EXHIBIT 3
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-Interim
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
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: a manager
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