1
EXHIBIT 10.5
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (this
"Agreement") is made as of this 12th day of September, 2000, by and among USDATA
Corporation, a Delaware corporation (the "Company"), the Investors listed on
Schedule A hereto (each, an "Investor" and collectively, the "Investors") and,
for the limited purpose of agreeing to Sections 2, 3 and 5 hereof, Safeguard
Scientifics, Inc. ("Safeguard"). This Agreement shall become effective as of the
Closing (as defined therein) of the transactions contemplated by that certain
Securities Purchase Agreement dated as of even date herewith (the "Purchase
Agreement") by and among the Company, eMake Corporation and the Investors named
therein.
RECITALS
WHEREAS, the Company and the Investor named therein are
parties to the Stock Purchase Agreement (the "Original Purchase Agreement"),
dated August 6, 1999;
WHEREAS, the Company, the Investor named therein and Safeguard
are parties to the Investors' Rights Agreement (the "Original Agreement"), dated
August 6, 1999;
WHEREAS, the execution of this Agreement and the amendment and
restatement of the Original Agreement pursuant hereto is a condition precedent
to the Closing of the Purchase Agreement; and
WHEREAS, in order to induce the Investors named therein to
enter into the Purchase Agreement and to consummate the transactions
contemplated thereby, the Company, the Investors and Safeguard hereby agree that
this Agreement shall amend, restate and supercede the Original Agreement and
shall govern the rights of the Investors to cause the Company to register shares
of Common Stock and certain other matters as set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) the term "Act" means the Securities Act of 1933, as
amended;
(b) the term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.12 hereof;
2
(c) the term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended;
(d) the terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(e) the term "Registrable Securities" means (i) the Common
Stock issued and sold to the Safeguard Delaware, Inc. pursuant to the Original
Purchase Agreement, the Common Stock issuable or issued upon conversion of the
Series A Preferred Stock issued and sold to Safeguard Delaware, Inc. pursuant to
the Original Purchase Agreement and the Common Stock issued or issuable upon
conversion of the Series B Preferred Stock issuable or issued under the Exchange
Agreements (as defined in the Purchase Agreement), and (ii) 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) above;
(f) the term "Common Stock" means shares of the Company's
Common Stock, par value $0.01 per share;
(g) the term "Series A Preferred Stock" means shares of the
Company's Series A Convertible Preferred Stock, par value $0.01 per share;
(h) the term "Series B Preferred Stock" means shares of the
Company's Series B Convertible Preferred Stock, par value $0.01 per share;
(i) the number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(j) the term "SEC" shall mean the Securities and Exchange
Commission;
(k) the term "Shelf Registration Period" shall have the
meaning set forth in Section 1.2(b) hereof; and
(l) the term "Shelf Registration Statement" shall mean a
"shelf" registration statement of the Company pursuant to the provisions of
Section 1.2 hereof which covers all of the Registrable Securities on Form S-3 or
on another appropriate form for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 under the Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case,
including the prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
2
3
1.2 SHELF REGISTRATION.
(a) Upon the request of the Holders of 25% of the Registrable
Securities then outstanding, the Company shall prepare and, not later than 30
days following such request, shall file with the SEC a Shelf Registration
Statement with respect to resales of the Registrable Securities from time to
time in accordance with the methods of distribution elected by the Holders of
the Registrable Securities and set forth in such Shelf Registration Statement
and thereafter shall use its best efforts to cause such Shelf Registration
Statement to be declared effective under the Act prior to 45 days following the
filing of the Shelf Registration Statement with the SEC. The Company shall
supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for the Shelf Registration Statement, if required by the Act, the 1934
Act or the SEC.
(b) The Company shall keep the Shelf Registration Statement
continuously effective under the Act in order to permit the prospectus forming a
part thereof to be usable by all Holders until the earliest of (i) the fifth
anniversary of the date hereof, (ii) the date as of which all Registrable
Securities have been transferred pursuant to Rule 144 under the Securities Act
(or any similar provision then in force), and (iii) such date as of which all
Registrable Securities have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period"). The Company shall: (i) subject to Section 1.2(c), prepare and file
with the SEC such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement continuously effective for the Shelf Registration Period; (ii) subject
to Section 1.2(c), cause the related prospectus to be supplemented by any
required supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Act; and (iii) comply in all
material respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or
such prospectus as so supplemented.
(c) The Company may suspend the use of the prospectus forming
a part of the Shelf Registration Statement for two periods not to exceed an
aggregate of 60 days in any twelve-month period for valid business reasons, to
be determined by the Company in its reasonable judgment (not including avoidance
of the Company's obligations hereunder), including, without limitation, the
acquisition or divestiture of assets, public filings with the SEC, pending
corporate developments and similar events. The Company shall provide written
notice to the Holders of any such suspension.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any securities
under the Act in connection with the public offering of such securities solely
for cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan, a registration on Form S-4 (or its
successor) relating to an offering of shares in connection with any acquisition
of any entity or business, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities or exercise of warrants which are
also being registered) and the Registrable Securities have not theretofore been
included in a Shelf
3
4
Registration Statement pursuant to Section 1.2 that remains effective, the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within 20 days after
mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered. The
obligations of the Company under this Section 1.3 with respect to any particular
offering may be waived at any time upon the written consent of Holders a
majority of the outstanding Registrable Securities. The right of any Holder to
request inclusion of Registrable Securities held by it in any registration
pursuant to this Section 1.3 shall terminate if all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder are
eligible to be sold under Rule 144 under the Act during any 90-day period. In
any event, such right shall terminate on the fifth anniversary of the date
hereof.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, in a reasonable amount of time and as promptly as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and in the case of a
registration under Section 1.3 or 1.14 hereof, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to 120 days or, if earlier,
until the distribution contemplated in such registration statement has been
completed; provided, however, that such 120-day period shall be extended for a
period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Company;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
(c) furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them;
(d) use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions in
which it is not, at the time, so qualified or otherwise subject itself to
general taxation in any such states or jurisdictions;
(e) in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing
4
5
underwriter of such offering, it being understood and agreed that each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(f) notify each Holder of Registrable Securities covered by
such registration statement in writing at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(i) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of any such registration statement or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for offer or sale in any jurisdiction at the
earliest possible time; and
(j) cooperate in all necessary respects with (A) counsel in
preparation of the customary legal opinions and (B) accountants in preparation
of the customary comfort letters.
1.5 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.6 EXPENSES OF SHELF REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements, which shall not exceed $25,000, of one
counsel for the selling Holders (to be selected by the Holders holding a
majority of the Registrable Securities) shall be borne and paid by the Company.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements, which shall not exceed $25,000, of one
counsel for the selling Holders (to be selected by the holders of a majority of
the Registrable Securities to be
5
6
registered), but excluding underwriting discounts and commissions relating to
Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock under Section
1.3, the Company shall not be required to include any of the Holders' securities
in such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters), and then only in such quantity as
the underwriters determine in their sole discretion will not, jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by stockholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering. The securities so included shall be apportioned (a)
first to Holders selling Registrable Securities pro rata according to the total
amount of Registrable Securities entitled to be included therein owned by each
selling Holder and (b) second, to the extent determined by the underwriters to
be compatible with the offering, to other stockholders.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) to the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, promptly following delivery of an invoice for such amounts
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 1.10(a) shall not apply to: (x) amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company
6
7
(which consent shall not be unreasonably withheld); (y) any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, underwriter or controlling person; (z) any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
such Holder's or underwriter's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto;
(b) to the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 1.10(b) exceed the gross
proceeds from the offering received by such Holder;
(c) promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10;
7
8
(d) if the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. In no event shall any contribution by a Holder under this
subsection 1.10(d) exceed the gross proceeds from the offering received by such
Holder. In no event shall a person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) be entitled
to contribution from any person or entity who was not guilty of fraudulent
misrepresentation;
(e) notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control; and
(f) the obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.(a) The
Company shall cause its Common Stock to continue to be registered under Sections
12(b) or 12(g) of the 1934 Act, shall comply in all respects with its reporting
and filing obligations under the 1934 Act, and shall not take any action or file
any document (whether or not permitted by the 1934 Act or the rules thereunder)
to terminate or suspend such registration or to terminate or suspend its
reporting and filing obligations under the 1934 Act. The Company shall take all
action necessary to continue the listing or trading of its Common Stock on any
national securities exchange or the Automated Quotation System of the National
Association of Securities Dealers on which Common Stock is listed or traded, and
shall comply in all material respects with its reporting, filing and other
obligations under the bylaws or rules of such exchange or association. The
Company will furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Act and the
1934 Act or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 under the Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents as are
filed by the Company under the 1934 Act, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
8
9
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to (a) any partner
or retired partner of any holder which is a partnership, (b) any family member
or trust for the benefit of any individual holder, or (c) any transferee or
assignee who, after such assignment or transfer, holds at least 15% of the then
outstanding Registrable Securities, provided: (i) the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; (ii) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement; and (iii) such assignment shall be effective only
if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder to interfere with or otherwise limit a Holder's
registration rights under this Agreement.
1.14 REQUEST FOR REGISTRATION.
(a) If the Company shall at any time during the Shelf
Registration Period be ineligible to use Form S-3 or Form S-3 shall be for any
reason unavailable to register the Registrable Securities under the rules and
regulation of the SEC, and the duration of such ineligibility or unavailability
exceeds or is expected to exceed 60 days, the Holders shall have the right by a
written request from the Holders of a majority of the Registrable Securities
then outstanding to the Company, to require the Company to file a registration
statement under the Act covering the resales of at least 25% of the Registrable
Securities then outstanding (or a lesser percent if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed
$10,000,000), but in no event will the aggregate value of the shares to be
registered under such registration statement be less than $500,000. Upon its
receipt of such a written request, the Company shall given written notice of
such request to all Holders within ten days thereof. The Company shall file as
soon as practicable, and in any event within 90 days of the receipt of such
request, a registration statement under the Act covering resales of all
Registrable Securities which Holders request to be registered, subject to the
limitations of subsection 1.14(b).
(b) If the Holders initiating the registration request
hereunder (the "Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection
1.14(a) and the Company shall include such information in the written notice
referred to in subsection 1.14(a). The managing underwriter shall be selected by
a majority in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing
9
10
to distribute their securities through such underwriting shall (together with
the Company as provided in subsection 1.4(e)) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this Section 1.14, if
the underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) The Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 1.14(a) after
the Company has effected two registrations pursuant to this Section 1.14(a) and
such registrations have been declared or ordered effective; provided, however,
that a registration will not count as a registration pursuant to this Section
1.14(a) unless the Holders requesting registration are able to register the
offering and sale of at least 50% of the shares of Registrable Securities that
they have requested be included in such registration.
2. RIGHTS OFFERING.
2.1 RIGHTS.
(a) As used herein, the term "Subsidiary" shall mean, with
respect to the Company, any direct or indirect subsidiary of the Company more
than 50% of the outstanding voting securities of which are owned directly or
indirectly by the Company. The Company shall, upon receipt of a Rights Offering
Notice (as defined below), cause the Subsidiary designated as the "Relevant
Subsidiary" in connection therewith (the "Relevant Subsidiary"), to grant to the
holders of the common stock of Safeguard rights (the "Rights") to purchase from
such Relevant Subsidiary such number of shares of such Relevant Subsidiary's
common stock as determined by Safeguard up to a maximum of 40% of the sum of (i)
all issued shares of common stock of such Relevant Subsidiary, and (ii) all
shares of common stock of such Relevant Subsidiary subject to issuance pursuant
to options, warrants or other agreements, plans, instruments or understandings,
all as of the effective date of the registration statement relating to such
Rights (the "Rights Registration Statement"). The Rights shall be issued in an
offering (the "Rights Offering") pursuant to the Rights Registration Statement,
shall be exercisable for a period of no greater than 45 days after the
commencement of the Rights Offering and shall be transferable by the holder
thereof during that period. The Company shall cause the Relevant Subsidiary to
engage an investment banking firm selected by the Company, subject to the
reasonable approval of Safeguard, which firm shall underwrite, on a standby,
firm commitment basis, any portion of the offered common stock of the Relevant
Subsidiary not purchased through the exercise of Rights. The Company shall also
engage legal counsel selected by Safeguard, subject to the reasonable approval
of a majority of the Board of Directors of the Company, which counsel shall
represent the Relevant Subsidiary in connection with the conduct of the Rights
Offering. The exercise price of the Rights shall be determined by negotiation
among the Relevant Subsidiary, the underwriters and the selling stockholders, if
any. Prior to the commencement of the Rights Offering, the Company shall use its
best efforts to cause (and shall cause the Relevant Subsidiary
10
11
to use its best efforts to cause) any holder of more than 1% of the Relevant
Subsidiary's common stock (or rights to acquire more than 1% of the Relevant
Subsidiary's common stock) and the Relevant Subsidiary's officers and directors
to execute and deliver to the underwriter of the Rights Offering a market
stand-off agreement. Such market stand-off agreement shall provide that, during
the period of duration specified by the Relevant Subsidiary and the underwriter
of common stock or other securities of the Relevant Subsidiary following the
effective date of the Rights Registration Statement, such persons shall not, to
the extent requested by the Relevant Subsidiary and such underwriter, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Relevant Subsidiary held by them at any time during such
period except common stock included in such Rights Registration Statement.
(b) Safeguard may initiate a Rights Offering with respect to
any Subsidiary by giving written notice to the Company (a "Rights Offering
Notice") at any time during the Rights Exclusivity Period (as hereinafter
defined) at such time as the total market value of such Subsidiary is at least
$35,000,000, which determination shall be made in good faith, upon request by
Safeguard from time to time, by the Board with the assistance and advice of such
experts or consultants as the Board may choose to retain, if any. The
obligations of the Company pursuant to this Section 2.1 shall commence on the
date hereof and expire on August 6, 2004 (such period, the "Rights Exclusivity
Period"), unless a registration statement relating to a Rights Offering has been
filed with the SEC by such date, in which case the Rights covered by such
Registration Statement shall not expire until 150 days after the date such
filing was made.
(c) The Company agrees that it will not (i) sell or otherwise
transfer any of the capital stock of any Subsidiary owned by it, (ii) permit any
Subsidiary to merge or consolidate with any other person or entity other than
the Company or another Subsidiary or sell, lease or otherwise transfer any
substantial portion of any Subsidiary's assets, or (iii) permit any Subsidiary
to undertake any registration of any of its securities under the Act or the 1934
Act other than pursuant to this Section 2.1, in any case, prior to the earlier
of the expiration of the Rights Exclusivity Period or the completion of a Rights
Offering with respect to such Subsidiary, except with the consent of Safeguard;
provided, however, that this subsection shall not apply to the registration
rights provided under that certain Investors' Rights Agreement, dated as of the
date hereof, by and among eMake Corporation and the other parties thereto.
(d) Upon closing of a Rights Offering with respect to any
Subsidiary, Safeguard's right to require such Subsidiary to conduct any further
Rights Offerings under this Section 2 and any Directed Shares Offering under
Section 3 below shall terminate.
2.2 SPLIT. After Safeguard has notified the Company of its
intention to commence a Rights Offering, the Company shall, prior to the filing
of the Rights Registration Statement with respect thereto as provided
hereinafter (or at such earlier date as agreed to by the Company and Safeguard),
take all such actions as shall be necessary to cause the Relevant Subsidiary to
cause a split of its authorized common stock in such ratio as Safeguard shall
determine. All references to share amounts in this Agreement other than as
specifically noted shall be deemed to refer to share amounts prior to such
split.
11
12
2.3 REGISTRATION STATEMENT. Upon notice by Safeguard to the
Company of its intention to commence a Rights Offering, the Company shall cause
the Relevant Subsidiary to promptly prepare a Rights Registration Statement to
register under the Act, the Rights and the shares of the common stock of the
Relevant Subsidiary to be acquired upon exercise of the Rights (the "Rights
Shares"). The Company covenants that such Rights Registration Statement and the
prospectus included therein shall be in form reasonably satisfactory to
Safeguard, shall comply in all material respects with the Act and the rules and
regulations of the SEC promulgated thereunder, shall not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and shall conform with
the provisions of Section 1.4 hereof.
2.4 REGISTRATION PROCESS. The Company shall use its best
efforts to cause the Relevant Subsidiary to cause the Rights Registration
Statement to be filed with the SEC and to become effective as promptly as
practicable in accordance with Section 1.4 hereof. The Company shall cause the
Relevant Subsidiary to prepare and file with the SEC, promptly upon Safeguard's
request, any amendments or supplements to the Rights Registration Statement or
the related prospectus that, in Safeguard's opinion, may be necessary or
advisable in connection with the Rights Offering, subject to the reasonable
approval of the Relevant Subsidiary and its counsel. The Company shall not
permit the Relevant Subsidiary to file any amendment or supplement to the Rights
Registration Statement or the related prospectus unless (A) it has furnished
Safeguard with a copy of such amendment or supplement a reasonable time prior to
filing and (B) Safeguard has not reasonably objected to such amendment or
supplement by notice to the Company within 10 days of receipt of such copy. The
Company shall not issue (and shall not permit the Relevant Subsidiary to issue)
any advertisement, press release, mailing or other solicitation material of
which Safeguard reasonably disapproves by prompt written notice to the Company
after receiving reasonable notice thereof. The Company shall cause the Relevant
Subsidiary to comply with the Act and the rules and regulations thereunder in
connection with the Rights Offering and, until the termination of the Rights
Offering, the Company shall cause the Relevant Subsidiary to use its best
efforts to qualify the Rights Shares under the securities laws of all
jurisdictions in which qualification is required and there are holders of
Safeguard common stock and to continue such qualifications in effect during the
exercise period of the Rights. At the time of mailing the prospectus relating to
the Rights Offering and at the time of the closing of the Rights Offering,
Safeguard shall be entitled to receive (A) from the Company and the Relevant
Subsidiary such certificates and documents evidencing compliance with such
representations and warranties of the Company and the Relevant Subsidiary as
Safeguard shall reasonably request of the Company, and (B) from the counsel and
independent accountants of the Company and the Relevant Subsidiary such opinions
and documents as Safeguard may reasonably request thereof as if it were
applicable to the Rights Offering.
2.5 USE OF PROCEEDS. The Company shall cause the Relevant
Subsidiary to apply all proceeds of the Rights Offering first to the payment of
the expenses of the Rights Offering and thereafter to general working capital
purposes or such other purposes as shall be described in the related prospectus
and agreed to by Safeguard.
12
13
2.6 REGISTRATION SERVICES.
(a) Services. Safeguard shall diligently and in a timely
fashion assist the Company and the Relevant Subsidiary in structuring the Rights
Offering, in preparing the necessary registration statement and related
disclosure documentation, in clearing the Rights Offering with the SEC and
applicable state securities authorities and shall provide such other services
and assistance in connection with the Rights Offering as the Company or the
Relevant Subsidiary shall reasonably request. Nothing contained herein shall
require Safeguard to provide to the Company or the Relevant Subsidiary any
services or assistance which, if rendered by Safeguard, would require Safeguard
to register as a broker-dealer under Section 15 of the Exchange Act or any state
securities laws, or as an investment adviser under the Investment Advisor Act of
1940, as amended.
(b) Working Group. The Company shall cause the counsel,
auditors, employees, officers and consultants of the Company and the Relevant
Subsidiary to render such assistance in consummating the Rights Offering, at the
expense of the Company, as is customary in the consummation by a company of its
initial public offering. In addition, in rendering services under this Section
2.6, Safeguard may engage special legal counsel, one or more rights, registrar
and transfer agents, and such other consultants as Safeguard may deem necessary
or desirable in connection with the Rights Offering, subject to the reasonable
approval of the Company, the expenses of which shall be paid by the Company and
which are not included in the reimbursement described in Subsection 2.6(c)
below. In addition, Safeguard may require the Relevant Subsidiary to engage a
registered broker-dealer of Safeguard's designation, subject to the reasonable
approval of the Company, to provide such services in connection with the Rights
Offering as Safeguard may deem reasonably necessary or desirable, including
without limitation, to effect or underwrite the offering of the Rights or the
Rights Shares in states in which applicable state laws require that a registered
broker-dealer effect such offering.
(c) Expenses. The Company shall bear all reasonable costs and
expenses of the Rights Offering, including, but not limited to, the Relevant
Subsidiary's printing, legal and accounting fees and expenses, SEC and NASD
filing fees and "Blue Sky" fees and expenses; provided, however, that the
Company shall have no obligation to pay or otherwise bear any portion of the
underwriters' discounts attributable to the Rights Shares not being offered and
sold by the Relevant Subsidiary, or the fees and expenses of counsel for the
selling holders of Rights Shares in connection with the registration of the
Rights Shares if other than counsel to the Relevant Subsidiary. The Company
shall reimburse Safeguard for its internal expenses incurred under this Section
2 by payment of $50,000 on a nonaccountable basis, such payment to be made on
the earlier of the closing of the Rights Offering or 90 days after the
Registration Statement is filed.
2.7 INDEMNIFICATION. In connection with the Rights Offering:
(a) to the extent permitted by law, the Company will indemnify
and hold harmless Safeguard, any underwriter (as defined in the Act) for
Safeguard and each person, if any, who controls Safeguard or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
13
14
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company or the Relevant Subsidiary of the Act, the 1934 Act,
any state securities law or any rule or regulation promulgated under the Act,
the 1934 Act or any state securities law; and the Company will pay to Safeguard
and each underwriter or controlling person, promptly following delivery of an
invoice for such amounts incurred, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 2.7(a) shall not apply to: (x) amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld); (y) any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by Safeguard or the
underwriter or controlling person; (z) any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon Safeguard's or
the underwriter's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto;
(b) to the extent permitted by law, Safeguard will indemnify
and hold harmless the Relevant Subsidiary, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Relevant Subsidiary within the meaning of the Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by Safeguard expressly
for use in connection with such registration; and Safeguard will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 2.7(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
2.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of Safeguard, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 2.7(b) exceed the gross
public offering price of all such securities offered by Safeguard and sold
pursuant to such registration statement;
(c) promptly after receipt by an indemnified party under this
Section 2.7(c) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the
14
15
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.7;
(d) if the indemnification provided for in this Section 2.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. In no event shall any contribution by Safeguard under
this subsection 2.7(d) exceed the gross public offering price of all such
securities offered by Safeguard and sold pursuant to such registration
statement. In no event shall a person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) be entitled
to contribution from any person or entity who was not guilty of fraudulent
misrepresentation;
(e) notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control; and
(f) the obligations of the Company and Safeguard under this
Section 2.7 shall survive the completion of the Rights Offering.
3. SAFEGUARD SUBSCRIPTION OFFERING.
3.1 DIRECTED SHARES REGISTRATION. Safeguard shall have the
right to require the Company to cause any Subsidiary to file a registration
statement on Form S-1 for the registration of shares of the Subsidiary's common
stock pursuant to this Section 3 at such time as the total market value of such
Subsidiary is at least $35,000,000 (the "Safeguard Subscription
15
16
Offering"). Such registration statement shall register common stock (i)
sufficient in number to satisfy the Directed Shares requirement described below
and (ii) with an aggregate offering price, prior to underwriting discounts and
commissions, of at least $10,000,000. In connection with such Safeguard
Subscription Offering, the Company shall cause the applicable Subsidiary to
adjust its authorized shares as requested by Safeguard in order to facilitate
distribution of Directed Shares to its stockholders. The Company shall cause the
applicable Subsidiary to engage (i) an underwriter or underwriters selected by
Safeguard, subject to the approval of a majority of the Board of Directors of
the Company, and (ii) legal counsel selected by Safeguard, subject to the
reasonable approval of a majority of the Board of Directors of the Company,
which counsel shall represent the applicable Subsidiary in connection with the
conduct of the Safeguard Subscription Offering.
3.2 DIRECTED SHARES SUBSCRIPTION PROGRAM. In connection with
the Safeguard Subscription Offering, the Company shall cause the applicable
Subsidiary to:
(a) provide in the related underwriting agreement a right for
Safeguard to designate persons (the "Safeguard Designees") who may purchase from
the underwriter(s) shares of the Relevant Subsidiary's common stock (the
"Directed Shares") at the public offering price of such Subsidiary's common
stock in the Safeguard Subscription Offering (the "IPO Price"); and
(b) use its best efforts to cause such Subsidiary to cause the
underwriters of the Safeguard Subscription Offering to allow the Safeguard
Designees to purchase at the IPO Price that number of Directed Shares equal to
20% of the shares of common stock offered by such Subsidiary in such Safeguard
Subscription Offering. Upon closing of the Safeguard Subscription Offering with
respect to any Subsidiary and sale of the number of shares set forth in this
Section 3.2(b), Safeguard's right to require the Company to cause such
Subsidiary to conduct a Rights Offering pursuant to Section 2 above shall
terminate. The Company shall reimburse Safeguard for its internal expenses
incurred under this Section 3 by payment of $50,000 on a nonaccountable basis,
such payment to be made on the earlier of the closing of the Safeguard
Subscription Offering or 90 days after the Registration Statement is filed.
4. BOARD NOMINATIONS. As long as SCP Private Equity Partners
II, L.P. ("SCP") owns at least 5% of the outstanding Common Stock of the Company
(on an as-converted basis), SCP shall have the right to propose one director for
election to the Board of Directors of the Company and the Company shall take all
steps necessary to nominate such proposed director for election to the Company's
Board of Directors at its annual meeting of stockholders.
5. MISCELLANEOUS.
5.1 SUCCESSORS AND ASSIGNS. 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.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
16
17
5.2 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.
5.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 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.
5.5 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: (972)
000-0000), Attention: Xxxxxx X. Xxxxx, (ii) if to any Investor, at the address
beneath such Investor's name on Schedule A attached hereto, (iii) if to
Safeguard, at Safeguard Scientifics, Inc., 800 The Safeguard Building, 000 Xxxxx
Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000 (fax: (000) 000-0000), or (iv) if to an
Investor, at the address set forth under such Investor's name under on Schedule
A hereto.
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.
5.6 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.
5.7 AMENDMENTS AND WAIVERS. Any term other than Sections 2, 3
and 4 and the next sentence of this Agreement may be amended and the observance
of any term other than Sections 2, 3 and 4 and the next sentence of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of a majority of the shares of Registrable Securities then
outstanding. Sections 2 and 3 and this sentence of this Agreement may be amended
and the observance of any term of Sections 2 and 3 and this sentence of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Safeguard. Section 4 of this Agreement may be amended and the observance of
any term of Section 4 of this Agreement may be waived (either
17
18
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and SCP.
5.8 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.
5.9 AGGREGATION OF STOCK. All shares of securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
5.10 ENTIRE AGREEMENT. This Agreement (including the Schedules
and Exhibits hereto) amends, supercedes and replaces the Original Agreement
(including the Schedules and Exhibits thereto) in its entirety, and constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and thereof.
[Signature page follows.]
18
19
IN WITNESS WHEREOF, the parties have executed this Investors'
Rights Agreement as of the date first above written.
COMPANY:
USDATA CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: CFO
----------------------------------------
INVESTORS:
SAFEGUARD DELAWARE, INC.
By: /s/
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
SAFEGUARD 2000 CAPITAL, L.P.
By: Safeguard Delaware, Inc.,
its General Partner
By: /s/
-------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Manager
----------------------------------------
[SIGNATURE PAGE TO INVESTOR'S RIGHTS AGREEMENTS]
20
OTHER PARTY:
SAFEGUARD SCIENTIFICS, INC.
(solely for the limited purpose of agreeing to
Sections 2, 3 and 5 hereof)
By: /s/
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SIGNATURE PAGE TO INVESTOR'S RIGHTS AGREEMENTS]
21
SCHEDULE A
Investors
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
SCP Private Equity Partners II, L.P.,
Building 300
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
ATTN: General Partner