AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT TO SECOND AMENDED AND RESTATED INVESTORS'
RIGHTS AGREEMENT ("Amendment") is made and entered into as of the 14th day of
January, 2003, by and between USDATA Corporation, a Delaware corporation (the
"Company") and SCP Private Equity Partners II, L.P., a Delaware limited
partnership. ("SCP").
BACKGROUND
WHEREAS, the Company and SCP are parties to that certain Second
Amended and Restated Investors' Rights Agreement dated as of March 30,
2001, by and among the Company, SCP and certain parties as set forth
therein (the "Investors' Rights Agreement"); and
WHEREAS, pursuant to that certain Series C Preferred Stock Purchase
Agreement dated as of January 14, 2003, by and between the Company and SCP
(the "Stock Purchase Agreement"), SCP will purchase (i) up to 37,500
shares of the Company's $0.01 par value per share Series C-1 preferred
stock (the "Series C-1 Preferred Stock"), (ii) a warrant (the "Series C
Warrant") to purchase up to 18,750 shares of the Company's $0.01 par value
per share Series C-2 preferred stock (the "Series C-2 Preferred Stock"),
and (iii) 619,186 shares of the Company's $0.01 par value per share common
stock (the "Common Stock");
WHEREAS, as a condition of closing the transactions contemplated by
the Stock Purchase Agreement, SCP desires the Investors' Rights Agreement
to be amended to include as Series C Registrable Securities, as such term
is defined in Section 1.1 of the Investors' Rights Agreement, (i) the
Common Stock purchased by SCP under the Stock Purchase Agreement; (ii) the
Common Stock issued or issuable upon conversion of the Series C-1
Preferred Stock purchased by SCP under the Stock Purchase Agreement; (iii)
the Common Stock issued or issuable upon conversion of the Series C-2
Preferred Stock issued pursuant to the exercise of the Series C Warrant;
and (iv) 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 the securities referenced under (i),
(ii) and (iii) above;
WHEREAS, Section 5.7 of the Investors' Rights Agreement provides
that Section 1.1 of the Investors' Rights Agreement may be amended with
the written consent of the Company, the holders of a majority of the
shares of the Series C Registrable Securities (as defined in the
Investors' Rights Agreement) and the holders of a majority of the Series A
and B Registrable Securities (as defined in the Investors' Rights
Agreement).
WHEREAS, SCP holds a majority of the Series C Registrable Securities
and a majority of the Series A and B Registrable Securities.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Section 1.1(m) of the Investors' Rights Agreement is hereby amended to
read in its entirety as follows:
(m) the term "Series C Registrable Securities" means the Common
Stock issuable or issued upon conversion of (i) the Series C-1
Preferred Stock issued and sold to SCP pursuant to the Purchase
Agreement and/or that certain Series C Preferred Stock Purchase
Agreement dated as of January 14, 2003 by and between the Company
and SCP and/or (ii) the Series C-2 Preferred Stock issued to SCP
upon its exercise of the Warrant (as defined in the Purchase
Agreement) and/or that certain Warrant dated as of January 14, 2003
to purchase up to 18,750 shares of the Series C-2 Preferred Stock,
held by SCP.
2. Except as expressly set forth herein, all of the terms and conditions
of the Investors' Rights Agreement shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
COMPANY:
USDATA CORPORATION
By: /S/ Xxxxx X. Fleet
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Name: Xxxxx X. Fleet
Title: Chief Executive Officer and President
SCP:
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 X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Manager
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