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 Company SSP Shares or the CompuCom
Opus360 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 offered in
the SSP, 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 4.0% of the Purchase Price for (i) all Company SSP Shares
and (ii) all CompuCom Opus360 Shares and Safeguard Opus360
Shares purchased by Safeguard shareholders, Safeguard or
Safeguard Delaware 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, CompuCom and the Underwriters 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.
3.4 AUTHORIZATION AND APPROVALS. All consents, approvals, authorizations
and orders necessary for the execution and delivery of this Agreement
and the sale and delivery of the CompuCom Opus360 Shares have been
obtained, and CompuCom has full rights, power and authority to sell the
CompuCom Opus360 Shares as provided hereunder.
3.5 GOOD AND MARKETABLE TITLE. CompuCom has good and marketable title to
the CompuCom Opus360 Shares, free and clear of any liens, encumbrances,
equities and claims, and full right, power and authority to effect the
sale and delivery of such shares; and upon the delivery of, against
payment for, such shares, the purchasers thereof will acquire good and
marketable title thereto, free and clear of any liens, encumbrances,
equities and claims.
3.6 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
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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.
3.7 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 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.
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 GOOD AND MARKETABLE TITLE. Safeguard has good and marketable title to
the Safeguard Opus360 Shares, free and clear of any liens,
encumbrances, equities and claims, and full
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right, power and authority to effect the sale and delivery of such
shares; and upon the delivery of, against payment for, such shares, the
purchasers thereof will acquire good and marketable title thereto, free
and clear of any liens, encumbrances, equities and claims.
4.6 INVESTMENT INTENT. Safeguard represents, warrants and covenants that it
or Safeguard Delaware is acquiring any SSP Shares (including the
CompuCom Opus360 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, offer to sell, pledge, hypothecate or otherwise transfer,
directly or indirectly, any interest (beneficial or otherwise) in the
SSP Shares (including the CompuCom Opus360 Shares) purchased hereunder
for a period of one year from the date of the Closing and that it will
cause Safeguard Delaware to observe the same restrictions.
4.7 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.
4.8 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, if such waiver is consented to in writing by
Xxxxxxxxx Xxxxxxxx):
(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
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have delivered to CompuCom a certificate, signed by an
executive officer of the Company, to such effect.
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. In addition, the Company and the Underwriters may,
by mutual agreement, change any of the terms of the Proposed
Offering, including by effecting the Proposed Offering without
the SSP.
ARTICLE 6
CERTAIN ADDITIONAL COVENANTS
6.1 INDEMNIFICATION.
(a) Safeguard hereby agrees to indemnify the Underwriters, 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
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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, 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) any 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.
Safeguard hereby confirms that the information contained in
the Prospectus describing the SSP and relating to Safeguard's
and CompuCom's beneficial ownership of shares of the Company's
Common Stock has been furnished by Safeguard and is accurate
in all material respects.
(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
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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 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 and the Underwriters 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,
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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, 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:
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FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
With a required copy to:
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, CompuCom 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.
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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 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. 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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