EXHIBIT 3
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement (the "Agreement") is made and entered
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into as of this 30th day of March, 2001, by and among the Investors listed on
Schedule A hereto (each, an "Investor" and collectively, the "Investors"), SCP
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Private Equity Partners II, L.P., a Delaware limited partnership ("SCP"), and
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USDATA Corporation, a Delaware corporation (the "Corporation").
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Recitals
WHEREAS, SCP has agreed to purchase from USDATA Corporation (the
"Company"), and the Company has agreed to issue and sell to SCP, shares of the
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Company's Series C-1 Preferred Stock , $0.01 per share ("Series C-1 Stock"), and
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to issue to SCP a warrant to purchase shares of the Company's Series C-2
Preferred Stock, $0.01 per share ("Series C-2 Stock"), pursuant to that certain
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Series C Preferred Stock Purchase Agreement, dated as of even date herewith (the
"Purchase Agreement"), by and between the Company and SCP;
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WHEREAS, each of the Investors is a holder of shares of the Company's
Common Stock, par value $0.01 per share ("Common Stock"), Series A Preferred
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Stock, par value $0.01 per share ("Series A Stock"), and/or Series B Preferred
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Stock, par value $0.01 per share ("Series B Stock") (The Common Stock, the
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Series A Stock, and the Series B Stock are sometimes hereinafter referred to as
the "Capital Stock.");
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WHEREAS, in order to induce SCP to enter into the Purchase Agreement and to
consummate the transactions contemplated thereby, the Investors have agreed to
grant SCP a right of first refusal with respect to transfers of their Capital
Stock;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Definitions.
1.1 "Investor Stock" shall mean the shares of the Company's Common Stock
or Preferred Stock now owned or subsequently acquired by the Investors.
1.2 "Preferred Stock" shall mean shares of the Series A Stock, the Series
B Stock, the Series C-1 Stock and Series C-2 Stock.
1.3 "Transfer" shall include any sale, assignment, encumbrance,
hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or
descent, or other transfer or disposition of any kind, including, but not
limited to, transfers to receivers, levying creditors, trustees or receivers in
bankruptcy proceedings or general assignees for the benefit of creditors,
whether voluntary or by operation of law, directly or indirectly, of any of the
Investor Stock.
2. Transfers.
2.1 Prohibition on Transfers. Except as otherwise permitted herein, no
Investor shall Transfer any Investor Stock unless such Investor has complied
with all of the terms of this Agreement. Any purported Transfer in violation of
this Agreement shall be void and ineffective and shall not operate to transfer
any interest or title to the purported transferee. Notwithstanding the
foregoing, the prohibition on Transfer shall not apply to (a) any existing
pledge or hypothecation of any Investor Stock, (b) any future pledge or
hypothecation by an Investor of its Investor Stock if, in the case of such
future pledge or hypothecation, the proposed pledgee or beneficiary of the
hypothecation agrees in writing to be bound by the terms of this Agreement, or
(c) one or more sales pursuant to Rule 144 of the Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities Act
of 1933, as amended, if the number of shares sold during any three-month period
is not greater than one percent of the outstanding shares of the Company's
Common Stock at the commencement of such three-month period.
2.2 Notice of Transfer. If an Investor proposes to Transfer any shares of
Investor Stock pursuant to a bona fide offer, then the Investor shall promptly
give written notice (the "Notice") to SCP at least fifteen (15) days prior to
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the closing of such Transfer. The Notice shall describe in reasonable detail
the proposed Transfer including, without limitation, the number of shares of
Investor Stock to be transferred, the nature of such Transfer, the consideration
to be paid, and the name and address of each prospective purchaser or
transferee, and shall include a copy of the bona fide offer.
2.3 Right of First Refusal. SCP shall have the right, exercisable upon
written notice to the Investor (the "Exercise Notice") within five (5) days
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after the receipt of the Notice, to purchase the Investor Stock subject to the
Notice and on the same terms and conditions as set forth therein. SCP shall
effect the purchase of the Investor Stock, including payment of the purchase
price, not more than ten (10) days after delivery of the Exercise Notice, and at
such time the Investor shall deliver to SCP the certificate(s) representing the
Investor Stock to be purchased by SCP, each certificate to be properly endorsed
for transfer. In the event that SCP shall not elect to exercise its right of
first refusal with respect to all of the offered Investor Stock, the Investor
shall be permitted to Transfer the Investor Stock to the bona fide transferee on
terms no less favorable to the Investor than the terms provided for in the bona
fide offer. In the event that such Transfer to the bona fide transferee shall
not be effectuated within sixty (60) days after delivery of the Notice to SCP,
any proposed Transfer thereafter by the Investor shall become subject to the
terms of this Agreement.
3. Legend.
3.1 Each certificate representing shares of Investor Stock now or
hereafter owned by the Investors shall be endorsed with the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS
OF A RIGHT OF FIRST REFUSAL BY AND BETWEEN THE STOCKHOLDER, THE
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COMPANY AND CERTAIN HOLDERS OF STOCK OF THE COMPANY. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY."
3.2 The Investors agree that the Company may instruct its transfer agent
to impose transfer restrictions on the shares represented by certificates
bearing the legend referred to in Section 3.1 above to enforce the provisions of
this Agreement and the Company agrees to promptly do so. The legend shall be
removed upon termination of this Agreement.
4. Miscellaneous.
4.1 Conditions to Exercise of Rights. Exercise of SCP's rights under this
Agreement shall be subject to and conditioned upon, and the Investors and the
Company shall use their best efforts to assist SCP in, compliance with
applicable laws.
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 Successors in Interest. The provisions of this Agreement shall be
binding upon the successors in interest to any of the shares of the Investor
Stock subject to this Agreement. The Company shall not permit the transfer of
any shares of Investor Stock on its books or issue a new certificate
representing any shares of Investor Stock unless and until the person to whom
such security is to be transferred shall have executed a written agreement,
substantially in the form of this Agreement, pursuant to which such person
becomes a party to this Agreement and agrees to be bound by all the provisions
hereof as if such person were an Investor.
4.4 Assignability. 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.
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: General Counsel, (ii) if to an Investor, at the address beneath such
Investor's name on Schedule A attached hereto, and (iii) if to SCP, at Building
300, 000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel
(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.
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4.6 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.
4.7 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.
4.8 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.
4.9 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
4.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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The foregoing Right of First Refusal Agreement is hereby executed as of the date
first above written.
SAFEGUARD DELAWARE, INC.
By: /s/ N. Xxxxxxx Xxxxxxx
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Name: N. Xxxxxxx Xxxxxxx
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Title: Vice President
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SAFEGUARD 2000 CAPITAL, L.P.
By: Safeguard Delaware, Inc.,
its General Partner
By: /s/ N. Xxxxxxx Xxxxxxx
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Name: N. Xxxxxxx Xxxxxxx
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Title: Vice President
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SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP Private Equity II General Partner, L.P.,
its General Partner
By: SCP Private Equity II LLC,
its Manager
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
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Title: Manager
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USDATA CORPORATION
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Chief Executive Officer
SCHEDULE A
Investors
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Safeguard Delaware, Inc.
c/o Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
ATTN: Chief Financial Officer
Safeguard 2000 Capital, L.P.,
c/o Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
ATTN: Chief Financial Officer
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