Execution Form
STOCKHOLDER UNDERTAKING
This Stockholder Undertaking (the "UNDERTAKING") dated as of July 29, 2003
is made and given by SCP Private Equity Partners II, L.P. ("STOCKHOLDER") in
favor of and for the benefit of Tecnomatix Technologies Ltd., a company
incorporated in Israel ("TECNOMATIX").
RECITALS:
WHEREAS, Tecnomatix, USDATA Corporation, a Delaware corporation ("USDATA") and
other parties named therein are entering into an Asset Purchaser Agreement of
even date herewith (the "ASSET PURCHASE AGREEMENT") that provides (subject to
the conditions set forth therein) for the purchase of substantially all of the
assets of USDATA by Tecnomatix (the "TRANSACTION"). Capitalized terms used but
not otherwise defined in this Undertaking have the meanings ascribed to such
terms in the Asset Purchase Agreement; and
WHEREAS, Tecnomatix has set, as an inducement for entering into the Asset
Purchase Agreement, a requirement that it receive the undertakings set forth
herein from Stockholder, and Stockholder has agreed to deliver this Undertaking;
and
WHEREAS, in order to induce Tecnomatix to enter into the Asset Purchase
Agreement, Stockholder is making the undertakings set forth herein.
UNDERTAKINGS
Stockholder, intending to be legally bound, agrees as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Undertaking:
1.1. "ACQUISITION PROPOSAL" shall mean any inquiry or any proposal by any
person or entity with respect to USDATA or any of its Subsidiaries that
constitutes or could reasonably be expected to lead to an Acquisition
Transaction.
1.2. "ACQUISITION TRANSACTION" shall mean, other than the Transaction, any
acquisition or purchase, grant of exclusive license or a similar right or
other disposition of, a substantial amount of assets of, or any equity
interest in USDATA, or any merger, consolidation, business combination,
amalgamation, recapitalization, liquidation, dissolution, or similar
transaction involving USDATA or any of its Subsidiaries or a substantial
amount of the Assets. Notwithstanding anything set forth herein to the
contrary, no transaction between or among USDATA and any of its
Subsidiaries shall constitute an Acquisition Transaction.
1.3. "EXPIRATION DATE" shall mean the date upon which the earlier of the
following occurs: (a) 9 months have elapsed from termination of the Asset
Purchase Agreement, or (b) the date of the closing of the Transaction.
1.4. For purposes of this Undertaking, Stockholder shall be deemed to "OWN"
or to have acquired "OWNERSHIP" of a security if Stockholder: (i) is the
record owner of such security; or (ii) is the "beneficial owner" (within
the meaning of Rule 13d-3 under the Exchange Act) of such security.
1.5. "SUBJECT SECURITIES" shall mean: (i) securities of USDATA (including
all USDATA shares and all options, warrants and other rights to acquire
USDATA shares) Owned by Stockholder as of the date of this Undertaking; and
(ii) all additional securities of USDATA (including all additional USDATA
shares and all additional options, warrants and other rights to acquire
USDATA shares) of which Stockholder acquires Ownership during the period
from the date of this Undertaking through the Expiration Date.
1.6. "UNDERTAKING SHARES" shall mean 824,558 shares of Common Stock, 25,000
shares of Series A Preferred Stock of USDATA, 132,500 shares of Series B
Preferred Stock of USDATA and 56,250 shares of Series C-1 Preferred Stock
of USDATA.
1.7. For purposes of this Undertaking, a Person shall be deemed to have
effected a "TRANSFER" of a security if such Person directly or indirectly:
(i) sells, pledges, encumbers, grants an option with respect to, transfers
or disposes of such security or any interest in such security; or (ii)
enters into an agreement or commitment contemplating the possible sale of,
pledge of, encumbrance of, grant of an option with respect to, transfer of
or disposition of such security or any interest therein.
2. TRANSFER AND VOTING OF SUBJECT SECURITIES.
2.1. NO TRANSFER OF SUBJECT SECURITIES. Stockholder represents and warrants
to Tecnomatix that (i) such Stockholder is a record or beneficial owner of
the Subject Securities set forth on the signature page of this Undertaking
with power to vote the Subject Securities or cause the Subject Securities
to be voted; and (ii) the Subject Securities set forth on the signature
page hereto constitute such Stockholder's entire interest in the
outstanding capital stock and voting securities of USDATA. Stockholder
agrees that, during the period from the date of this Undertaking through
the Expiration Date, Stockholder shall not cause or permit any Transfer of
any of the Subject Securities to be effected. Stockholder understands and
agrees that if Stockholder attempts to transfer, vote or provide any other
person with the authority to vote any of the Subject Securities other than
in compliance with this Undertaking, USDATA shall not, and Stockholder
hereby unconditionally and irrevocably instructs USDATA to not, permit any
such transfer on its books and records, issue a new certificate
representing any of the Subject Securities or record such vote unless and
until such Stockholder shall have complied with the terms of this
Undertaking.
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2.2. NO TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Undertaking through the Expiration Date,
Stockholder shall ensure that: (i) none of the Subject Securities is
deposited into a voting trust; and (ii) other than the Irrevocable Proxy
described below, no proxy or power-of-attorney is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the
Subject Securities.
2.3. AGREEMENT TO VOTE SUBJECT SECURITIES AND TAKE CERTAIN OTHER ACTION.
Prior to the Expiration Date, at every meeting of the stockholders of
USDATA at which any of the following matters is considered or voted upon,
and at every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of USDATA with respect to
any of the following matters, Stockholder shall vote, or cause the holder
of record to vote, all the Undertaking Shares in favor of the Transaction,
the Asset Purchase Agreement and any related transaction and any proposal
or action presented to a stockholder vote which would, or could reasonably
be expected to, facilitate the Transaction and against any Acquisition
Transaction or any proposal or action presented to a stockholder vote which
would or could reasonably be expected to hinder, defeat or disturb the
Transaction or facilitate an Acquisition Transaction. Prior to the
Expiration Date, Stockholder, as the holder of voting stock of USDATA,
shall be present, in person or by proxy, or cause the holder of record to
be present, in person or by proxy, at all meetings of stockholders of
USDATA at which any matter referred to in this Section y2 is to be voted
upon so that all Subject Securities are counted for the purposes of
determining the presence of a quorum at such meetings.
2.4. IRREVOCABLE PROXY. Stockholder hereby delivers to Tecnomatix a duly
executed proxy in the form attached hereto as ANNEX A (the "PROXY"), such
Proxy to cover all the issued and outstanding Undertaking Shares
(including, without limitation, each written consent in lieu of a meeting)
prior to the Expiration Date. Upon the execution of this Undertaking by
Stockholder, Stockholder hereby revokes any and all prior proxies or powers
of attorney given by Stockholder with respect to voting of any and all of
the Undertaking Share on the matters referred to in Section y2 and agrees
not to grant any subsequent proxies or powers of attorney with respect to
the voting of the Undertaking Shares on the matters referred to in Section
y2 until after the Expiration Date.
2.5. PURCHASE OF SECURITIES. Stockholder agrees that, during the period
from the date of this Undertaking through the Expiration Date, the total
voting rights of Stockholder in USDATA shall not be increased in any way
and accordingly Stockholder shall not purchase or acquire any USDATA shares
and shall not exercise any rights, options or warrants to purchase any
shares of USDATA, whether or not such rights, options or warrants are Owned
by the Stockholder as of the date hereof or are acquired or received by
Stockholder during the period from the date of this Undertaking through the
Expiration Date.
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3. TERMINATION FEE. If an Acquisition Transaction is consummated on or before
the Expiration Date, Stockholder shall pay to Tecnomatix, no later than two
business days after the consummation of such Acquisition Transaction, a
nonrefundable cash fee as follows:
3.1. In the event that the aggregate value of the consideration received or
to be received by the stockholders of USDATA in connection with such
Acquisition Transaction (including pursuant to any liquidation of USDATA
following consummation of an Acquisition Transaction) shall not exceed the
Liquidation Preference Amount (as defined below), then Stockholder shall
pay Tecnomatix an amount equal to 100% of the difference between (i) the
aggregate value of the consideration received or to be received by the
Stockholder in connection with such Acquisition Transaction (including
pursuant to any liquidation of USDATA following consummation of an
Acquisition Transaction) and (ii) the aggregate value of the consideration
to be received by the Stockholder in connection with the Transaction under
the Asset Purchase Agreement (including pursuant to any liquidation of
USDATA following consummation of the Asset Purchase Agreement).
3.2. In the event that the aggregate value of the consideration received or
to be received by the stockholders of USDATA in connection with such
Acquisition Transaction (including pursuant to any liquidation of USDATA
following consummation of an Acquisition Transaction) shall exceed the
Liquidation Preference Amount, then Stockholder shall pay Tecnomatix an
amount equal to 75% of the difference between (i) the aggregate value of
the consideration received or to be received by the Stockholder in
connection with such Acquisition Transaction (including pursuant to any
liquidation of USDATA following consummation of an Acquisition Transaction)
and (ii) the aggregate value of the consideration to be received by the
Stockholder in connection with the Transaction under the Asset Purchase
Agreement (including pursuant to any liquidation of USDATA following
consummation of the Asset Purchase Agreement).
3.3. If the consideration to be offered, paid or received pursuant to an
Acquisition Transaction shall be other than cash, the value of such
consideration shall be determined in good faith by an independent,
nationally recognized investment banking firm jointly selected by
Stockholder and Tecnomatix, which determination shall be conclusive for all
purposes of this Undertaking.
3.4. For the purpose of this Undertaking, the "Liquidation Preference
Amount" shall mean the aggregate liquidation preference amounts payable or
attributable with respect to, or by virtue of holding of, all the issued
and outstanding Series C-1 Preferred Stock and Series C-2 Preferred Stock
of USDATA that are either issued and outstanding as of the date hereof or
are issuable upon exercise of all outstanding rights, options or warrants
to purchase any such Series C-1 Preferred Stock and Series C-2 Preferred
Stock, including all accrued but unpaid dividends and interest on all such
Series C-1 Preferred Stock and Series C-2 Preferred Stock, all as set forth
in the Certificate of Designation for Series C-1 Preferred Stock and Series
C-2 Preferred Stock of USDATA, as in effect on the date hereof. Stockholder
represents and warrants that as of the date hereof, the Liquidation
Preference Amount is approximately US$18,200,000.
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4. WAIVER OF APPRAISAL RIGHTS. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Transaction.
5. NO SOLICITATION. Stockholder agrees that, during the period from the date of
this Undertaking through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that its affiliates, officers,
directors, partners, principals, employees, representatives and agents do not,
directly or indirectly: (a) solicit, initiate, encourage (including by way of
furnishing information) or take any other action to facilitate the making of any
Acquisition Proposal or agree to endorse any Acquisition Proposal or (b)
propose, enter into or participate in any discussions or negotiations regarding
an Acquisition Proposal or furnish to another Person any information with
respect to an Acquisition Proposal, or otherwise cooperate in any way with, or
assist, participate in, facilitate or encourage, any action or matter relating
to an Acquisition Proposal. Stockholder shall immediately cease and cause to be
terminated, and Stockholder shall ensure that its affiliates, officers,
directors, partners, principals, employees, representatives and agents
immediately cease and cause to be terminated, any existing discussions with any
Person that relate to any Acquisition Proposal. If Stockholder or any of its
officers, directors, partners, principals, employees, representatives and agents
receives an Acquisition Proposal, then Stockholder shall promptly inform
Tecnomatix of the material terms and conditions of such proposal and the
identity of the Person making it and shall keep Tecnomatix fully informed of any
and all material developments of any such Acquisition Proposal and of all steps
it is taking in response to such Acquisition Proposal.
6. PROHIBITION ON OWNERSHIP OF TECNOMATIX SECURITIES. Stockholder shall not
obtain or otherwise acquire Ownership of any securities of Tecnomatix during the
period commencing on the date of this Undertaking and ending on the Expiration
Date.
7. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby represents
and warrants to Tecnomatix as follows:
7.1. AUTHORIZATION, ETC. Stockholder has the corporate power, authority and
capacity to execute and deliver this Undertaking and to perform its
obligations hereunder. This Undertaking has been duly authorized and
approved by Stockholder and has been duly executed and delivered by
Stockholder and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies, and (iii) laws
relating to fiduciary duties of directors, officer and any other persons.
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7.2. NO CONFLICTS OR CONSENTS.
7.2.1. The execution and delivery of this Undertaking by Stockholder
does not, and the performance of this Undertaking by Stockholder will
not: (A) conflict with or violate any law applicable to Stockholder or
by which it is or may be bound or affected; or (B) result in or
constitute (with or without notice or lapse of time) any breach of or
default under, or give to any other Person (with or without notice or
lapse of time) any right of termination, amendment, acceleration or
cancellation of, or result (with or without notice or lapse of time)
in the creation of any encumbrance on any of the Subject Securities
pursuant to, any agreement, written or oral, to which Stockholder is a
party or by which Stockholder or any of its affiliates is or may be
bound or affected.
7.2.2. The execution and delivery of this Undertaking by Stockholder
does not, and the performance of this Undertaking by Stockholder will
not, require any consent, approval, authorization of or filing with
any Person or any governmental or regulatory authority. Stockholder
hereby gives any consents or waivers that are reasonably required for
the consummation of the Transaction under the terms of any agreement
to which such Stockholder is a party or pursuant to any rights such
Stockholder may have, except for its voting rights as a stockholder of
USDATA and in such capacity.
7.3. NO OWNERSHIP OF SECURITIES OF TECNOMATIX. Stockholder does not Own any
shares or other securities of Tecnomatix.
7.4. ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Undertaking are accurate in all respects as of the date
of this Undertaking, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of
the consummation of the Transaction as if made on that date.
8. ADDITIONAL COVENANTS OF STOCKHOLDER.
8.1. INDEMNIFICATION AGREEMENT. Stockholder undertakes that at the Closing
of the Asset Purchase Agreement, Stockholder shall duly execute and deliver
to Tecnomatix the Indemnification Agreement in the form of Exhibit 7.3.8
attached to the Asset Purchase Agreement.
8.2. FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be
executed and delivered, such additional documents and shall take such
further actions, as Tecnomatix may reasonably request for the purpose of
carrying out and furthering the intent of this Undertaking.
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8.3. LEGEND. Immediately after the execution of this Undertaking (and from
time to time upon the acquisition by Stockholder of Ownership of any USDATA
Shares prior to the Expiration Date), Stockholder shall ensure that each
certificate evidencing any outstanding USDATA Shares or other securities of
USDATA Owned by Stockholder bears a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE UNDERTAKING DATED AS OF JULY 29, 2003,
BETWEEN STOCKHOLDER AND TECNOMATIX AS IT MAY BE AMENDED, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
9. MISCELLANEOUS.
9.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder
in this Undertaking shall survive (i) the consummation of the Transaction,
(ii) any termination of the Asset Purchase Agreement, and (iii) the
Expiration Date.
9.2. EXPENSES. Except as otherwise provided in the Asset Purchase Agreement
or in this Undertaking, all costs and expenses incurred in connection with
the transactions contemplated by this Undertaking shall be paid by the
party incurring such costs and expenses.
9.3. NOTICES. Any notice or other communication required or permitted to be
delivered to Tecnomatix or Stockholder under this Undertaking shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery
service or by facsimile) to the address or facsimile telephone number set
forth beneath the respective names of Tecnomatix or Stockholder below (or
to such other address or facsimile telephone number as Tecnomatix or
Stockholder shall have specified in a written notice given to the other):
If to Stockholder to:
SCP Private Equity Partners II, L.P.
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000, XXX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000.000.0000
with a copy to:
Xxxx Xxxxx LLP
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxxxxxxx 00000, XXX
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
Fax: 000 000-0000
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If to Tecnomatix to:
Delta House, 00 Xxxxxxx Xxx.
Herzeliya 46733, Israel
Attention: Legal Counsel
Facsimile: 000-0-0000000
with a copy to:
Meitar, Xxxxxxxxx, Geva & Co.
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxx Xxx, Xxxxxx 00000
Attention: Xxx Xxxxxxx, Adv.
Facsimile: 972-3-610-3111
9.4. SEVERABILITY. In the event that any provision of this Undertaking, or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remainder of this
Undertaking will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of Stockholder and Tecnomatix. Stockholder
further agrees to replace such void or unenforceable provision of this
Undertaking with a valid and enforceable provision that will achieve, to
the fullest extent possible, the economic, business and other purposes of
such void or unenforceable provision.
9.5. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARY. This Undertaking (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof and (ii) is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
9.6. ASSIGNABILITY. Except as provided herein, neither this Undertaking nor
any of the interests or obligations hereunder may be assigned or delegated
by either party, and any attempted or purported assignment or delegation of
any of such interests or obligations shall be void. Subject to the
preceding sentence, this Undertaking shall be binding upon Stockholder and
his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Tecnomatix and its successors
and assigns. Without limiting any of the restrictions set forth in Section
y2 or elsewhere in this Undertaking, this Undertaking shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Undertaking, express or implied, is intended to or shall confer upon any
Person other than Tecnomatix any right, benefit or remedy of any nature
whatsoever under this Undertaking.
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9.7. SPECIFIC PERFORMANCE. The parties hereto hereby acknowledge and agree
that the failure of any party to this Undertaking to perform its agreements
and covenants hereunder will cause irreparable injury to the other party to
this Undertaking for which damages, even if available, will not be an
adequate remedy. Accordingly, each of the parties hereto hereby consents to
the granting of equitable relief (including specific performance and
injunctive relief) by any court of competent jurisdiction to enforce any
party's obligations hereunder. The parties further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
9.8. NON-EXCLUSIVITY. The rights and remedies of Tecnomatix under this
Undertaking are not exclusive of or limited by any other rights or remedies
that it may have, whether at law, in equity, by contract or otherwise, all
of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Tecnomatix under
this Undertaking, and the obligations and liabilities of Stockholder under
this Undertaking, are in addition to their respective rights, remedies,
obligations and liabilities under common law requirements and under all
applicable statutes, rules and regulations.
9.9. GOVERNING LAW; VENUE.
9.9.1. This Undertaking shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of law; PROVIDED, HOWEVER, that any matter involving the
internal corporate affairs of Tecnomatix or any party hereto shall be
governed by the provisions of the jurisdiction of its incorporation.
9.9.2. In any action between Stockholder and Tecnomatix arising out of
or relating to any provision of this Undertaking: (A) Stockholder
irrevocably and unconditionally consents and submits to the
jurisdiction and venue of either the state and federal courts located
in the State of Delaware.
9.10. CAPTIONS. The captions contained in this Undertaking are for
convenience of reference only, shall not be deemed to be a part of this
Undertaking and shall not be referred to in connection with the
construction or interpretation of this Undertaking.
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9.11. WAIVER AND AMENDMENT. No failure on the part of Tecnomatix to
exercise any power, right, privilege or remedy under this Undertaking, and
no delay on the part of Tecnomatix in exercising any power, right,
privilege or remedy under this Undertaking, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise
of any such power, right, privilege or remedy shall preclude any other or
further exercise thereof or of any other power, right, privilege or remedy.
Tecnomatix shall not be deemed to have waived any claim available to
Tecnomatix arising out of this Undertaking, or any power, right, privilege
or remedy of Tecnomatix under this Undertaking, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Tecnomatix, and
any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given. This Undertaking may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
9.12. CONSTRUCTION.
9.12.1. For purposes of this Undertaking, whenever the context
requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter
genders; and the neuter gender shall include masculine and feminine
genders.
9.12.2. Stockholder agrees that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this
Undertaking.
9.12.3. As used in this Undertaking, the words "include" and
"including," and variations thereof, shall not be deemed to be terms
of limitation, but rather shall be deemed to be followed by the words
"without limitation."
9.12.4. Except as otherwise indicated, all references in this
Undertaking to "Sections" are intended to refer to Sections of this
Undertaking.
9.13. COUNTERPARTS. This Undertaking and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that both parties need not execute the same counterpart.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, Xxxxxxxxxxx has caused this Undertaking to be executed
as of the date first written above.
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:_________________________________________
Subject Securities:
Shares of Common Stock: 1,649,114
Shares of Series A Preferred Stock: 50,000
Shares of Series B Preferred Stock: 265,000
Shares of Series C-1 Preferred Stock: 112,500
Shares of Series C-2 Preferred Stock: none
Warrants to purchase shares of Series A Preferred Stock: none
Warrants to purchase shares of Series B Preferred Stock: none
Warrants to purchase shares of Series C-1 Preferred Stock: none
Warrants to purchase shares of Series C-2 Preferred Stock: 104,375
Acknowledged and agreed to by:
USDATA Corporation
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
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ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
USDATA CORPORATION
The undersigned stockholder of USDATA Corporation, a Delaware corporation
("USDATA"), hereby irrevocably appoints the members of the Board of Directors of
Tecnomatix Technologies Ltd., a company incorporated in Israel ("TECNOMATIX"),
and each of them, or any other designee of Tecnomatix as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting rights (to the full extent that
the undersigned is entitled to do so) with respect to all of the issued and
outstanding shares of capital stock of USDATA that now are owned of record by
the undersigned and are listed on the signature page of this proxy
(collectively, the "SHARES"), in accordance with the terms of this Irrevocable
Proxy. Upon the undersigned's execution of this Irrevocable Proxy, any and all
prior proxies given by the undersigned with respect to the voting of any Shares
on the matters referred to in the third full paragraph of this Irrevocable Proxy
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to such matters until after the Expiration Date (as defined
below).
This Irrevocable Proxy is irrevocable, is coupled with an interest, and is
granted in consideration of USDATA entering into that certain Asset Purchase
Agreement (the "ASSET PURCHASE AGREEMENT") by and among USDATA, Tecnomatix and
the other parties named therein, which Asset Purchase Agreement provides for the
acquisition of certain assets of USDATA by Tecnomatix (the "TRANSACTION"). As
used herein, the term "EXPIRATION DATE" shall mean the earlier to occur of (i)
such date and time as the closing of the Transaction shall have been completed
in accordance with the terms and provisions of the Asset Purchase Agreement, and
(ii) the date that is 9 months after the termination of the Asset Purchase
Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents), at every annual, special or adjourned meeting of the stockholders of
USDATA and in every written consent in lieu of such meeting, in favor of
adoption of the Transaction, the Asset Purchase Agreement and any related
transaction and any proposal or action which would, or could reasonably be
expected to, facilitate the Transaction and against any Acquisition Transaction
or any proposal or action presented to a stockholder vote which would or could
reasonably be expected to hinder, defeat or disturb the Transaction or
facilitate an Acquisition Transaction. "Acquisition Transaction" means, other
than the Transaction, any acquisition or purchase, grant of exclusive license or
a similar right or other disposition of, a substantial amount of the assets of,
or any equity interest in USDATA, or any merger, consolidation, business
combination, amalgamation, recapitalization, liquidation, dissolution, or
similar transaction involving USDATA or any of its subsidiaries or a substantial
amount of the Assets to be purchased by Tecnomatix in connection with the Asset
Purchase Agreement.
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The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
All authority herein conferred and any obligation of the undersigned
hereunder shall be binding upon the successors and assigns of the undersigned.
[SIGNATURE PAGE FOLLOWS]
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Execution Form
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: July 29, 2003
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:_________________________________________
Xxxxxx owned of record by the Stockholder as of the date hereof that are subject
to this proxy:
Shares of Common Stock: 824,558
Shares of Series A Preferred Stock: 25,000
Shares of Series B Preferred Stock: 132,500
Shares of Series C-1 Preferred Stock: 56,250
