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EXHIBIT 99.2
NEITHER THE EXCHANGE RIGHT GRANTED HEREIN NOR ANY OF THE SECURITIES ISSUABLE
UPON EXERCISE OF SUCH EXCHANGE RIGHT HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NO
TRANSFER OF SUCH EXCHANGE RIGHT OR OF THE SECURITIES ISSUABLE UPON EXERCISE OF
SUCH EXCHANGE RIGHT SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF
SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
EXCHANGE AGREEMENT
This Exchange Agreement (this "Exchange Agreement") is entered
into on this 12th day of September, 2000, by and between USDATA Corporation, a
Delaware corporation (the "Company"), and Safeguard 2000 Capital, L.P.
("Safeguard," and together with each of its assignees and transferees,
individually, a "Holder" and, collectively, the "Holders"). Subject to the terms
and conditions set forth herein, including, without limitation, Section 3
hereof, the Company hereby grants to the Holder the right to exchange (the
"Exchange Right") shares of the Series A-2 Convertible Preferred Stock, par
value $0.01 per share (the "eMake Preferred Stock"), of eMake Corporation, a
Delaware corporation ("eMake"), owned by the Holder for fully paid and
non-assessable shares of the Company's Series B Convertible Preferred Stock, par
value $0.01 per share (the "Company Preferred Stock").
ITEM 1. Exercise of Exchange Right.
(a) Exchange Rate. Subject to adjustment as provided in Section 3
hereof, 0.025 of a share of Company Preferred Stock (the "Exchange
Rate") shall be issuable hereunder (the "Exchange Shares") for each
share of eMake Preferred Stock owned by the Holder tendered for
exchange pursuant to the Exchange Right.
(b) Exerciseability. The Exchange Right shall be exercisable, in whole
or in part, from time to time and at any time on and after the date
hereof until 5:00 p.m., eastern time, on the Expiration Date (as
hereinafter defined), in accordance with Section 1.3 hereof. As used
herein, the term "Expiration Date" means the earlier of (i) June 30,
2006, or (ii) the date on which the Holder no longer owns any shares of
eMake Preferred Stock (or other securities obtained as a result of
changes or reclassifications of eMake Preferred Stock pursuant to
Section 3.1.5 hereof).
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(c) Exercise. Upon tender of a duly executed Notice of Exercise in the
form of Annex A attached hereto, together with the original
certificate(s) representing the shares of eMake Preferred Stock being
exchanged for the Exchange Shares to be acquired, at the Company's
principal executive offices presently located at 2345 North Central
Expressway, Richardson, Texas, 75080, Attention: President, or at such
other address as the Company shall have advised the Holder in writing
(the "Designated Office"), the Holder shall be entitled to receive a
certificate or certificates for the Exchange Shares so acquired. The
Company agrees that the Exchange Shares shall be deemed to have been
issued to the Holder as of the close of business on the date on which
the Company receives a duly executed Notice of Exercise covering such
Exchange Shares and the related certificates representing the shares of
eMake Preferred Stock being exchanged therefor as described above.
ITEM 2. Transfer; Issuance of Stock Certificates; Restrictive Legends.
(a) Transfer. Subject to compliance with the restrictions on transfer
set forth in this Section 2, the Exchange Right granted hereunder with
respect to any shares of eMake Preferred Stock may be transferred or
assigned to any transferee or assignee of such shares of eMake
Preferred Stock, upon delivery to the Company of a written assignment
with respect thereto in the form of Annex B attached hereto duly
executed by the Holder or its agent or attorney. Upon such delivery,
the Company shall execute and deliver a new Exchange Agreement or
Exchange Agreements in the name of the assignee or assignees. An
Exchange Right, if properly assigned in compliance with the provisions
hereof, may be exercised by the new Holder for the acquisition of
Exchange Shares without having a new Exchange Agreement issued. Prior
to due presentment for registration of transfer thereof, the Company
may deem and treat the registered Holder of the Exchange Right as the
absolute owner hereof (notwithstanding any notations of ownership or
writing thereon made by anyone other than a duly authorized officer of
the Company) for all purposes and shall not be affected by any notice
to the contrary. All Exchange Agreements issued upon any assignment of
the Exchange Right shall be the valid obligations of the Company,
evidencing the same rights, and entitled to the same benefits as this
Exchange Agreement with respect to the portion of the Exchange Right
transferred or assigned, upon registration of transfer or exchange.
(b) Stock Certificates. Certificates for the Exchange Shares shall be
delivered to the Holder within a reasonable time after the Exchange
Right shall have been exercised pursuant to Section 1. The issuance of
certificates for Exchange Shares upon the exercise of the Exchange
Right shall be made without charge to the Holder hereof including,
without limitation, any documentary, stamp or similar tax that may be
payable in respect thereof; provided, however, that the Company shall
not be required to pay any income tax to which the Holder hereof may be
subject in connection with the issuance of this Exchange Agreement or
the Exchange Shares; and provided further, that if Exchange Shares are
to be delivered in a name other than the name of the Holder hereof
representing any Exchange Right being exercised, then no such delivery
shall be made unless the person requiring the same has paid to the
Company the amount of transfer taxes or charges incident thereto, if
any.
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(c) Restrictive Legends.
Except as otherwise provided in this Section 2, each
certificate for Exchange Shares initially issued upon
the exercise of the Exchange Right, and each
certificate for Exchange Shares issued to any
subsequent transferee of any such certificate, shall be
stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO TRANSFER OF
THE SHARES REPRESENTED BY THIS CERTIFICATE OR ISSUED UPON
CONVERSION OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS
(A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (B)
THE HOLDER SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY
THAT SUCH PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS."
Except as otherwise provided in this Section 2, each Exchange
Agreement shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"NEITHER THE EXCHANGE RIGHT GRANTED HEREIN NOR ANY OF THE
SECURITIES ISSUABLE UPON EXERCISE OF SUCH EXCHANGE RIGHT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NO
TRANSFER OF SUCH EXCHANGE RIGHT OR OF THE SECURITIES ISSUABLE
UPON EXERCISE OF SUCH EXCHANGE RIGHT SHALL BE VALID OR
EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS OR (B)
THE HOLDER HEREOF SHALL DELIVER TO THE COMPANY AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION OR
QUALIFICATION
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REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS."
Notwithstanding the foregoing, the legend requirements of this Section 2.3 shall
terminate as to any particular Exchange Agreement or Exchange Share when the
Company shall have received from the Holder thereof an opinion of counsel in
form and substance reasonably acceptable to the Company that such legend is not
required in order to ensure compliance with the Securities Act and applicable
state securities laws. Whenever the restrictions imposed by this Section 2.3
shall terminate, the holder hereof or of Exchange Shares, as the case may be,
shall be entitled to receive from the Company without cost to such holder a new
Exchange Agreement or certificate for Exchange Shares of like tenor, as the case
may be, without such restrictive legend.
ITEM 3. Adjustment of Exchange Rate; Nature of Securities Issuable Upon
Exercise of Exchange Right.
(a) Exchange Rate; Adjustment of Number of Shares. The Exchange Rate
set forth in Section 1 hereof shall be subject to adjustment from time
to time as hereinafter provided.
Merger, Sale of Assets, etc. If at any time while the Exchange
Right, or any portion thereof, is outstanding and
unexpired there shall be a reorganization (other than a
combination, reclassification, exchange, or subdivision
of shares as provided in Sections 3.1.2 and 3.1.3),
merger or consolidation of the Company with or into
another corporation in which the Company is not the
surviving entity, or a merger in which the Company is
the surviving entity but the shares of the Company's
capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other
property, whether in the form of securities, cash, or
otherwise, or a sale or transfer of the Company's
properties and assets as, or substantially as, an
entirety to any other person, then, as a part of such
reorganization, merger, consolidation, sale or transfer,
lawful provision shall be made so that the holder of
this Exchange Agreement shall thereafter be entitled to
receive upon exercise of the Exchange Right, during the
period specified herein and upon delivery of the shares
of eMake Preferred Stock being exchanged pursuant
hereto, the number of shares of stock or other
securities or cash or property of the successor
corporation resulting from such reorganization, merger,
consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of the Exchange Right
would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer
if the Exchange Right had been exercised immediately
before such reorganization, consolidation, merger, sale
or transfer, all subject to further adjustment as
provided in this Section 3. The foregoing provisions of
this Section 3.1.1 shall similarly apply to successive
reorganizations, consolidations, mergers, sales and
transfers and to
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the stock and securities of any other corporation that
are at the time receivable upon the exercise of the
Exchange Right. If the per share consideration payable
to the Holder hereof for shares in connection with any
such transaction is in a form other than cash or
securities, then the value of such consideration shall
be determined in good faith by the Company's Board of
Directors. In all events, appropriate adjustment shall
be made in the application of the provisions of this
Exchange Agreement with respect to the rights and
interests of the Holder hereof after the transaction, to
the end that the provisions of this Exchange Agreement
shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other
property deliverable after that event upon exercise of
the Exchange Right.
Reclassification, etc. If the Company, at any time while the
Exchange Right, or any portion thereof, remains
outstanding and unexpired, shall, by the
reclassification or exchange of securities or otherwise,
change any of the securities issuable upon exercise of
the Exchange Right into the same or a different number
of securities of any other class or classes, this
Exchange Agreement shall thereafter represent the right
to acquire such number and kind of securities as would
have been issuable as the result of such change with
respect to the securities issuable upon exercise of the
Exchange Right immediately prior to such
reclassification, exchange, or other change and the
Exchange Rate therefor shall be appropriately adjusted,
all subject to further adjustment as provided in this
Section 3.
Stock Splits, Stock Dividends and Reverse Stock Splits. In
case at any time the Company shall split or subdivide
the outstanding shares of Company Preferred Stock into a
greater number of shares, or shall declare and pay any
stock dividend with respect to its outstanding stock
that has the effect of increasing the number of
outstanding shares of Company Preferred Stock, the
Exchange Rate in effect immediately prior to such
subdivision or stock dividend shall be proportionately
increased, and conversely, in case at any time the
Company shall combine its outstanding shares of Company
Preferred Stock into a smaller number of shares, the
Exchange Rate in effect immediately prior to such
combination shall be proportionately reduced.
Adjustments for Dividends in Stock or Other Securities of
Property. If while the Exchange Right, or any portion
hereof, remains outstanding and unexpired the holders of
Company Preferred Stock shall have received, or, on or
after the record date fixed for the determination of
eligible stockholders, shall have become entitled to
receive, without payment therefor, other or additional
stock or
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other securities or property (other than cash) of the
Company by way of dividend, then and in each case, this
Exchange Agreement shall represent the right to acquire,
in addition to the number of shares of the security
receivable upon exercise of the Exchange Right, and
without payment of any additional consideration
therefor, the amount of such other or additional stock
or other securities or property of the Company that such
holder would hold on the date of such exercise had it
been the holder of record of the security receivable
upon exercise of the Exchange Right on the date hereof
and had thereafter, during the period from the date
hereof to and including the date of such exercise,
retained such shares and/or all other additional stock
available by it as aforesaid during such period, giving
effect to all adjustments called for during such period
by the provisions of this Section 3.
eMake Reclassification, etc. If eMake, at any time while the
Exchange Right, or any portion thereof, remains
outstanding and unexpired, shall, by the
reclassification or exchange of securities or otherwise,
change the eMake Preferred Stock into the same or a
different number of securities of any other class or
classes, this Exchange Agreement shall thereafter
represent the right to exchange the securities into or
for which the eMake Preferred Stock is reclassified,
exchanged or changed and the Exchange Rate therefor
shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 3.
eMake Stock Splits, Stock Dividends and Reverse Stock Splits.
In case at any time eMake shall split or subdivide the
outstanding shares of eMake Preferred Stock into a
greater number of shares, or shall declare and pay any
stock dividend with respect to its outstanding stock
that has the effect of increasing the number of
outstanding shares of eMake Preferred Stock, the
Exchange Rate in effect immediately prior to such
subdivision or stock dividend shall be proportionately
reduced, and conversely, in case at any time eMake shall
combine its outstanding shares of eMake Preferred Stock
into a smaller number of shares, the Exchange Rate in
effect immediately prior to such combination shall be
proportionately increased.
Adjustments for Dividends in eMake Stock or Other Securities
of Property. If while the Exchange Right, or any portion
hereof, remains outstanding and unexpired, the holders
of eMake Preferred Stock shall have received, or, on or
after the record date fixed for the determination of
eligible stockholders, shall have become entitled to
receive, without payment therefor, other or additional
stock or other securities or property (other than cash)
of eMake by way of dividend, then and in each case, upon
exercise of the
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Exchange Right, in addition to the number of shares of
eMake Preferred Stock deliverable hereunder, the Holder
shall also deliver to the Company such other or
additional stock or other securities or property of
eMake that such Holder received with respect to the
eMake Preferred Stock being exchanged during such
period, giving effect to all adjustments called for
during such period by the provisions of this Section 3.
(b) Timing of Exchange Rate Adjustment. No adjustment of the Exchange
Rate shall be made unless such adjustment would require an increase or
decrease of at least 0.0001 in such rate; provided, however, that any
adjustments which by reason of this Section 3.2 are not required to be
made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall require an increase or decrease
of at least 0.0001 in the Exchange Rate then in effect hereunder.
(c) Adjustment Certificate. In each case of an adjustment in the
Exchange Rate, the Company shall compute and prepare a certificate
setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of (i) the number
of Company Preferred Stock outstanding or deemed to be outstanding,
(ii) the adjusted Exchange Rate and (iii) the number of Exchange Shares
issuable upon exercise of this Exchange Right. The Company will
forthwith mail a copy of each such certificate to the holder hereof.
ITEM 4. Registration; Exchange and Replacement of Exchange Agreement;
Reservation of Shares. The Company shall keep at the Designated
Office a register in which the Company shall provide for the
registration, transfer and exchange of the Exchange Right. The
Company shall not at any time, except upon the dissolution,
liquidation or winding-up of the Company, close such register so as
to result in preventing or delaying the exercise or transfer of the
Exchange Right.
The Company may deem and treat the person in whose name the
Exchange Right is registered as the holder and owner hereof for all purposes and
shall not be affected by any notice to the contrary, until registration of any
transfer as provided in this Section 4.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Exchange Agreement and (in case of loss, theft or destruction) of indemnity
satisfactory to it, and (in the case of mutilation) upon surrender and
cancellation of this Exchange Agreement, the Company will (in the absence of
notice to the Company that the Exchange Agreement has been acquired by a bona
fide purchaser) make and deliver a new Exchange Agreement of like tenor, in lieu
of this Exchange Agreement without requiring the posting of any bond or the
giving of any security.
The Company shall at all times reserve and keep available out
of its authorized shares of Company Preferred Stock, solely for the purpose of
issuance upon the exercise of the Exchange Right, such number of shares of
Company Preferred Stock as shall be issuable upon the exercise hereof. The
Company covenants and agrees that, upon exercise of the Exchange
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Right and receipt of the shares of eMake Preferred Stock therefor, all Exchange
Shares issuable upon such exercise shall be duly and validly issued, fully paid
and non-assessable.
ITEM 5. Fractional Shares. The Company shall not be required to issue
fractions of shares, upon exercise of the Exchange Right or
otherwise, or to distribute certificates that evidence fractional
shares. With respect to any fraction of a share called for upon any
exercise hereof, the Company shall pay to the Holder an amount in
cash equal to such fraction multiplied by the current market value
of such fractional share as may be prescribed by the Board of
Directors of the Company.
ITEM 6. Holders Not Deemed Stockholders. No holder of the Exchange
Right shall, as such, be entitled to vote or to receive dividends or
be deemed the holder of Exchange Shares that may at any time be
issuable upon exercise of the Exchange Right for any purpose
whatsoever, nor shall anything contained herein be construed to
confer upon any Holder of the Exchange Right, as such, any of the
rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders
at any meeting thereof, or for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give
or withhold consent to any corporate action (whether upon any
recapitalization, issue or reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger or
conveyance or otherwise), or to receive notice of meetings, or to
receive dividends or subscription rights, until such holder shall
have exercised the Exchange Right and been issued Exchange Shares in
accordance with the provisions hereof.
ITEM 7. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly
made when delivered personally, or mailed by registered or certified
mail, return receipt requested, or telecopied or telexed and
confirmed in writing and delivered personally or mailed by
registered or certified mail, return receipt requested (a) if to the
holder of the Exchange Right, to the address of such Holder as shown
on the books of the Company, or (b) if to the Company, to the
address set forth in Section 1.3 of this Exchange Agreement; or at
such other address as the Holder or the Company may hereafter have
advised the other.
ITEM 8. Successors. All the covenants, agreements, representations and
warranties contained in this Exchange Agreement shall bind the
parties hereto and their respective heirs, executors,
administrators, distributees, successors, assigns and transferees.
ITEM 9. Law Governing. This Exchange Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State
of Delaware (not including the choice of law rules thereof)
regardless of the jurisdiction of creation or domicile of the
Company or its successors or of the holder at any time hereof.
ITEM 10. Entire Agreement; Amendments and Waivers. This Exchange
Agreement sets forth the entire understanding of the parties with
respect to the transactions contemplated
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hereby. The failure of any party to seek redress for the violation
or to insist upon the strict performance of any term of this
Exchange Agreement shall not constitute a waiver of such term and
such party shall be entitled to enforce such term without regard to
such forbearance. This Exchange Agreement may be amended, and any
breach of or compliance with any covenant, agreement, warranty or
representation may be waived, only if the Company has obtained the
written consent or written waiver of the Holder, and then such
consent or waiver shall be effective only in the specific instance
and for the specific purpose for which given.
ITEM 11. Severability; Headings. If any term of this Exchange Agreement
as applied to any person or to any circumstance is prohibited, void,
invalid or unenforceable in any jurisdiction, such term shall, as to
such jurisdiction, be ineffective to the extent of such prohibition
or invalidity without in any way affecting any other term of this
Exchange Agreement or affecting the validity or enforceability of
this Exchange Agreement or of such provision in any other
jurisdiction. The Section headings in this Exchange Agreement have
been inserted for purposes of convenience only and shall have no
substantive effect.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company and the Holder have caused
this Exchange Agreement to be duly executed as of the date first written above.
USDATA CORPORATION
By:_____________________________________
Name:______________________________
Title:_____________________________
SAFEGUARD 2000 CAPITAL, L.P.
By: Safeguard Delaware, Inc.,
its General Partner
By:_____________________________________
Name:______________________________
Title:_____________________________
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ANNEX A
NOTICE OF EXERCISE
(TO BE EXECUTED UPON PARTIAL OR FULL EXERCISE OF THE
EXCHANGE RIGHT DESCRIBED IN THE WITHIN EXCHANGE AGREEMENT)
The undersigned hereby irrevocably elects to exercise the right to
acquire __________ shares of Series B Convertible Preferred Stock of USDATA
Corporation covered by the within Exchange Agreement according to the conditions
hereof, herewith surrenders the original stock certificate(s) representing
______________ shares of eMake Corporation Series A-2 Convertible Preferred
Stock, and requests that a certificate for such number of shares of USDATA
Corporation Series B Convertible Preferred Stock be issued in the name of, and
delivered to _______________________, whose address is set forth below.
Dated:_______________________
________________________________________________
(Signature must conform to name of holder as
specified on the face of the Exchange Agreement)
________________________________________________
________________________________________________
(Address)
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ANNEX B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned has sold, assigned and transferred
unto the Assignee named below ____ shares of the Series B Preferred Stock
covered by the within Exchange Agreement and hereby sells, assigns and transfers
unto the Assignee named below all of the rights of the undersigned under this
Exchange Agreement, including the Exchange Right, with respect to such shares of
Series B Convertible Preferred Stock set forth below:
-----------------------------------------------------------------------------
No. of Shares of Series B
Name and Address of Assignee Preferred Stock
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
and does hereby irrevocably constitute and appoint _______________________
attorney-in-fact to register such transfer onto the books of USDATA Corporation
maintained for the purpose, with full power of substitution in the premises.
Dated:____________________________ Print Name:___________________________
Signature:_______________________
Witness:_________________________
NOTICE: THE SIGNATURE ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS EXCHANGE AGREEMENT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
