Exhibit 99.4
STANDBY STOCK PURCHASE AGREEMENT
THIS STANDBY STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into on this March __, 2000 by and among SAFEGUARD SCIENTIFICS,
INC., a Pennsylvania corporation ("Safeguard"), COMPUCOM SYSTEMS, INC., a
Delaware corporation ("CompuCom"), OPUS360 CORPORATION, a Delaware corporation
(the "Company"), and FLEETBOSTON XXXXXXXXX XXXXXXXX INC. ("Xxxxxxxxx Xxxxxxxx").
BACKGROUND
The Company is contemplating an initial public offering (the "Public
Offering") of its common stock, par value $.001 per share (the "Common Stock"),
through an underwritten public offering led by Xxxxxxxxx Xxxxxxxx, Bear, Xxxxxxx
& Co., Inc., X.X. Xxxxxx & Co. and E*Offering Corp. as the representatives of
the several underwriters (the "Underwriters").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE 1
THE TRANSACTION
1.1 In connection with the Public Offering, the Company will offer
1,050,000 shares of its Common Stock (the "Company SSP Shares")
directly to the shareholders of Safeguard as of December 16, 1999 (the
"Record Date") pursuant to a Safeguard Subscription Program (the
"SSP").
1.2 CompuCom Systems, Inc., will offer up to 300,000 shares of Common Stock
owned by it prior to the Public Offering (the "CompuCom Opus360
Shares") to the shareholders of Safeguard as of the Record Date, and
the CompuCom Opus360 Shares shall be included in the SSP.
1.3 If and to the extent the shareholders of Safeguard subscribe for more
shares of Common Stock than the aggregate of the Company SSP Shares and
the CompuCom Opus360 Shares (collectively, the "SSP Shares") Safeguard
will make an offer, or cause its subsidiary, Safeguard Delaware, Inc.
("Safeguard Delaware") to make an offer, of up to 400,000 shares of
Common Stock owned by it prior to the Public Offering (the "Safeguard
Opus360 Shares") to the shareholders of Safeguard as of the Record
Date, and the Safeguard Opus360 Shares shall be included in the SSP.
1.4 If and to the extent any of the SSP Shares are not subscribed for or,
if subscribed for, are not purchased by the shareholders of Safeguard
under the SSP, Safeguard shall, or shall cause Safeguard Delaware to,
purchase all such SSP Shares directly from the Company
and CompuCom, as the case may be, for its own account for investment
purposes only on the terms and subject to the conditions set forth
herein.
1.5 Safeguard will appoint ChaseMellon Shareholder Services, L.L.C.
("Chase") as the offering agent for the SSP. The offering agent will
determine the Safeguard shareholders as of the Record Date eligible to
participate in the SSP and will collect subscriptions and subscription
payments from eligible Safeguard shareholders until 6:00 p.m. on the
third business day following the date the Company and the Underwriters
determine the initial public offering price for the Common Stock.
1.6 Purchase Price.
(a) The purchase price (the "Purchase Price") for the SSP Shares and
the Safeguard Opus360 Shares shall be equal to the product of
multiplying (i) the aggregate number of shares, by (ii) the price
per share of Common Stock sold pursuant to the Public Offering
(the "IPO Price").
(b) Safeguard shall cause Chase to pay out of subscription funds
received on behalf of Safeguard's shareholders participating in
the SSP, to
(i) the Company, an amount equal to the Purchase Price (less
the amounts described in paragraph (iv) below) for all
Company SSP Shares on the day of the closing of the
Public Offering by wire transfer;
(ii) to CompuCom, an amount equal to the Purchase Price (less
the amounts described in paragraph (iv) below) for all
CompuCom Opus360 Shares on the day of the closing of the
Public Offering by wire transfer;
(iii) to Safeguard or Safeguard Delaware, an amount equal to
the Purchase Price (less the amounts described in
paragraph (iv) below) for all Safeguard Opus360 Shares
sold to Safeguard shareholders in the SSP in accordance
with the terms of an agreement between Safeguard and
Chase; and
(iv) For consideration of the services provided by Xxxxxxxxx
Xxxxxxxx in the Public Offering and with respect to the
SSP, Safeguard shall take such actions that are
necessary to ensure that ___% of the Purchase Price for
(i) all Company SSP Shares and (ii) all CompuCom Opus360
Shares and Safeguard Opus360 Shares purchased by
Safeguard shareholders in the SSP, shall be transmitted
by Chase by wire transfer in immediately available funds
to an account designated at least one business day prior
to the Closing by Xxxxxxxxx Xxxxxxxx.
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1.7 Closing.
(a) TIME AND PLACE. The closing under this Agreement (the "Closing")
will take place at 6:00 a.m., San Francisco time, at the time of
the closing of the Public Offering, at the offices of X'Xxxxxxxx
Graev and Karabell, LLP, or at such other time, date or place as
the parties shall mutually agree. The date on which the Closing
occurs is sometimes referred to herein as the "Closing Date."
(b) DELIVERIES AND PROCEEDINGS TO TRANSFER AGENT. On the Closing Date,
the Company shall instruct Chase to accept instructions from
Xxxxxxx Xxxxxxxxx, or her designee at Safeguard, for:
(i) transmission to the Company's transfer agent, American
Stock Transfer & Trust Company, of instructions for
delivery of the SSP Shares purchased by Safeguard
shareholders in the SSP;
(ii) delivery to Safeguard or Safeguard Delaware of the SSP
Shares not purchased by Safeguard shareholders;
(iii) the return to Safeguard of any Safeguard Opus360 Shares
that were not purchased in the SSP; and
(iv) delivery of the subscription funds collected by Chase to
the extent not paid to the Company, CompuCom and
Xxxxxxxxx Xxxxxxxx at the Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Safeguard, Safeguard
Delaware, and CompuCom as follows:
2.1 ORGANIZATION. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
2.2 POWER AND AUTHORITY. The Company has full corporate power and authority
to make, execute, deliver and perform this Agreement and the
transactions contemplated hereby.
2.3 AUTHORIZATION AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement by the Company have been duly authorized
by all necessary corporate action on the part of the Company, and this
Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
2.4 NO CONFLICTS. The performance by the Company of the provisions of this
Agreement, and the performance of the transactions contemplated hereby,
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (i) any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement
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or other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, (ii) the certificate of
incorporation or bylaws of the Company or any of its subsidiaries or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
2.5 NO ACTIONS, SUITS OR PROCEEDINGS. No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its or
their property is pending or, to the best knowledge of the Company,
threatened or contemplated, that could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPUCOM
CompuCom represents and warrants to the Company, Safeguard, Safeguard
Delaware, and the Underwriters as follows:
3.1 ORGANIZATION. CompuCom is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
3.2 POWER AND AUTHORITY. CompuCom has full corporate power and authority to
make, execute, deliver and perform this Agreement and the transactions
contemplated hereby.
3.3 AUTHORIZATION AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement by CompuCom have been duly authorized by
all necessary corporate action on the part of CompuCom, and this
Agreement constitutes the legal, valid and binding obligation of
CompuCom, enforceable against CompuCom in accordance with its terms.
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3.4 NO CONFLICTS. The performance by CompuCom of the provisions of this
Agreement, and the performance of the transaction contemplated hereby,
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (i) any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which CompuCom or any of its subsidiaries is a party or
bound or to which its or their property is subject, (ii) the
certificate of incorporation or bylaws of CompuCom or any of its
subsidiaries or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to CompuCom or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over CompuCom or any
of its subsidiaries or any of its or their properties.
3.5 NO ACTIONS, SUITS OR PROCEEDINGS. No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving CompuCom or any of its subsidiaries or its or
their property is pending or, to the best knowledge of CompuCom,
threatened or contemplated, that could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SAFEGUARD
Safeguard represents and warrants to the Company, CompuCom, and the
Underwriters as follows:
4.1 ORGANIZATION. Safeguard is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania. Safeguard Delaware is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware.
4.2 POWER AND AUTHORITY. Safeguard and Safeguard Delaware have full
corporate power and authority to make, execute, deliver and perform
this Agreement and the transactions contemplated hereby.
4.3 AUTHORIZATION AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement by Safeguard and Safeguard Delaware have
been duly authorized by all necessary corporate action on the part of
Safeguard and Safeguard Delaware, and this Agreement constitutes the
legal, valid and binding obligation of Safeguard and Safeguard
Delaware, enforceable against each of them in accordance with its
terms.
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4.4 AUTHORIZATION AND APPROVALS. All consents, approvals, authorizations
and orders necessary for the execution and delivery of this Agreement,
the completion of the SSP, and the sale and delivery of the Safeguard
Opus360 Shares have been obtained; and Safeguard and Safeguard Delaware
have full rights, power and authority to purchase the SSP Shares and to
sell the Safeguard Opus360 Shares as provided hereunder.
4.5 INVESTMENT INTENT. Safeguard represents, warrants and covenants that it
or Safeguard Delaware is acquiring any SSP Shares to be acquired
hereunder for their own accounts, as a long-term investment, and not
with the view to resale or redistribution. To that end, Safeguard
agrees it will retain and not sell, pledge, hypothecate or otherwise
transfer, directly or indirectly, any interest (beneficial or
otherwise) in the SSP Shares for a period of one year from the date of
the Closing and that it will cause Safeguard Delaware to observe the
same restrictions.
4.6 NO CONFLICTS. The performance by Safeguard and/or Safeguard Delaware of
the provisions of this Agreement, and the performance of the
transaction contemplated hereby, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, (i) any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which Safeguard or any of its
subsidiaries is a party or bound or to which its or their property is
subject, (ii) the certificate of incorporation or bylaws of Safeguard
or any of its subsidiaries or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to Safeguard or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over Safeguard or any of its subsidiaries or any of its or their
properties.
4.7 NO ACTIONS, SUITS OR PROCEEDINGS. No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving Safeguard or any of its subsidiaries or its or
their property is pending or, to the best knowledge of Safeguard,
threatened or contemplated, that could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby.
ARTICLE 5
CONDITIONS TO CLOSING; TERMINATION
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF SAFEGUARD. The obligations of
Safeguard and Safeguard Delaware to proceed with the Closing are
subject to the fulfillment prior to or at Closing of the following
conditions (any one or more of which may be waived in whole or in part
by Safeguard at Safeguard's option):
(a) BRINGDOWN OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in this Agreement shall be
true and correct on and as of the time of Closing, with the same
force and effect as though such representations and warranties had
been made on, as of and with reference to such
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time, and Safeguard shall have received a certificate, signed by
an executive officer of the Company, to such effect.
(b) PERFORMANCE AND COMPLIANCE. The Company shall have performed all
of the covenants and complied with all of the provisions required
by this Agreement to be performed or complied with by it on or
before the Closing, and Safeguard shall have received a
certificate, signed by an executive officer of the Company, to
such effect.
5.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY. The obligations
of the Company to proceed with the Closing hereunder are subject to the
fulfillment prior to or at Closing of the following conditions (any one
or more of which may be waived in whole or in part by the Company at
the Company's option):
(a) BRINGDOWN OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Safeguard and CompuCom contained in this
Agreement shall be true and correct on and as of the time of
Closing, with the same force and effect as though such
representations and warranties had been made on, as of and with
reference to such time, and Safeguard and CompuCom shall have
delivered to the Company certificates, signed by an executive
officer of Safeguard and of CompuCom, to such effect.
(b) PERFORMANCE AND COMPLIANCE. Safeguard and CompuCom shall have
performed all of the covenants and complied with all the
provisions required by this Agreement to be performed or complied
with by each of them on or before the Closing and Safeguard and
CompuCom shall have delivered to the Company certificates, signed
by an executive officer of Safeguard and of CompuCom, to such
effect.
5.3 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF COMPUCOM. The obligations of
CompuCom to proceed with the Closing hereunder are subject to the
fulfillment prior to or at Closing of the following conditions (any one
or more of which may be waived in whole or in part by CompuCom at
CompuCom's option):
(a) BRINGDOWN OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in this Agreement shall be
true and correct on and as of the time of Closing, with the same
force and effect as though such representations and warranties had
been made on, as of and with reference to such time, and the
Company shall have delivered to CompuCom a certificate, signed by
an executive officer of the Company, to such effect.
(c) PERFORMANCE AND COMPLIANCE. The Company shall have performed all
of the covenants and complied with all the provisions required by
this Agreement to be performed or complied with by it on or before
the Closing and the Company shall have delivered to CompuCom a
certificate, signed by an executive officer of the Company, to
such effect.
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5.4 SIMULTANEOUS CLOSING. The parties acknowledge and agree that the
Closing under this Agreement and the closing under the underwriting
agreement relating to the Public Offering shall occur simultaneously,
and are conditional upon one another.
5.5 Termination.
(a) WHEN AGREEMENT MAY BE TERMINATED. This Agreement may be terminated
at any time prior to Closing:
(i) by mutual consent of Safeguard and the Company; or
(ii) by Safeguard or the Company, if the Company shall have
withdrawn its Registration Statement on Form S-1
relating to the Public Offering (Reg. No. 333-93185).
(b) EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Safeguard or the Company, as provided above,
this Agreement shall forthwith terminate and there shall be no
liability on the part of either Safeguard, CompuCom or the
Company, except for liabilities arising from a breach of this
Agreement prior to such termination; provided, however, that the
obligations set forth in Article 6 hereof shall survive such
termination.
(c) Safeguard and CompuCom acknowledge that the execution of this
Agreement by the parties does not impose any obligation upon the
Company or the Underwriters to complete the Public Offering.
ARTICLE 6
CERTAIN ADDITIONAL COVENANTS
6.1 INDEMNIFICATION.
(a) Safeguard hereby agrees to indemnify the Company, CompuCom and
their respective affiliates and representatives, their respective
directors, officers and employees, and each person, if any, who
controls any of the foregoing within the meaning of the Securities
Act of 1933, as amended, and the Exchange Act of 1934, as amended,
and the rules and regulations thereunder (the "Indemnified
Persons"), against, and hold them harmless from, any loss,
liability, claim, damage or expense, joint or several ("Losses"),
arising directly or indirectly, out of or in connection with, the
SSP, including, without limitation, (i) costs and expenses
associated with the failure of any shareholders of Safeguard to
consummate purchases of SSP Shares for which they have subscribed,
(ii) any claims by shareholders of Safeguard or other persons
arising from the SSP, (iii) other costs and expenses, including
printing costs, the fees and expenses charged by Chase in
connection with the SSP, mailing expenses, any filings with
respect to the SSP with the governmental authorities of Canada or
any province thereof,
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and reasonable legal fees and expenses of Safeguard, CompuCom, the
Company and the Underwriters arising from the establishment,
execution and performance of the SSP and (iv) breach of its
representations and warranties hereunder, including any
representations and warranties relating to Safeguard Delaware.
Notwithstanding the foregoing, the term "Losses" shall not include
any loss, liability, claim, damage or expense arising from any
untrue or allegedly untrue statement of a material fact, or
omission or alleged omission of a material fact required to be
stated to make the statements not misleading, in any preliminary
or final prospectus contained in the Company's Registration
Statement on Form S-1 (Reg. No. 333-93185) or any amendments
thereto (the "Prospectus"), except for statements or omissions
regarding the SSP consistent with the information provided by
Safeguard to the Company and except for any materials related to
the SSP delivered to Safeguard's shareholders and not to other
recipients of the Prospectus generally. Safeguard agrees to
reimburse the Indemnified Persons, as incurred, for any reasonable
legal or other expenses reasonably incurred by them in connection
with investigating or defending any Losses.
(b) Promptly after receipt by an Indemnified Person of notice of the
commencement of any action for which indemnification or
contribution may be sought hereunder, such Indemnified Person will
notify Safeguard in writing of the commencement thereof. The
failure to so notify Safeguard will not relieve Safeguard from
liability under Section 6.1(a) above unless and to the extent that
Safeguard did not otherwise learn of such action and such failure
results in the forfeiture of substantial rights and defenses.
Safeguard shall be entitled to appoint counsel at Safeguard's
expense to represent the Indemnified Person in any action for
which indemnification is sought (in which case Safeguard shall not
thereafter be liable for the fees and expenses of separate counsel
retained by the Indemnified Person except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding
Safeguard's election to appoint counsel to represent the
Indemnified Person in an action, the Indemnified Person shall have
the right to employ separate counsel (including local counsel),
and Safeguard shall bear the reasonable fees, costs and expenses
of such counsel if (i) the use of counsel chosen by Safeguard to
represent the Indemnified Person would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both Safeguard and the
Indemnified Person and the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to
Safeguard, (iii) Safeguard shall not have employed counsel
reasonably satisfactory to the Indemnified Person within a
reasonable time after notification of the commencement of such
action or (iv) Safeguard shall have authorized the Indemnified
Person to employ separate counsel at the expense of Safeguard.
(c) Safeguard shall not, without the prior written consent of the
relevant Indemnified Person, settle or compromise or consent to
the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
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indemnification or contribution may be sought hereunder unless
such settlement, compromise or consent includes an unconditional
release of such Indemnified Person from all liability arising from
such claim, action, suit or proceeding. An Indemnified Person may
not settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be sought hereunder without the consent of Safeguard, such consent
not to be unreasonably withheld.
(d) In the event that the indemnity provided for in this Article 6 is
unavailable to or insufficient to hold harmless an Indemnified
Person for any reason, the Indemnified Persons and Safeguard shall
contribute to the Losses (including the legal and other expenses
attributable to investigating or defending same) to which the
Indemnified Person may be subject in such proportion as is
appropriate to reflect the relative fault of the Indemnified
Person and Safeguard in connection with the statements or
omissions that resulted in such Losses as well as any other
relevant equitable considerations, including that the Company
performed the SSP as an accommodation to Safeguard without any
legal obligation to do so. Relative fault shall be determined by
reference to, among other things, whether any untrue or allegedly
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided
by the Indemnified Person or Safeguard, the intent of the
Indemnified Person and Safeguard, and their relative knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not
be just and equitable if contribution was determined by any method
of allocation that does not take into account the equitable
considerations discussed above.
6.2 TERMS OF SSP. Safeguard hereby agrees that it will conduct the SSP in
accordance with the description thereof set forth in the Company's
Registration Statement and the related exhibits. The Company will cause
the description of the SSP in its Registration Statement to conform to
the information provided by Safeguard.
ARTICLE 7
MISCELLANEOUS
7.1 NATURE AND SURVIVAL OF REPRESENTATIONS. The representations,
warranties, covenants and agreements of CompuCom, Safeguard and the
Company contained in this Agreement, and all statements contained in
this Agreement or any exhibit hereto or any certificate or other
document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby, shall be deemed to constitute
representations, warranties, covenants and agreements of the respective
party delivering the same. All such representations, warranties,
covenants and agreements shall survive the Closing.
7.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or, if mailed,
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when mailed by United States first-class, certified or registered mail
(or by a recognized national courier service), postage prepaid, to the
other party at the following addresses (or at such other address as
shall be given in writing by any party to the other):
(a) If to Safeguard, to:
Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) If to CompuCom, to:
CompuCom Systems, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxx Xxxxxxx, CEO
(c) If to the Company, to:
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxx
With a required copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(d) If to Xxxxxxxxx Xxxxxxxx, to:
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
With a required copy to:
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Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
7.3 THIRD PARTY BENEFICIARIES. Safeguard acknowledges that each of the
Underwriters of the Public Offering shall be a third party beneficiary
entitled to exercise the rights and remedies provided for herein
directly against Safeguard. The Company agrees to cooperate with and
assist each of the Underwriters of the Public Offering with respect to
any action such Underwriters take to exercise such rights and remedies
directly against Safeguard. Safeguard and the Company acknowledge that
their agreements and covenants under this Agreement constitute a
material inducement to the Underwriters to effect the Public Offering
and to enter into the related underwriting agreement with the Company,
and agree not to amend, modify or waive the terms of this Agreement in
any way that Xxxxxxxxx Xxxxxxxx reasonably concludes to be detrimental
to the Underwriters without the prior written of Xxxxxxxxx Xxxxxxxx.
7.4 SUCCESSORS AND ASSIGNS. This Agreement, and all rights and powers
granted hereby, will bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns but shall
not be assignable or delegable by any party without the prior written
consent of the other party.
7.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without
giving effect to its principles of conflicts of laws.
7.6 HEADINGS. The headings preceding the text of the sections and
subsections hereof are inserted solely for convenience of reference,
and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
7.7 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but which together shall constitute
one and the same instrument. Each such copy shall be deemed an original
and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
7.8 FURTHER ASSURANCES. Each party shall cooperate and take such action as
may be reasonably requested by the other party in order to carry out
the provisions and purposes of this Agreement and the transactions
contemplated hereby.
7.9 AMENDMENT AND WAIVER. The parties may by mutual agreement amend this
Agreement in any respect, and either party, as to such party, may,
subject to the provisions of Section 7.3 above, (a) extend the time for
the performance of any of the obligations of the other party, (b) waive
any inaccuracies in representations by the other party, (c) waive
compliance by the other party with any of the agreements contained
herein and
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performance of any obligations by the other party, and (d) waive the
fulfillment of any condition that is precedent to the performance by
such party of any of its obligations under this Agreement. To be
effective, any such amendment or waiver must be in writing and be
signed by the party against whom enforcement of the same is sought.
7.10 ENTIRE AGREEMENT. This Agreement sets forth all of the promises,
covenants, agreements, conditions and undertakings between the parties
hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written.
7.11 INTERPRETATIONS. No party to this Agreement shall be considered the
draftsman. This Agreement has been reviewed, negotiated and accepted by
all parties and their attorneys and shall be construed and interpreted
according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SAFEGUARD SCIENTIFICS, INC.
By:
----------------------------------------
Name:
Title:
COMPUCOM SYSTEMS, INC.
By:
----------------------------------------
Name:
Title:
OPUS360 CORPORATION
By:
----------------------------------------
Name:
Title:
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
By:
----------------------------------------
Name:
Title:
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