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EXHIBIT 10.11
USDATA CORPORATION
INVESTORS' RIGHTS AGREEMENT
August 6, 1999
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TABLE OF CONTENTS
Page
1. Registration Rights...................................................................................... 1
1.1 Definitions..................................................................................... 1
1.2 Shelf Registration.............................................................................. 2
1.3 Company Registration............................................................................ 3
1.4 Obligations of the Company...................................................................... 3
1.5 Furnish Information............................................................................. 5
1.6 Expenses of Shelf Registration.................................................................. 5
1.7 Expenses of Company Registration................................................................ 5
1.8 Underwriting Requirements....................................................................... 5
1.9 Delay of Registration........................................................................... 6
1.10 Indemnification................................................................................. 6
1.11 Reports Under Securities Exchange Act of 1934................................................... 8
1.12 Assignment of Registration Rights............................................................... 8
1.13 Limitations on Subsequent Registration Rights................................................... 8
1.14 Request for Registration........................................................................ 8
2. Rights Offering.......................................................................................... 9
2.1 Rights.......................................................................................... 9
2.2 Split........................................................................................... 11
2.3 Registration Statement.......................................................................... 11
2.4 Registration Process............................................................................ 11
2.5 Use of Proceeds................................................................................. 12
2.6 Registration Services........................................................................... 12
2.7 Indemnification................................................................................. 13
3. Directed Shares Offering................................................................................. 15
3.1 Directed Shares Registration.................................................................... 15
3.2 Directed Shares Subscription Program............................................................ 16
4. Miscellaneous............................................................................................ 16
4.1 Successors and Assigns.......................................................................... 16
4.2 Governing Law................................................................................... 16
4.3 Counterparts.................................................................................... 16
4.4 Titles and Subtitles............................................................................ 16
4.5 Notices......................................................................................... 16
4.6 Expenses........................................................................................ 16
4.7 Amendments and Waivers.......................................................................... 17
4.8 Severability.................................................................................... 17
4.9 Aggregation of Stock............................................................................ 17
4.10 Entire Agreement................................................................................ 17
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Schedule A Schedule of Investor
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INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (this "Agreement") is made as of the 6th
day of August, 1999, by and among USDATA Corporation, a Delaware corporation
(the "Company"), Safeguard Delaware, Inc. (the "Investor"), and (for the limited
purposes of Sections 2, 3 and 4 hereof) Safeguard Scientifics, Inc.
("Safeguard"). This Agreement shall become effective as of the Closing (as
defined therein) of the transactions contemplated by that certain Stock Purchase
Agreement dated as of even date herewith (the "Purchase Agreement") by and among
the Company and the Investor.
RECITALS
WHEREAS, the Company and the Investor are parties to the Purchase
Agreement;
WHEREAS, the execution of this Agreement is a condition precedent to the
Closing of the Purchase Agreement.
WHEREAS, in order to induce the Company to enter into the Purchase
Agreement and to induce the Investor to invest funds in the Company pursuant to
the Purchase Agreement, the Investor and the Company hereby agree that this
Agreement shall govern the rights of the Investor to cause the Company to
register shares of Common Stock and certain other matters as set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) the term "Act" means the Securities Act of 1933, as amended;
(b) the term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.12 hereof;
(c) the term "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended;
(d) the terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document;
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(e) the term "Registrable Securities" means the Common Stock issued and
sold to the Investor pursuant to the Purchase Agreement and the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock issued and
sold to the Investor pursuant to the Purchase Agreement, and any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of such
shares of Common Stock;
(f) the number of shares of "Registrable Securities then outstanding" shall
be determined by the number of shares of Common Stock outstanding which are, and
the number of shares of Common Stock issuable pursuant to any shares of Series A
Preferred Stock which are, Registrable Securities;
(g) the term "SEC" shall mean the Securities and Exchange Commission;
(h) the term "Shelf Registration Period" shall have the meaning set forth
in Section 1.2(b) hereof; and
(i) the term "Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section 1.2
hereof which covers all of the Registrable Securities on Form S-3 or on another
appropriate form for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 under the Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case, including the prospectus
contained therein, all exhibits thereto and all documents incorporated or deemed
to be incorporated by reference therein.
1.2 SHELF REGISTRATION.
(a) The Company shall prepare and, not later than the first anniversary of
the date hereof, shall file with the SEC a Shelf Registration Statement with
respect to resales of the Registrable Securities from time to time in accordance
with the methods of distribution elected by the Holders of the Registrable
Securities and set forth in such Shelf Registration Statement and thereafter
shall use its best efforts to cause such Shelf Registration Statement to be
declared effective under the Act prior to the first anniversary of the date
hereof. The Company shall supplement or amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for the Shelf Registration Statement, if
required by the Act, the 1934 Act or the SEC.
(b) The Company shall keep the Shelf Registration Statement continuously
effective under the Act in order to permit the prospectus forming a part thereof
to be usable by all Holders until the earliest of (i) the fifth anniversary of
the date hereof, (ii) the date as of which all Registrable Securities have been
transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force), and (iii) such date as of which all Registrable
Securities have been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall: (i) subject to Section 1.2(c), prepare and file with the SEC such
amendments and post-effective amendments to the Shelf
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Registration Statement as may be necessary to keep the Shelf Registration
Statement continuously effective for the Shelf Registration Period; (ii) subject
to Section 1.2(c), cause the related prospectus to be supplemented by any
required supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Act; and (iii) comply in all
material respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or
such prospectus as so supplemented.
(c) The Company may suspend the use of the prospectus forming a part of the
Shelf Registration Statement for two periods not to exceed an aggregate of 60
days in any twelve-month period for valid business reasons, to be determined by
the Company in its reasonable judgment (not including avoidance of the Company's
obligations hereunder), including, without limitation, the acquisition or
divestiture of assets, public filings with the SEC, pending corporate
developments and similar events. The Company shall provide written notice to the
Holders of any such suspension.
1.3 COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any securities under the
Act in connection with the public offering of such securities solely for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan, a registration on Form S-4 (or its
successor) relating to an offering of shares in connection with any acquisition
of any entity or business, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities or exercise of warrants which are
also being registered) and the Registrable Securities have not theretofore been
included in a Shelf Registration Statement pursuant to Section 1.2 that remains
effective, the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within 20 days after mailing of such notice by the Company, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered. The obligations of the Company under this Section 1.3 with respect
to any particular offering may be waived at any time upon the written consent of
Holders a majority of the outstanding Registrable Securities. The right of any
Holder to request inclusion of Registrable Securities held by it in any
registration pursuant to this Section 1.3 shall terminate if all shares of
Registrable Securities held or entitled to be held upon conversion by such
Holder are eligible to be sold under Rule 144 under the Act during any 90-day
period. In any event, such right shall terminate on the fifth anniversary of the
date hereof.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become
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effective, and in the case of a registration under Section 1.3 or 1.14 hereof,
upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for a period
of up to 120 days or, if earlier, until the distribution contemplated in such
registration statement has been completed; provided, however, that such 120-day
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions in which it is not, at
the time, so qualified or otherwise subject itself to general taxation in any
such states or jurisdictions;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering, it being understood and
agreed that each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement;
(f) notify each Holder of Registrable Securities covered by such
registration statement in writing at any time when a prospectus relating thereto
is required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(g) cause all such Registrable Securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed;
(h) provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration;
(i) use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of any such registration statement or the lifting of any
suspension of the
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qualification (or exemption from qualification) of any of the Registrable
Securities for offer or sale in any jurisdiction at the earliest possible time;
and
(j) cooperate in all necessary respects with (A) counsel in preparation of
the customary legal opinions and (B) accountants in preparation of the customary
comfort letters.
1.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.6 EXPENSES OF SHELF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company and the reasonable fees and
disbursements, which shall not exceed $25,000, of one counsel for the selling
Holders (to be selected by the Holders holding a majority of the Registrable
Securities) shall be borne and paid by the Company.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
1.3 for each Holder (which right may be assigned as provided in Section 1.13),
including (without limitation) all registration, filing, and qualification fees,
printers and accounting fees relating or apportionable thereto and the fees and
disbursements, which shall not exceed $25,000, of one counsel for the selling
Holders (to be selected by the holders of a majority of the Registrable
Securities to be registered), but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering involving an
underwriting of shares of the Company's capital stock under Section 1.3, the
Company shall not be required to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not, jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering. The securities so included shall be apportioned (a)
first to Holders selling Registrable Securities pro rata according to the total
amount of Registrable Securities entitled to be included therein owned by each
selling Holder and (b) second, to the extent determined by the underwriters to
be compatible with the offering, to other stockholders.
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1.9 DELAY OF REGISTRATION. No Holder shall have any right to obtain or seek
an injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) to the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to: (x) amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld); (y) any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person; (z) any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon such Holder's or
underwriter's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto;
(b) to the extent permitted by law, each selling Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.10(b), in connection with investigating or
defending any such loss, claim, damage, liability, or
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action; provided, however, that the indemnity agreement contained in this
subsection 1.10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 1.10(b)
exceed the gross proceeds from the offering received by such Holder;
(c) promptly after receipt by an indemnified party under this Section 1.10
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1.10, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10;
(d) if the indemnification provided for in this Section 1.10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. In no event shall
any contribution by a Holder under this subsection 1.10(d) exceed the gross
proceeds from the offering received by such Holder. In no event shall a person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) be entitled to contribution from any person or entity who was
not guilty of fraudulent misrepresentation;
(e) notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control; and
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(f) the obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. The Company shall cause
its Common Stock to continue to be registered under Sections 12(b) or 12(g) of
the 1934 Act, shall comply in all respects with its reporting and filing
obligations under the 1934 Act, and shall not take any action or file any
document (whether or not permitted by the 1934 Act or the rules thereunder) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the 1934 Act. The Company shall take all action
necessary to continue the listing or trading of its Common Stock on any national
securities exchange or the Automated Quotation System of the National
Association of Securities Dealers on which Common Stock is listed or traded, and
shall comply in all respects with its reporting, filing and other obligations
under the bylaws or rules of such exchange or association. The Company will
furnish to any Holder, so long as the Holder owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has
complied with the reporting requirements of SEC Rule 144, the Act and the 1934
Act or that it qualifies as a registrant whose securities may be resold pursuant
to Form S-3 under the Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents as are filed by the
Company under the 1934 Act, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned (but
only with all related obligations) by a Holder to (a) any partner or retired
partner of any holder which is a partnership, (b) any family member or trust for
the benefit of any individual holder, or (c) any transferee or assignee who,
after such assignment or transfer, holds at least 15% of the then outstanding
Registrable Securities, provided: (i) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement; and (iii) such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the date
of this Agreement, the Company shall not, without the prior written consent of
the Holders of a majority of the outstanding Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder to interfere with or otherwise limit a Holder's registration rights under
this Agreement.
1.14 REQUEST FOR REGISTRATION.
(a) If the Company shall at any time during the Shelf Registration Period
be ineligible to use Form S-3 or Form S-3 shall be for any reason unavailable to
register the
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Registrable Securities under the rules and regulation of the SEC, and the
duration of such ineligibility or unavailability exceeds or is expected to
exceed 60 days, the Holders shall have the right by a written request from the
Holders of a majority of the Registrable Securities then outstanding to the
Company, to require the Company to file a registration statement under the Act
covering the resales of at least 25% of the Registrable Securities then
outstanding (or a lesser percent if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed $10,000,000). Upon
its receipt of such a written request, the Company shall given written notice of
such request to all Holders within ten days thereof. The Company shall file as
soon as practicable, and in any event within 90 days of the receipt of such
request, a registration statement under the Act covering resales of all
Registrable Securities which Holders request to be registered, subject to the
limitations of subsection 1.14(b).
(b) If the Holders initiating the registration request hereunder (the
"Initiating Holders") intend to distribute the Registrable Securities covered by
their request by means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to subsection 1.14(a) and the Company shall
include such information in the written notice referred to in subsection
1.14(a). The managing underwriter shall be selected by a majority in interest of
the Initiating Holders and shall be reasonably acceptable to the Company. In
such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company as
provided in subsection 1.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.14, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) The Company shall not be obligated to effect, or to take any action to
effect, any registration pursuant to this Section 1.14(a) after the Company has
effected two registrations pursuant to this Section 1.14(a) and such
registrations have been declared or ordered effective; provided however, that a
registration will not count as a registration pursuant to this Section 1.14(a)
unless the Holders requesting registration are able to register the offering of
and sell at least 50% of the shares of Registrable Securities that they have
requested be included in such registration.
2. RIGHTS OFFERING.
2.1 RIGHTS.
(a) As used herein, the term "Subsidiary" shall mean, with respect to the
Company, any direct or indirect subsidiary of the Company more than 50% of the
outstanding voting securities of which are owned directly or indirectly by the
Company. The Company shall,
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upon receipt of a Rights Offering Notice (as defined below), cause the
Subsidiary designated as the "Relevant Subsidiary" in connection therewith (the
"Relevant Subsidiary"), to grant to the holders of the common stock of Safeguard
rights (the "Rights") to purchase from such Relevant Subsidiary such number of
shares of such Relevant Subsidiary's common stock as determined by Safeguard up
to a maximum of 40% of the sum of (i) all issued shares of common stock of such
Relevant Subsidiary, and (ii) all shares of common stock of such Relevant
Subsidiary subject to issuance pursuant to options, warrants or other
agreements, plans, instruments or understandings, all as of the effective date
of the registration statement relating to such Rights (the "Rights Registration
Statement"). The Rights shall be issued in an offering (the "Rights Offering")
pursuant to the Rights Registration Statement, shall be exercisable for a period
of no greater than 45 days after the commencement of the Rights Offering and
shall be transferable by the holder thereof during that period. The Company
shall cause the Relevant Subsidiary to engage an investment banking firm
selected by the Company, subject to the reasonable approval of Safeguard, which
firm shall underwrite, on a standby, firm commitment basis, any portion of the
offered common stock of the Relevant Subsidiary not purchased through the
exercise of Rights. The Company shall also engage legal counsel selected by
Safeguard, subject to the reasonable approval of a majority of the Board of
Directors of the Company, which counsel shall represent the Relevant Subsidiary
in connection with the conduct of the Rights Offering. The exercise price of the
Rights shall be determined by negotiation among the Relevant Subsidiary, the
underwriters and the selling stockholders, if any. Prior to the commencement of
the Rights Offering, the Company shall use its best efforts to cause (and shall
cause the Relevant Subsidiary to use its best efforts to cause) any holder of
more than 1% of the Relevant Subsidiary's common stock (or rights to acquire
more than 1% of the Relevant Subsidiary's common stock) and the Relevant
Subsidiary's officers and directors to execute and deliver to the underwriter of
the Rights Offering a market stand-off agreement. Such market stand-off
agreement shall provide that, during the period of duration specified by the
Relevant Subsidiary and the underwriter of common stock or other securities of
the Relevant Subsidiary following the effective date of the Rights Registration
Statement, such persons shall not, to the extent requested by the Relevant
Subsidiary and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Relevant Subsidiary held by
them at any time during such period except common stock included in such Rights
Registration Statement.
(b) Safeguard may initiate a Rights Offering with respect to any Subsidiary
by giving written notice to the Company (a "Rights Offering Notice") at any time
during the Rights Exclusivity Period (as hereinafter defined) at such time as
the total market value of such Subsidiary is at least $35,000,000, which
determination shall be made in good faith, upon request by Safeguard from time
to time, by the Board with the assistance and advice of such experts or
consultants as the Board may choose to retain, if any. The obligations of the
Company pursuant to this Section 2.1 shall commence on the date hereof and
expire on August 6, 2004 (such period, the "Rights Exclusivity Period"), unless
a registration statement relating to a Rights Offering has been filed with the
SEC by such date, in which case the Rights covered by such Registration
Statement shall not expire until 150 days after the date such filing was made.
(c) The Company agrees that it will not (i) sell or otherwise transfer any
of the capital stock of any Subsidiary owned by it, (ii) permit any Subsidiary
to merge or consolidate
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with any other person or entity other than the Company or another Subsidiary or
sell, lease or otherwise transfer any substantial portion of any Subsidiary's
assets, or (iii) permit any Subsidiary to undertake any registration of any of
its securities under the Act or the 1934 Act other than pursuant to this Section
2.1, in any case, prior to the earlier of the expiration of the Rights
Exclusivity Period or the completion of a Rights Offering with respect to such
Subsidiary, except with the consent of Safeguard.
(d) Upon closing of a Rights Offering with respect to any Subsidiary,
Safeguard's right to require such Subsidiary to conduct any further Rights
Offerings under this Section 2 and any Directed Shares Offering under Section 3
below shall terminate.
2.2 SPLIT. After Safeguard has notified the Company of its intention to
commence a Rights Offering, the Company shall, prior to the filing of the Rights
Registration Statement with respect thereto as provided hereinafter (or at such
earlier date as agreed to by the Company and Safeguard), take all such actions
as shall be necessary to cause the Relevant Subsidiary to cause a split of its
authorized common stock in such ratio as Safeguard shall determine. All
references to share amounts in this Agreement other than as specifically noted
shall be deemed to refer to share amounts prior to such split.
2.3 REGISTRATION STATEMENT. Upon notice by Safeguard to the Company of its
intention to commence a Rights Offering, the Company shall cause the Relevant
Subsidiary to promptly prepare a Rights Registration Statement to register under
the Act, the Rights and the shares of the common stock of the Relevant
Subsidiary to be acquired upon exercise of the Rights (the "Rights Shares"). The
Company covenants that such Rights Registration Statement and the prospectus
included therein shall be in form reasonably satisfactory to Safeguard, shall
comply in all material respects with the Act and the rules and regulations of
the SEC promulgated thereunder, shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and shall conform with the provisions of
Section 1.4 hereof.
2.4 REGISTRATION PROCESS. The Company shall use its best efforts to cause
the Relevant Subsidiary to cause the Rights Registration Statement to be filed
with the SEC and to become effective as promptly as practicable in accordance
with Section 1.4 hereof. The Company shall cause the Relevant Subsidiary to
prepare and file with the SEC, promptly upon Safeguard's request, any amendments
or supplements to the Rights Registration Statement or the related prospectus
that, in Safeguard's opinion, may be necessary or advisable in connection with
the Rights Offering, subject to the reasonable approval of counsel for the
Relevant Subsidiary. The Company shall not permit the Relevant Subsidiary to
file any amendment or supplement to the Rights Registration Statement or the
related prospectus unless (A) it has furnished Safeguard with a copy of such
amendment or supplement a reasonable time prior to filing and (B) Safeguard has
not reasonably objected to such amendment or supplement by notice to the Company
within 10 days of receipt of such copy. The Company shall not issue (and shall
not permit the Relevant Subsidiary to issue) any advertisement, press release,
mailing or other solicitation material of which Safeguard reasonably disapproves
by prompt written notice to the Company after receiving reasonable notice
thereof. The Company shall cause the Relevant Subsidiary to comply with the Act
and the rules and regulations thereunder in connection with
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the Rights Offering and, until the termination of the Rights Offering, the
Company shall cause the Relevant Subsidiary to use its best efforts to qualify
the Rights Shares under the securities laws of all jurisdictions in which
qualification is required and there are holders of Safeguard common stock and to
continue such qualifications in effect during the exercise period of the Rights.
At the time of mailing the prospectus relating to the Rights Offering and at the
time of the closing of the Rights Offering, Safeguard shall be entitled to
receive (A) from the Company and the Relevant Subsidiary such certificates and
documents evidencing compliance with such representations and warranties of the
Company and the Relevant Subsidiary as Safeguard shall reasonably request of the
Company, and (B) from the counsel and independent accountants of the Company and
the Relevant Subsidiary such opinions and documents as Safeguard may reasonably
request thereof as if it were applicable to the Rights Offering.
2.5 USE OF PROCEEDS. The Company shall cause the Relevant Subsidiary to
apply all proceeds of the Rights Offering first to the payment of the expenses
of the Rights Offering and thereafter to general working capital purposes or
such other purposes as shall be described in the related prospectus and agreed
to by Safeguard.
2.6 REGISTRATION SERVICES.
(a) Services. Safeguard shall diligently and in a timely fashion assist the
Company and the Relevant Subsidiary in structuring the Rights Offering, in
preparing the necessary registration statement and related disclosure
documentation, in clearing the Rights Offering with the SEC and applicable state
securities authorities and shall provide such other services and assistance in
connection with the Rights Offering as the Company or the Relevant Subsidiary
shall reasonably request. Nothing contained herein shall require Safeguard to
provide to the Company or the Relevant Subsidiary any services or assistance
which, if rendered by Safeguard, would require Safeguard to register as a
broker-dealer under Section 15 of the Exchange Act or any state securities laws,
or as an investment adviser under the Investment Advisor Act of 1940, as
amended.
(b) Working Group. The Company shall cause the counsel, auditors,
employees, officers and consultants of the Company and the Relevant Subsidiary
to render such assistance in consummating the Rights Offering, at the expense of
the Company, as is customary in the consummation by a company of its initial
public offering. In addition, in rendering services under this Section 2.6,
Safeguard may engage special legal counsel, one or more rights, registrar and
transfer agents, and such other consultants as Safeguard may deem necessary or
desirable in connection with the Rights Offering, subject to the reasonable
approval of the Company, the expenses of which shall be paid by the Company and
which are not included in the reimbursement described in Subsection 2.6(c)
below. In addition, Safeguard may require the Relevant Subsidiary to engage a
registered broker-dealer of Safeguard's designation, subject to the reasonable
approval of the Company, to provide such services in connection with the Rights
Offering as Safeguard may deem reasonably necessary or desirable, including
without limitation, to effect or underwrite the offering of the Rights or the
Rights Shares in states in which applicable state laws require that a registered
broker-dealer effect such offering.
(c) Expenses. The Company shall bear all reasonable costs and expenses of
the Rights Offering, including, but not limited to, the Relevant Subsidiary's
printing, legal and
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accounting fees and expenses, SEC and NASD filing fees and "Blue Sky" fees and
expenses; provided, however, that the Company shall have no obligation to pay or
otherwise bear any portion of the underwriters' discounts attributable to the
Rights Shares not being offered and sold by the Relevant Subsidiary, or the fees
and expenses of counsel for the selling holders of Rights Shares in connection
with the registration of the Rights Shares if other than counsel to the Relevant
Subsidiary. The Company shall reimburse Safeguard for its internal expenses
incurred under this Section 2 by payment of $50,000 on a nonaccountable basis,
such payment to be made on the earlier of the closing of the Rights Offering or
90 days after the Registration Statement is filed.
2.7 INDEMNIFICATION. In connection with the Rights Offering:
(a) to the extent permitted by law, the Company will indemnify and hold
harmless Safeguard, any underwriter (as defined in the Act) for Safeguard and
each person, if any, who controls Safeguard or underwriter within the meaning of
the Act or the 1934 Act, against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Act, the 1934 Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company or the Relevant Subsidiary of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934 Act
or any state securities law; and the Company will pay to Safeguard and each
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 2.7(a) shall not apply to: (x)
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld); (y) any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
Safeguard or the underwriter or controlling person; (z) any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
Safeguard's or the underwriter's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto;
(b) to the extent permitted by law, Safeguard will indemnify and hold
harmless the Relevant Subsidiary, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who controls the
Relevant Subsidiary within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in
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reliance upon and in conformity with written information furnished by Safeguard
expressly for use in connection with such registration; and Safeguard will pay,
as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 2.7(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 2.7(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of Safeguard, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 2.7(b)
exceed the gross public offering price of all such securities offered by
Safeguard and sold pursuant to such registration statement;
(c) promptly after receipt by an indemnified party under this Section
2.7(c) of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.7, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.7;
(d) if the indemnification provided for in this Section 2.7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. In no event shall
any contribution by Safeguard under this subsection 2.7(d) exceed the gross
public offering price of all such securities offered by Safeguard and sold
pursuant to such registration statement. In no event shall a person or entity
guilty of fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Act) be entitled to contribution from any person
or entity who was not guilty of fraudulent misrepresentation;
(e) notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control; and
(f) the obligations of the Company and Safeguard under this Section 2.7
shall survive the completion of the Rights Offering.
3. DIRECTED SHARES OFFERING.
3.1 DIRECTED SHARES REGISTRATION. Safeguard shall have the right to require
the Company to cause any Subsidiary to file a registration statement on Form S-1
for the registration of shares of the Subsidiary's common stock pursuant to this
Section 3 at such time as the total market value of such Subsidiary is at least
$35,000,000 (the "Directed Shares Offering"). Such registration statement shall
register common stock (i) sufficient in number to satisfy the Directed Shares
requirement described below and (ii) with an aggregate offering price, prior to
underwriting discounts and commissions, of at least $10,000,000. In connection
with such Directed Shares Offering, the Company shall cause the applicable
Subsidiary to adjust its authorized shares as requested by Safeguard in order to
facilitate distribution of Directed Shares to its stockholders. The Company
shall cause the applicable Subsidiary to engage (i) an underwriter or
underwriters selected by Safeguard, subject to the reasonable approval of a
majority of the Board of Directors of the Company, and (ii) legal counsel
selected by Safeguard, subject to the reasonable approval of a majority of the
Board of Directors of the Company, which counsel shall represent the applicable
Subsidiary in connection with the conduct of the Directed Shares Offering.
3.2 DIRECTED SHARES SUBSCRIPTION PROGRAM. In connection with the Directed
Shares Offering, the Company shall cause the applicable Subsidiary to:
(a) provide in the related underwriting agreement a right for Safeguard to
designate persons (the "Safeguard Designees") who may purchase from the
underwriter(s) shares of the Relevant Subsidiary's common stock (the "Directed
Shares") at the public offering price of such Subsidiary's common stock in the
Directed Shares Offering (the "IPO Price"); and
(b) use its best efforts to cause such Subsidiary to cause the underwriters
of the Directed Shares Offering to allow the Safeguard Designees to purchase at
the IPO Price that number of Directed Shares equal to the greater of (i) 20% of
the shares of common stock offered by such Subsidiary in such Directed Shares
Offering or (ii) 10% of the number of shares of Safeguard Common Stock
outstanding on the record date set by Safeguard for distribution of Directed
Shares (or subscription rights therefor) to its stockholders. Upon closing of
the Directed Shares Offering with respect to any Subsidiary and sale of the
number of shares set forth in this Section 3.2(b), Safeguard's right to require
the Company to cause such Subsidiary to conduct a Rights Offering pursuant to
Section 2 above shall terminate. The Company shall reimburse Safeguard for its
internal expenses incurred under this Section 3 by payment of
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$50,000 on a nonaccountable basis, such payment to be made on the earlier of the
closing of the Directed Shares Offering or 90 days after the Registration
Statement is filed.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
4.2 GOVERNING LAW. The construction, validity and interpretation of this
Agreement will be governed by the internal laws of the State of Delaware without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
4.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
4.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
overnight courier (with confirmation of receipt) or sent via facsimile (with
confirmation of receipt) (i) if to the Company, at USData Corporation, 0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx 00000 (fax: (000) 000-0000),
Attention: Xxxxxx X. Xxxxx, (ii) if to the Investor, at the address beneath the
Investor's name on Schedule A attached hereto or (iii) if to Safeguard, at
Safeguard Scientifics, Inc., 800 The Safeguard Building, 000 Xxxxx Xxxx Xxxxx,
Xxxxx, Xxxxxxxxxxxx 00000 (fax: (000) 000-0000).
Notice given by facsimile shall be confirmed by appropriate answer back and
shall be effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next business day after
receipt if not received during the recipient's normal business hours. All
notices by facsimile shall be confirmed promptly after transmission in writing
by certified mail or personal delivery. Any party may change any address to
which notice is to be given to it by giving notice as provided above of such
change of address.
4.6 EXPENSES. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
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4.7 AMENDMENTS AND WAIVERS. Any term other than Sections 2 and 3 and the
next sentence of this Agreement may be amended and the observance of any term
other than Sections 2 and 3 and the next sentence of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the shares of Registrable Securities then outstanding. Sections 2
and 3 and this sentence of this Agreement may be amended and the observance of
any term of Sections 2 and 3 and this sentence of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Safeguard.
4.8 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
4.9 AGGREGATION OF STOCK. All shares of securities held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
4.10 ENTIRE AGREEMENT. This Agreement (including the Schedules and Exhibits
hereto) constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Investors' Rights
Agreement as of the date first above written.
COMPANY:
USDATA CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
INVESTOR:
SAFEGUARD DELAWARE, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
OTHER PARTY:
SAFEGUARD SCIENTIFICS, INC.
(solely for the limited purpose of agreeing to
Sections 2, 3 and 4 hereof)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
22
SCHEDULE A
Investor
Safeguard Delaware, Inc.
c/o Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
