Exhibit 99.4
STANDBY STOCK PURCHASE AGREEMENT
by and between
SAFEGUARD SCIENTIFICS, INC.
AND
OPUS360 CORPORATION
Dated February ________, 2000
STANDBY STOCK PURCHASE AGREEMENT
THIS STANDBY STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into on this February _______, 2000 between SAFEGUARD SCIENTIFICS, INC.,
a Pennsylvania corporation ("Safeguard"), and OPUS360 CORPORATION, a Delaware
corporation (the "Company").
BACKGROUND
A. The Company is contemplating an initial public offering (the "Public
Offering") of its common stock, par value $.001 per share (the "Common Stock"),
through an underwritten public offering lead by Xxxxxxxxx Xxxxxxxx as the
representative of the several underwriters (the "Underwriters").
B. In connection with the Public Offering, the Company will offer
___________ shares of its common stock (the "SSP Shares") directly to the
shareholders of Safeguard pursuant to a share subscription program (the "SSP").
C. If and to the extent any of the SSP Shares are not subscribed for or,
if subscribed for, are not purchased by the shareholders of Safeguard under the
SSP, Safeguard has agreed to purchase all such SSP Shares directly from the
Company for its own account for investment purposes only on the terms and
subject to the conditions set forth herein.
D. ChaseMellon Shareholder Services, L.L.C. ("Chase") will act as the
offering agent for the SSP. The offering agent will determine the record date
shareholders eligible to participate in the SSP and will collect subscriptions
and subscription payments from eligible Safeguard shareholders until 6:00 p.m.
on the third business day following the date the Company determines the initial
public offering price for the Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE 1
THE TRANSACTION
1.1. Purchase and Purchase Price.
(a) In the event that any of the SSP Shares are not subscribed for or,
if subscribed for, are not purchased by the shareholders of
Safeguard under the SSP, Safeguard
shall, or shall cause its wholly owned subsidiary Safeguard
Delaware, Inc. to, purchase these remaining shares.
(b) The purchase price for the SSP Shares (the "Purchase Price") shall
be equal to the product of multiplying (i) the aggregate number of
SSP Shares, by (ii) the price per share of Common Stock sold
pursuant to the Public Offering (the "IPO Price").
(c) Safeguard shall transfer, or Safeguard shall cause Safeguard
Delaware, Inc. to transfer, or shall cause Chase to pay out of
subscription funds received on behalf of Safeguard's shareholders
participating in the SSP, to the Company, an amount equal to the
Purchase Price on the day of the closing of the Public Offering by
wire transfer.
1.2. Closing.
(a) Time and Place. The closing under this Agreement (the "Closing")
will take place at _________, EST time, at the time of the closing
of the Public Offering, at the offices of _____________, or at such
other time, date or place as the parties shall mutually agree. The
date on which the Closing occurs is sometimes referred to herein as
the "Closing Date."
Deliveries and Proceedings to Offering Agent. On the Closing Date,
the Company shall instruct Chase to accept instructions from Xxxxxxx
Xxxxxxxxx, or her designee at Safeguard, for delivery of the
subscription funds collected by the offering agent to the extent not
paid to the Company at the Closing.
(c) Deliveries and Proceedings to Transfer Agent. On the Closing Date,
the Company shall instruct Chase to accept instructions from Xxxxxxx
Xxxxxxxxx, or her designee at Safeguard, for:
(i) transmission to the Company's transfer agent, American Stock
Transfer and Trust Company, of instructions for delivery of
the SSP Shares purchased by Safeguard shareholders in the SSP;
and
(ii) delivery to Safeguard of the SSP Shares not purchased by
Safeguard shareholders.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Safeguard as follows:
2.1 Organization. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
2.2. Power and Authority. The Company has full corporate power and authority to
make, execute, deliver and perform this Agreement and the transactions
contemplated hereby.
2.3. Authorization and Enforceability. The execution, delivery and performance
of this Agreement by the Company have been duly authorized by all
necessary corporate action on the part of the Company, and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF SAFEGUARD
Safeguard represents and warrants to the Company as follows:
3.1 Organization. Safeguard is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania.
3.2. Power and Authority. Safeguard has full corporate power and authority to
make, execute, deliver and perform this Agreement and the transactions
contemplated hereby.
3.3 Authorization and Enforceability. The execution, delivery and performance
of this Agreement by Safeguard have been duly authorized by all necessary
corporate action on the part of Safeguard, and this Agreement constitutes
the legal, valid and binding obligation of Safeguard, enforceable against
Safeguard in accordance with its terms.
3.4 Authorization and Approvals. All consents, approvals, authorizations and
orders necessary for the execution and delivery of this Agreement have
been obtained; and Safeguard, or an affiliate have full rights, power and
authority to enter into this Agreement and to sell the shares of Safeguard
eMerge Stock as provided hereunder.
3.5 Investment Intent. Safeguard represents, warrants and covenants that it is
acquiring the SSP Shares for its own account, as a long-term investment,
and not with the view to resale or redistribution. To that end, Safeguard
agrees it will retain and not sell, pledge, hypothecate or otherwise
transfer, directly or indirectly, any interest (beneficial or otherwise)
in the SSP Shares for a period of one year from the date of the Closing.
ARTICLE 4
CONDITIONS TO CLOSING; TERMINATION
4.1 Conditions Precedent to Obligations of Safeguard. The obligations of
Safeguard to proceed with the Closing are subject to the fulfillment prior
to or at Closing of the following conditions (any one or more of which may
be waived in whole or in part by Safeguard at Safeguard's option):
(a) Bringdown of Representations and Warranties. The representations and
warranties of the Company contained in this Agreement shall be true
and correct on and as of the time of Closing, with the same force
and effect as though such representations and warranties had been
made on, as of and with reference to such time, and Safeguard shall
have received a certificate, signed by an executive officer of the
Company, to such effect.
(b) Performance and Compliance. The Company shall have performed all of
the covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by it on or before
the Closing, and Safeguard shall have received a certificate, signed
by any vice president of the Company, to such effect.
(c) Public Offering. The Closing of the Public Offering shall have
occurred.
4.2. Conditions Precedent to the Obligations of the Company. The obligations of
the Company to proceed with the Closing hereunder are subject to the
fulfillment prior to or at Closing of the following conditions (any one or
more of which may be waived in whole or in part by the Company at the
Company's option):
(a) Bringdown of Representations and Warranties. The representations and
warranties of Safeguard contained in this Agreement shall be true
and correct on and as of the time of Closing, with the same force
and effect as though such representations and warranties had been
made on, as of and with reference to such time, and Safeguard shall
have delivered to the Company a certificate, signed by an executive
officer of Safeguard, to such effect.
(b) Performance and Compliance. Safeguard shall have performed all of
the covenants and complied with all the provisions required by this
Agreement to be performed or complied with by it on or before the
Closing and Safeguard shall have delivered to the Company a
certificate, signed by any vice president of Safeguard, to such
effect.
(c) Public Offering. The closing of the Public Offering shall have
occurred.
4.3. Termination.
(a) When Agreement May Be Terminated. This Agreement may be terminated
at any time prior to Closing:
(i) by mutual consent of Safeguard and the Company; or
(ii) by Safeguard or the Company, if the Company shall have
withdrawn its Registration Statement on Form S-1 relating to
the Public Offering (Reg. No. 333-93185).
(b) Effect of Termination. In the event of termination of this Agreement
by either Safeguard or the Company, as provided above, this
Agreement shall forthwith terminate and there shall be no liability
on the part of either Safeguard or the Company, except for
liabilities arising from a breach of this Agreement prior to such
termination; provided, however, that the obligations set forth in
Article 5 hereof shall survive such termination.
ARTICLE 5
CERTAIN ADDITIONAL COVENANTS
5.1 Indemnification.
(a) Safeguard hereby agrees to indemnify the Company and its
underwriters, affiliates, officers, employees, representatives and
directors (the "Indemnified Persons") against, and hold them
harmless from, any loss, liability, claim, damage or expense, joint
or several ("Losses"), arising directly or indirectly, out of or in
connection with, the SSP, including, without limitation, (i) costs
and expenses associated with the failure of any shareholders of
Safeguard to consummate purchases of SSP Shares for which they have
subscribed, (ii) any claims by shareholders of Safeguard or other
persons arising from the SSP, and (iii) other costs and expenses,
including printing costs and reasonable legal fees and expenses,
arising from the establishment, execution and performance of the
SSP. Notwithstanding the foregoing, Safeguard shall not indemnify
the Company against liabilities arising from any untrue or allegedly
untrue statement of a material fact, or omission or alleged omission
of a material fact required to be stated to make the statements not
misleading, in the prospectus contained in the Company's
Registration Statement on Form S-1 (Reg. No. 333-93185) (the
"Prospectus"), except for statements or omissions regarding the SSP
and except for any materials related to the SSP delivered to
Safeguard's shareholders and not to other recipients of the
Prospectus generally. Safeguard agrees to reimburse the Indemnified
Persons, as incurred, for any reasonable legal or other expenses
reasonably incurred by them in connection with investigating or
defending any Losses.
(b) Promptly after receipt by an Indemnified Person of notice of the
commencement of any action for which indemnification or contribution
may be sought hereunder, such Indemnified Person will notify
Safeguard in writing of the commencement thereof. The failure to so
notify Safeguard will not relieve Safeguard from liability under
Section 5.1(a) above unless and to the extent that Safeguard did not
otherwise learn of such action and such failure results in the
forfeiture of substantial rights and defenses. Safeguard shall be
entitled to appoint counsel at Safeguard's expense to represent the
Indemnified Person in any action for which indemnification is sought
(in which case Safeguard shall not thereafter be liable for the fees
and expenses of separate counsel retained by the Indemnified Person
except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding Safeguard's election to appoint counsel to represent
the Indemnified Person in an action, the Indemnified Person shall
have the right to employ separate counsel (including local counsel),
and Safeguard shall bear the reasonable fees, costs and expenses of
such counsel if (i) the use of counsel chosen by Safeguard to
represent the Indemnified Person would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both Safeguard and the
Indemnified Person and the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are
different from or in addition to those available to Safeguard, (iii)
Safeguard shall not have employed counsel reasonably satisfactory to
the Indemnified Person within a reasonable time after notification
of the commencement of such action or (iv) Safeguard shall have
authorized the Indemnified Person to employ separate counsel at the
expense of Safeguard.
(c) Safeguard shall not, without the prior written consent of the
relevant Indemnified Person, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder unless such
settlement, compromise or consent includes an unconditional release
of such Indemnified Person from all liability arising from such
claim, action, suit or proceeding. An Indemnified Person may not
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be sought hereunder without the consent of Safeguard, such consent
not to be unreasonably withheld.
(d) In the event that the indemnity provided for in this Article 5 is
unavailable to or insufficient to hold harmless an Indemnified
Person for any reason, the Indemnified Persons and Safeguard shall
contribute to the Losses (including the legal and other expenses
attributable to investigating or defending same) to which the
Indemnified Person may be subject in such proportion as is
appropriate to reflect the relative fault of the Indemnified Person
and Safeguard in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations, including that the Company performed the SSP as an
accommodation to Safeguard without any legal obligation to do so.
Relative fault shall be determined by reference to, among other
things, whether any untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information provided by the Indemnified
Person or Safeguard, the intent of the Indemnified Person and
Safeguard, and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contribution was determined by any method of allocation that does
not take into account the equitable considerations discussed above.
ARTICLE 6
MISCELLANEOUS
6.1. Nature and Survival of Representations. The representations, warranties,
covenants and agreements of Safeguard and the Company contained in this
Agreement, and all statements contained in this Agreement or any exhibit
hereto or any certificate or other document delivered pursuant to this
Agreement or in connection with the transactions contemplated hereby,
shall be deemed to constitute representations, warranties, covenants and
agreements of the respective party delivering the same. All such
representations, warranties, covenants and agreements shall survive the
Closing.
6.2. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered or, if mailed, when mailed by United States
first-class, certified or registered mail, postage prepaid, to the other
party at the following addresses (or at such other address as shall be
given in writing by any party to the other):
(a) If to Safeguard, to:
Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) If to the Company, to:
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxx
With a required copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
6.3. Third Party Beneficiaries. Safeguard acknowledges that each of the
Underwriters of the Public Offering shall be a third party beneficiary
entitled to exercise the rights and remedies provided for herein directly
against Safeguard. The Company shall cooperate with and assist each of the
Underwriters of the Public Offering with respect to any action such
Underwriters take to exercise such rights and remedies directly against
Safeguard.
6.4. Successors and Assigns. This Agreement, and all rights and powers granted
hereby, will bind and inure to the benefit of the parties hereto and their
respective successors and permitted assigns but shall not be assignable or
delegable by any party without the prior written consent of the other
party.
6.5. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of Pennsylvania, without giving effect
to its principles of conflicts of laws or choice of forum.
6.6. Headings. The headings preceding the text of the sections and subsections
hereof are inserted solely for convenience of reference, and shall not
constitute a part of this Agreement, nor shall they affect its
meaning,construction or effect.
6.7. Counterparts. This Agreement may be executed in two counterparts, each of
which shall be deemed an original, but which together shall constitute one
and the same instrument. Each such copy shall be deemed an original and it
shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
6.8. Further Assurances. Each party shall cooperate and take such action as may
be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement and the transactions
contemplated hereby.
6.9. Amendment and Waiver. The parties may by mutual agreement amend this
Agreement in any respect, and either party, as to such party, may (a)
extend the time for the performance of any of the obligations of the other
party, (b) waive any inaccuracies in representations by the other party,
(c) waive compliance by the other party with any of the agreements
contained herein and performance of any obligations by the other party,
and (d) waive the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this Agreement.
To be effective, any such amendment or waiver must be in writing and be
signed by the party against whom enforcement of the same is sought.
6.10. Entire Agreement. This Agreement sets forth all of the promises,
covenants, agreements, conditions and undertakings between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written.
6.11. Interpretations. No party to this Agreement shall be considered the
draftsman. This Agreement has been reviewed, negotiated and accepted by
all parties and their attorneys and shall be construed and interpreted
according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
SAFEGUARD SCIENTIFICS, INC.
By:
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Name:
Title:
OPUS360 CORPORATION
By:
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Name:
Title:
