4
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Agreement") is made
and entered into as of February 4, 1999, by and between The
viaLink Company, an Oklahoma corporation (the "Company"), and
Hewlett-Packard Company, a Delaware corporation (the "Holder").
Capitalized terms used but not defined herein shall have the
meanings set forth in the Note Purchase Agreement (as defined
below).
RECITALS:
WHEREAS, the parties to this Agreement are parties to a
Note Purchase Agreement of even date herewith (the ``Note
Purchase Agreement''), pursuant to which the Company shall issue
to Holder a Secured Subordinated Promissory Note in the principal
amount of $6,000,000, which note may be exchanged, subject to and
in accordance with the terms of the Note Purchase Agreement, for
a Convertible Secured Subordinated Note of like principal amount
convertible into shares of the Company's Common Stock (the
"Convertible Note");
WHEREAS, as a condition to the obligations of the
parties to consummate the transactions contemplated by the Note
Purchase Agreement, the Company has agreed to provide certain
rights to Holder and Holder has agreed to certain restrictions,
each as set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, the parties hereto agree as follows:
I. REGISTRATION RIGHTS
1. Demand Registration.
(a) Right to Demand Registration. On or after the date
that is eighteen (18) months after the date hereof, the Holder
may, at any time, request registration under the Securities Act
of 1933, as amended (the "Securities Act") of the sale of 50% or
greater of the number of its Registrable Securities (as defined
in paragraph 9 below of this Article I) held as Common Stock (as
defined in paragraph 9 below of this Article I) pursuant to a
registration statement on Form S-1, Form SB-2 or any similar or
successor "long-form" registration statement available to the
Company (each such registration being a "Long-Form Registration")
or, if available, on Form X-0, Xxxx X-0, or on any similar or
successor short-form registration statement ("Short-Form
Registration"); provided that the total gross estimated proceeds
of any such offering are at least $3,000,000. The Holder shall
be entitled to request one (1) Long-Form Registration and three
(3) Short-Form Registrations. All registrations requested
pursuant to this paragraph 1(a) are referred to as "Demand
Registrations". A Demand Registration will be pursuant to a
Short-Form Registration whenever the Company is permitted to use
any applicable short form.
(b) Cutback. If a Demand Registration is an underwritten
public offering and the managing underwriters advise the Company
in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can successfully be sold in such offering, the Company will
include in such registration, prior to the inclusion of any
securities which are not Registrable Securities, the number of
Registrable Securities requested to be included which in the
opinion of such underwriters can be successfully sold, such
Registrable Securities to be taken from the holders of such
securities pro rata on the basis of the number of shares of such
securities for which the Company has been given requests for
inclusion therein by each such holder thereof.
(c) Timing. The Company shall not be obligated to effect
any Demand Registration within 180 days of a previous Demand
Registration or within 180 days of a previous registration in
which the Holder was given piggyback rights pursuant to paragraph
2 below. The Company may postpone for up to 180 days the filing
or effectiveness of a registration statement for a Demand
Registration if the Company reasonably believes such Demand
Registration would be detrimental to the Company and its
shareholders for such registration statement to be filed and it
is therefore essential to defer the filing of such registration
statement, or to permit the Company to avoid a special audit.
(d) Bankers. The Company shall have the right to select
the investment banker(s) and manager(s), if any, to administer
the offering.
2. Piggyback Registrations.
(a) Right to Piggyback. If, at any time during which any
Registrable Securities remain outstanding, but without obligation
to do so, the Company proposes to register any of its Common
Stock under the Securities Act in an underwritten public offering
(other than pursuant to a registration on Form S-8 or Form S-4,
or any similar forms then in effect) (each such registration
being a "Piggyback Registration"), the Company will give prompt
written notice (the "Registration Notice") to the Holder of its
intention to effect such a registration and will, subject to
paragraphs 2(b) and 2(c) below, include in such registration all
Registrable Securities of the Holder with respect to which the
Company has received written requests for inclusion therein
within 15 days after the receipt of the Company's notice, not to
exceed a maximum number of shares for the Holder equal to the
product obtained when the Holder's pre-registration holdings of
Registrable Securities are multiplied by a fraction, the
numerator of which is the total number of shares proposed to be
sold in the Piggyback Registration by all other selling
shareholders and the denominator of which is the total pre-
transaction shareholdings of all other selling shareholders ("Pro
Rata Fraction").
(b) Priority on Primary Registrations. If a Piggyback
Registration includes shares to be sold on behalf of the Company
("Primary Shares"), and the managing underwriter or underwriters
advise the Company that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in such offering without materially adversely
affecting the marketability of the offering, the Company will
include in such registration, (i) first, the securities the
Company proposes to sell, and (ii) second, the Registrable
Securities requested to be included in such registration by the
Holders and all other Common Stock requested to be included in
such registration (the "Other Common Stock"), to be included pro
rata on the basis of the number of shares of such securities for
which the Company has been given written requests for inclusion
therein by each such holder thereof.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf
of holders of the Company's securities (not including Primary
Shares), and the managing underwriters advise the Company in
writing that in their opinion (the number of securities requested
to be included in such registration exceeds the number which can
be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such
registration (i) first, the securities requested to be included
therein by the holders requesting such registration, if any, and
(ii) second, the Registrable Securities requested to be included
in such registration by the Holder and all Other Common Stock
requested to be included in such registration, to be included pro
rata on the basis of the number of shares of such securities for
which the Company has been given written requests for inclusion
therein by each such holder thereof.
3. Market Stand-Off Agreements.
Each holder of Registrable Securities agrees not to
effect any public sale or distribution (including sales pursuant
to Rule 144) of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the earlier
of (a) the 180 day period beginning on the effective date of any
Demand Registration or Piggyback Registration in which
Registrable Securities are included (except as part of such
underwritten registration), and (b) the time period for which all
executive officers and directors of the Company agree to be bound
pursuant to similar agreements, unless the underwriters managing
the registered public offering otherwise agree.
4. Registration Procedure.
The Company will use all commercially reasonable
efforts to effect the registration and the sale of such
Registrable Securities in accordance with the provisions of this
Agreement, and pursuant thereto the Company will, as
expeditiously as possible but subject to the terms hereof:
(i) Prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Registrable
Securities on such appropriate and legally available form as the
Company in its discretion shall elect (the "Registration
Statement") and use all commercially reasonable efforts to cause
such Registration Statement to become effective (provided that
before filing a Registration Statement or prospectus or any
amendments or supplements thereto, the Company will furnish to
the counsel selected and paid for by Holder copies of all such
documents proposed to be filed);
(ii) Prepare and file with the Securities and Exchange Commission
such amendments and supplements to such Registration Statement
and the prospectus used in connection therewith (the
"Prospectus") as may be necessary to keep such Registration
Statement effective for a period of not less than 180 days from
the effective date of the Registration Statement and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during such period;
(iii) Furnish each seller of Registrable Securities such
number of copies of such Registration Statement, each amendment
and supplement thereto, the prospectus included in such
Registration Statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities
owned by such seller;
(iv) Use all commercially reasonable efforts to register or
qualify such Registrable Securities under the securities or blue
sky laws of such states and the District of Columbia as any
seller of Registrable Securities reasonably requests and do any
and all other acts and things which may be reasonably or
advisable to enable such seller to consummate the disposition in
such states and the District of Columbia of the Registrable
Securities owned by Holder (provided that the Company will not be
required to (a) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph (d), (b) subject itself to taxation in
any such jurisdiction or (c) consent to general service of
process in any such jurisdiction);
(v) Notify each seller of such Registrable Securities of the
happening of any event of which the Company becomes aware, as a
result of which the prospectus included in such Registration
Statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading, and the Company will prepare a supplement or
amendment to the Prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such Prospectus
will not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not
misleading.
(vi) Cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the
Company are then listed;
(vii) Otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning
with the first day of the Company's first full calendar quarter
after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder; and
(viii) In the event of the issuance of any stop order
suspending the effectiveness of a Registration Statement, or of
any order suspending or preventing the use of any related
prospectus or suspending the qualification of any common stock
included in such Registration Statement for sale in any
jurisdiction, the Company will use all commercially reasonable
efforts promptly to obtain the withdrawal of such order.
5. Holder Procedures.
In connection with any Registration Statement, the
Company may require Holder to furnish to the Company such
information regarding the Holder and its proposed distribution of
Registrable Securities, to the extent necessary to comply with
the Securities Act, as the Company may from time to time
reasonably request in writing. As a condition precedent to the
Company's obligations hereunder, Holder agrees to cooperate with
the Company in all reasonable respects in connection with the
preparation and filing of each Registration Statement and any
amendment thereof, any Prospectus relating thereto and any
Prospectus supplement relating thereto with respect to the offer
and sale of Registrable Securities of such Holder.
6. Registration Expenses.
(a) Company Expenses. All expenses incident to the
Company's performance of or compliance with its registration
obligations under this Agreement, including all NASD registration
and filing fees, fees and expenses of compliance with securities
or blue sky laws, listing fees, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the
Company and all independent certified public accountants, and
other Persons retained by the Company, including all consultants,
advisors, and experts fees and expenses of thc Company of the
type ordinarily incurred in connection with the registration of
securities (all such expenses being herein called "Registration
Expenses"), will be borne by the Company; provided that
Registration Expenses shall not include, and Holder shall pay its
respective Pro Rata Fraction of all underwriting discounts and
commissions applicable to Registrable Securities sold by it
pursuant to this Agreement and all legal fees and expenses of
counsel retained by the Holder.
(b) Holder Expenses. To the extent Registration Expenses
are not required to be paid by the Company pursuant to paragraph
5(a), Holder will, vis a vis the other selling shareholders, pay
its respective Pro Rata Fraction of those Registration Expenses
directly allocable to the registration of Holder's securities so
included, and any Registration Expenses not so allocable will be
borne by all sellers of securities included in such registration
in proportion to the aggregate selling price of the securities to
be so registered.
7. Indemnification and Contribution.
(a) Indemnification by Company. The Company shall
indemnify and hold harmless, to the fullest extent permitted by
law, Holder, against all losses, claims, damages, liabilities and
expenses (including reasonable fees and legal expenses) resulting
from any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any amendment or
supplement thereto, or any omission of a 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, except in each case insofar as the same arises out of
or is based upon an untrue statement of a material fact or an
omission to state a material fact in such Registration Statement,
Prospectus, amendment or supplement, as the case may be, made or
omitted, as the case may be, in reliance upon and in conformity
with written information furnished to the Company by Holder for
use therein or by Holder's failure to deliver a copy of the
Registration Statement or Prospectus or any amendments or
supplements thereto after the Company has furnished Holder with a
sufficient number of copies of the same.
(b) Indemnification by Holder. Holder shall indemnify and
hold harmless to the fullest extent permitted by law, the
Company, its officers, directors, employees, representatives and
agents, the underwriters (if any) in such offering, any other
Person selling securities under such registration statement, any
controlling person of any such underwriter or other Person, and
each Person who controls (within the meaning of the Securities
Act) the Company, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation and legal expenses) resulting from any untrue
statement of a material fact contained in any Registration
Statement, any Prospectus, or any amendment or supplement
thereto, and any omission of a 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, to the extent the same arises out of or is based upon
any untrue statement of a material fact or any omission to state
a material fact in such Registration Statement, Prospectus,
amendment or supplement, as the case may be, made or omitted, as
the case may be in reliance upon and in conformity with written
information furnished to the Company by Holder for use therein.
(c) Notice. Each party entitled to indemnification under
this paragraph 7 (the "Indemnified Party") shall give notice to
the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that
counsel for the Indemnifying Party, who will conduct the defense
of such claim or litigation, is approved by the Indemnified Party
(whose approval will not be unreasonably withheld or delayed);
and provided further, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations except to the extent that
its defense of the claim or litigation involved is prejudiced by
such failure; provided, however, that the Indemnified Party 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 the conflicted
interests between such Indemnified Party and the Indemnifying
Party. The Indemnified Party may participate in such defense at
such Indemnified Party's expense. No Indemnifying Party, in the
defense of any such claim or litigation, except with the prior
consent of each Indemnified Party, shall consent to entry of any
judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant of
plaintiff to such Indemnified Party of a release from all
liability in respect to any claim or litigation, and no
Indemnified Party will consent to entry of any judgment or settle
any claim or litigation without the prior written consent of the
Indemnifying Party. Each Indemnified Party shall furnish such
information regarding himself, herself, or itself and the claim
in question as the Indemnifying Party may reasonably request and
as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) Contribution. If for any reason the indemnification
provided for in this Section 7 from an Indemnifying Party,
although otherwise applicable by its terms, is determined by a
court of competent jurisdiction to be unavailable to an
Indemnified Party hereunder, then the Indemnifying Party, in lieu
of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by the Indemnified Parties as a result of
such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of
such Indemnifying Party and the Indemnified Parties in connection
with the actions that resulted in such losses, claims, damages,
liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party
and the Indemnified Parties shall be determined by reference to,
among other things, whether any action in question, including any
untrue statement of a material fact, has been made by, or relates
to information supplied by, such Indemnifying Party or the
Indemnified Parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set
forth in paragraph 7(c) above, any legal or other fees or
expenses reasonably incurred by such party in connection with any
investigation or proceeding.
8. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder
which is underwritten unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting
arrangements approved by the Company and other Person or Persons
entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, share
custody agreements, indemnities, underwriting agreements and
other documents required under the terms of such underwriting
arrangements.
9. Definitions.
(i) "Common Stock" means the Company's Common Stock, par value
$0.001 per share.
(ii) "Person" means any natural person and any corporation,
partnership, limited liability company or other business entity.
(iii) "Registrable Securities" means, with respect to Holder,
(i) the Company's Common Stock issued to Holder upon conversion
of the Convertible Note, and (ii) any Common Stock or other
equity securities issued or issuable with respect to the
securities referred to in clause (i) by way of a stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
As to any particular Registrable Securities, such securities will
cease to be Registrable Securities (A) when they have been
distributed to the public pursuant to an offering registered
under the Securities Act or (B) after the Registrable Securities
held by Holder may be sold in 90-day period pursuant to Rule 144
under the Securities Act (or any similar rule then in effect).
II. AGREEMENTS OF THE COMPANY
1. Financial Statements.
Until such date as HP no longer holds the Notes or any
shares of the Underlying Common Stock, and subject to paragraph
1(c) below, the Company will furnish the following reports to HP:
(a) Annual. As soon as practicable after the end of each
fiscal year of the Company, and in any event within ninety (90)
days thereafter, (i) a consolidated balance sheet of the Company
and its subsidiaries, if any as at the end of such fiscal year,
and consolidated statements of income and cash flows of the
Company and its subsidiaries, if any, for such year, prepared in
accordance with GAAP consistently applied and setting forth in
each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and certified by independent
public accountants or recognized national standing selected by
the Company; and (ii) a statement setting forth any plan by the
company to open any additional offices or materially increase its
activities or move any material collateral to an office in the
subsequent quarter ("Expansion Plans"). The Company shall
deliver to HP such audited financial statements as at and for the
fiscal year ended December 31, 1998 by April 15, 1999.
(b) Quarterly. As soon as practicable after the end of the
first, second and third quarterly accounting periods in each
fiscal year of the Company, and in any event within forty-five
(45) days thereafter, (i) a consolidated balance sheet of the
Company and its subsidiaries, if any, as of the end of each
quarterly period, and consolidated statements of income and cash
flows of the company and its subsidiaries, if any, for such
period and for the current fiscal year to date, prepared in
accordance with GAAP (except that such financial statements need
not contain footnotes required by GAAP or normal year-end closing
adjustments), all in reasonable detail and certified by the chief
financial officer of the Company and (ii) a statement of its
expansion plans for the subsequent quarter.
(c) Exchange Act Compliance. For so long as the Company
remains subject to the reporting requirements of Section 12 or
Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), the Company shall not be required to comply with
the requirements of paragraphs 1(a) and 1(b) above if the Company
delivers to Holder the reports required by the Exchange Act.
2. Board Observer Rights.
(i) Following a conversion of the Convertible Note,
such date as Holder owns less than five percent (5%) of the
Company's outstanding Common Stock on an as-converted basis, and
(ii) prior to conversion of the Convertible Note, the date of
repayment in full of the principal and all unpaid accrued
interest on the Notes, the Company shall invite Holder to send,
at Holder's expense, one representative who is reasonably
acceptable to the Company to attend (in person or by
teleconference), in a non-voting observer capacity, all meetings
of its Board of Directors and any committees thereof. The Holder
representative shall initially be Xxxxx Xxxxx. The Company shall
give the Holder representative copies of all notices, agendas,
minutes and consents that it provides to directors in connection
with regular or special meetings of the Board of Directors of the
Company; provided, however, that the Company reserves the right
to exclude such representative from access to any of such
materials or meetings or portions thereof if (a) the Company
reasonably considers any such material or portion thereof to be a
trade secret or similar confidential information, (b) the Company
believes upon advice of counsel that such exclusion is reasonably
necessary to preserve the attorney-client privilege, or (c) in
the judgment of a majority of the directors of the Company, such
access would materially impair the due consideration by the Board
of Directors of any matter. Holder agrees, on behalf of itself
and any representative, to hold in confidence and trust and not
to use or disclose any confidential information provided to or
learned by it in connection with its rights under this provision.
III. AGREEMENTS OF HOLDER
1. Transfer Restrictions.
Holder shall not transfer the beneficial ownership of
the Notes or the Underlying Common Stock except (i) pursuant to
registered public offering of Common Stock; (ii) to any person or
"group" (for purposes of Section 13(d) of the Exchange Act) that,
after giving effect to such transfer (and any series of related
transfers), will beneficially own less than 9.9% of the shares of
Common Stock then outstanding; (iii) upon the approval of the
Board of Directors of the Company, including a majority of the
independent directors; (iv) in connection with any business
combination, transaction or tender or exchange offer approved or
supported by the Board of Directors of the Company, including a
majority of independent directors; (v) pursuant to a bona fide
pledge of or the granting of a security interest or other lien in
the Notes or Underlying Common Stock in a transaction which
otherwise would not require consent hereunder; (vi) transfers to
affiliated entities, provided that such transferee agrees to
become similarly bound by this Agreement; and (vii) upon a
liquidation or dissolution of the Company or a transfer which is
effected by operation of law.
2. Purchase Restrictions.
Holder shall not, without the approval of the
Company's Board of Directors, including a majority of the
independent directors, acquire any additional beneficial
ownership in the Company's Common Stock or any other equity
security convertible into or exercisable for Common Stock;
provided, however, that approval of the Company's Board of
Directors shall not be required if acquisition does not cause
Holder's total beneficial ownership in the Company's Common Stock
to exceed the percentage of the Company's Common Stock held by
Holder at the time of full conversion of the Note.
3. Exchange Act Compliance.
Holder acknowledges and agrees that it shall bear
sole responsibility for compliance with the reporting
requirements of and obligations imposed Sections 13(d) and 13(g)
and Section 16 of the Exchange Act, and that Holder shall be
solely responsible for all expenses incurred in connection with
such compliance.
IV. XXXX-XXXXX-XXXXXX FILING
1. Best Efforts to Comply.
If applicable, at the time of conversion of all or
any portion of the Convertible Note into shares of the Company's
Common Stock, Holder and the Company shall use their best efforts
to comply with any applicable requirements under the Xxxx-Xxxxx-
Xxxxxx Act relating to filing and furnishing information to the
Department of Justice and the Federal Trade Commission,
including, but not limited to, the following:
(1) assisting in the preparation and filing of the
"Antitrust Improvements Act Notification and Report Form for
Certain Mergers and Acquisitions" and taking all other action
required by 16 C.F.R. Parts 801-803 (or any successor form or
Regulation);
(2) complying with any additional request for documents or
information made by the Department of Justice or the Federal
Trade Commission or by a court; and
(3) causing all affiliated persons of the "ultimate parent
entity" of the party within the meaning of the Xxxx-Xxxxx-Xxxxxx
Act to cooperate and assist in the filing and compliance.
2. Exchange of Information.
Holder and the Company shall exchange information as
may reasonably be requested by the other in connection with the
matters referred to in this Article IV.
3. Expenses.
Each party shall bear and pay its own legal fees,
expenses and filing fees in connection with an Xxxx-Xxxxx-Xxxxxx
Act filing made pursuant to this Article IV.
V. MISCELLANEOUS
1. Amendments and Waivers
. The provisions of this Agreement may be amended or
waived only upon the prior written consent of the Company and
Holder.
2. Successors and Assigns
. All covenants and agreements in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the
benefit of the respective successors and permitted assigns.
3. Severability
. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
this Agreement.
4. Counterparts
. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts
taken together will constitute one and the same agreement.
5. Descriptive Headings
. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of
this Agreement
6. Governing Law
. This Agreement shall be governed by and construed in
accordance with the internal law, and not the law of conflicts,
of the State of California.
7. Notices
. Any notice, request, or other communication required
or permitted hereunder shall be in writing and shall be deemed to
have been duly given on the date of delivery if personally
delivered, or the date of being faxed if sent by confirmed fax,
on the first business day after being sent if sent by recognized
overnight courier, and on the third business day after being
mailed if sent by registered or certified mail, postage prepaid,
addressed as follows:
if to Holder, to:
Hewlett-Packard Company
Financing & Complements Group
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Manager
Fax: (000) 000-0000
with a copy to:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
XX: 2OBQ
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Fax: (000) 000-0000
if to the Company to:
The viaLink Company
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
8. Entire Agreement.
This Agreement, together with the other Transaction
Documents, constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter
hereof and thereof and supersedes any and all prior agreements
relating to the subject matter.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this
Shareholder Agreement as of the date first written above.
COMPANY:
THE VIALINK COMPANY
By: _/s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: CEO
HOLDER:
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: VP & General Manager, FCG
