (“PROHIBITED ACTIONProhibited Action”), (ii) not act in concert with any Portfolio Company to take any Prohibited Action, (iii) not induce any Portfolio Company to take any Prohibited Action, and (iv) subject to applicable law, use reasonable best efforts with the intention of not allowing the Portfolio Company to take a Prohibited Action, provided however that Purchaser shall not be obligated to take any action that results in the imposition of additional financial liabilities on the Purchaser, or which require the initiation of litigation proceedings. 4.1.82.1.8. Any violation of the covenants under this Section 2.1 by a Purchaser Controlled Person, a Purchaser Controlling Person or a Purchaser Common Control Person shall be deemed to be a violation of this Agreement by Purchaser. 4.1.92.1.9. Notwithstanding Section 5 3 hereof, in the event of a violation of this Section 4.12.1, then, in addition to such other remedies as may be available at law, in equity or hereunder, the Purchaser hereby irrevocably appoints the Chairman of the Company’s Board of Directors, or any other designee of the Company, as the sole and exclusive attorneys and proxies of the Purchaser, with full power of substitution and resubstitution, to vote and exercise all voting rights with respect to such number of Voting Shares held by the Purchaser which are in excess of the number permitted to be Beneficially Owned at such time according to the provisions of this Section 4 4.1 2.1 by the Purchaser with any Affiliate and any 13D Group to which Purchaser or any Affiliate is a party (the “EXCESS SHARESExcess Shares”, it being clarified that in the event of violation of Section 4.1.7Section2.1.7, the Voting Shares acquired by the Portfolio Company shall be deemed to be Beneficially owned by Purchaser for the purpose of calculating the number of Excess Shares), in the proxy’s sole and absolute discretion, on every annual, general, special, class or adjourned meeting of the shareholders of the Purchaser and in every written consent in lieu of such meeting. To the extent the Voting Shares held by the Purchaser are less than the Excess Shares, the Purchaser shall take such action as may be reasonably required so that the Voting Shares Beneficially Owned by any member of the Purchaser Control Group (other than the Purchaser) shall be subject to such proxy, and shall use all reasonable efforts to cause any Voting Shares held by any Affiliate of Purchaser that is not a member of the Purchaser Control Group or any 13D Group of which Purchaser or any Affiliate of Purchaser is a party to be subject to such proxy, up to the maximum number of Excess Shares which are not covered by a proxy from the Purchaser. This irrevocable proxy shall only be effective during the period from the date of violation of this Section 4 2.1 until such time as the transfer of Excess Shares with respect to which the Option was exercised is effected. The parties hereby acknowledge acknowledges that monetary damages may not be a sufficient or adequate remedy for violation of this Section 4.1 2.1 and that, in addition to any other remedy which may be available in law or equity, and without any waiver wavier or limitation with respect thereto, the Company shall be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.