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EXHIBIT 4.7
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of March, 2001, by and among the Investors
listed on Schedule A hereto (each, an "Investor" and collectively, the
"Investors"), SCP Private Equity Partners II, L.P., a Delaware limited
partnership ("SCP"), and USDATA Corporation, a Delaware corporation (the
"Corporation").
RECITALS
WHEREAS, SCP has agreed to purchase from USDATA Corporation (the
"Company"), and the Company has agreed to issue and sell to SCP, shares of the
Company's Series C-1 Preferred Stock , $0.01 per share ("Series C-1 Stock"), and
to issue to SCP a warrant to purchase shares of the Company's Series C-2
Preferred Stock, $0.01 per share ("Series C-2 Stock"), pursuant to that certain
Series C Preferred Stock Purchase Agreement, dated as of even date herewith (the
"Purchase Agreement"), by and between the Company and SCP;
WHEREAS, each of the Investors is a holder of shares of the Company's
Common Stock, par value $0.01 per share ("Common Stock"), Series A Preferred
Stock, par value $0.01 per share ("Series A Stock"), and/or Series B Preferred
Stock, par value $0.01 per share ("Series B Stock") (The Common Stock, the
Series A Stock, and the Series B Stock are sometimes hereinafter referred to as
the "Capital Stock.");
WHEREAS, in order to induce SCP to enter into the Purchase Agreement
and to consummate the transactions contemplated thereby, the Investors have
agreed to grant SCP a right of first refusal with respect to transfers of their
Capital Stock;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS.
1.1 "INVESTOR STOCK" shall mean the shares of the Company's Common Stock
or Preferred Stock now owned or subsequently acquired by the Investors.
1.2 "PREFERRED STOCK" shall mean shares of the Series A Stock, the Series
B Stock, the Series C-1 Stock and Series C-2 Stock.
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1.3 "TRANSFER" shall include any sale, assignment, encumbrance,
hypothecation, pledge, conveyance in trust, gift, transfer by request,
devise or descent, or other transfer or disposition of any kind,
including, but not limited to, transfers to receivers, levying
creditors, trustees or receivers in bankruptcy proceedings or general
assignees for the benefit of creditors, whether voluntary or by
operation of law, directly or indirectly, of any of the Investor Stock.
2. TRANSFERS.
2.1 PROHIBITION ON TRANSFERS. Except as otherwise permitted herein, no
Investor shall Transfer any Investor Stock unless such Investor has
complied with all of the terms of this Agreement. Any purported
Transfer in violation of this Agreement shall be void and ineffective
and shall not operate to transfer any interest or title to the
purported transferee. Notwithstanding the foregoing, the prohibition on
Transfer shall not apply to (a) any existing pledge or hypothecation of
any Investor Stock, (b) any future pledge or hypothecation by an
Investor of its Investor Stock if, in the case of such future pledge or
hypothecation, the proposed pledgee or beneficiary of the hypothecation
agrees in writing to be bound by the terms of this Agreement, or (c)
one or more sales pursuant to Rule 144 of the Rules and Regulations
promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, if the number of shares sold during
any three-month period is not greater than one percent of the
outstanding shares of the Company's Common Stock at the commencement of
such three-month period.
2.2 NOTICE OF TRANSFER. If an Investor proposes to Transfer any shares of
Investor Stock pursuant to a bona fide offer, then the Investor shall
promptly give written notice (the "Notice") to SCP at least fifteen
(15) days prior to the closing of such Transfer. The Notice shall
describe in reasonable detail the proposed Transfer including, without
limitation, the number of shares of Investor Stock to be transferred,
the nature of such Transfer, the consideration to be paid, and the name
and address of each prospective purchaser or transferee, and shall
include a copy of the bona fide offer.
2.3 RIGHT OF FIRST REFUSAL. SCP shall have the right, exercisable upon
written notice to the Investor (the "Exercise Notice") within five (5)
days after the receipt of the Notice, to purchase the Investor Stock
subject to the Notice and on the same terms and conditions as set forth
therein. SCP shall effect the purchase of the Investor Stock, including
payment of the purchase price, not more than ten (10) days after
delivery of the Exercise Notice, and at such time the Investor shall
deliver to SCP the certificate(s) representing the Investor Stock to be
purchased by SCP, each certificate to be properly endorsed for
transfer. In the event that SCP shall not elect to exercise its right
of first refusal with respect to all of the offered Investor Stock, the
Investor shall be permitted to Transfer the Investor Stock to the bona
fide transferee on terms no less favorable to the Investor than the
terms provided for in the bona fide offer. In the event that such
Transfer to the bona fide transferee shall not be effectuated within
sixty (60) days after delivery of the Notice to SCP, any proposed
Transfer thereafter by the Investor shall become subject to the terms
of this Agreement.
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3. LEGEND.
3.1 Each certificate representing shares of Investor Stock now or
hereafter owned by the Investors shall be endorsed with the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A RIGHT OF FIRST REFUSAL BY AND BETWEEN THE
STOCKHOLDER, THE COMPANY AND CERTAIN HOLDERS OF STOCK OF THE
COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE SECRETARY OF THE COMPANY."
3.2 The Investors agree that the Company may instruct its transfer agent
to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in Section 3.1 above to
enforce the provisions of this Agreement and the Company agrees to
promptly do so. The legend shall be removed upon termination of this
Agreement.
4. MISCELLANEOUS.
4.1 CONDITIONS TO EXERCISE OF RIGHTS. Exercise of SCP's rights under this
Agreement shall be subject to and conditioned upon, and the Investors
and the Company shall use their best efforts to assist SCP in,
compliance with applicable laws.
4.2 GOVERNING LAW. The construction, validity and interpretation of this
Agreement will be governed by the internal laws of the State of
Delaware without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
4.3 SUCCESSORS IN INTEREST. The provisions of this Agreement shall be
binding upon the successors in interest to any of the shares of the
Investor Stock subject to this Agreement. The Company shall not permit
the transfer of any shares of Investor Stock on its books or issue a
new certificate representing any shares of Investor Stock unless and
until the person to whom such security is to be transferred shall have
executed a written agreement, substantially in the form of this
Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if
such person were an Investor.
4.4 ASSIGNABILITY. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
4.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by
commercial overnight courier (with
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confirmation of receipt) or sent via facsimile (with confirmation of
receipt) (i) if to the Company, at USDATA Corporation, 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx 00000 (fax: (000) 000-0000),
Attention: General Counsel, (ii) if to an Investor, at the address
beneath such Investor's name on Schedule A attached hereto, and (iii)
if to SCP, at Building 300, 000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx
00000, Attention: General Counsel (fax: (000) 000-0000). Notice given
by facsimile shall be confirmed by appropriate answer back and shall be
effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next business
day after receipt if not received during the recipient's normal
business hours. All notices by facsimile shall be confirmed promptly
after transmission in writing by certified mail or personal delivery.
Any party may change any address to which notice is to be given to it
by giving notice as provided above of such change of address.
4.6 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
4.7 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 EXPENSES. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may
be entitled.
4.9 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subject matter hereof.
4.10 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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The foregoing RIGHT OF FIRST REFUSAL AGREEMENT is hereby executed as of the date
first above written.
SAFEGUARD DELAWARE, INC.
By:
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Name:
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Title:
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SAFEGUARD 2000 CAPITAL, L.P.
By: Safeguard Delaware, Inc.,
its General Partner
By:
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Name:
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Title:
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SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP Private Equity II General Partner, L.P.,
its General Partner
By: SCP Private Equity II LLC,
its Manager
By:
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Name:
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Title:
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USDATA CORPORATION
By:
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Xxxxxx Xxxxx
Chief Executive Officer
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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
