EXHIBIT 10.1
HP- VIALINK - CONFIDENTIAL
SECOND GLOBAL AMENDMENT AGREEMENT
THIS SECOND GLOBAL AMENDMENT AGREEMENT ("Agreement") is entered into as
of September __, 2002, by and between HEWLETT-PACKARD COMPANY, a Delaware
corporation ("HP"), and THE VIALINK COMPANY, a Delaware corporation (the
"Company").
Recitals
A. HP and Company are parties to (i) that certain Master Lease No.
MA001360 (the "Original Master Lease"), as amended from time to time (the
"Master Lease Agreement"), (ii) that certain Financing Agreement No. 27058A, as
amended from time to time ("Lease Schedule No. 27058A"), including pursuant to
that certain Settlement, Amendment and Mutual Release Agreement dated as of
November 13, 2001 ("First Settlement Agreement"), that certain Second Settlement
and Amendment Agreement dated as of January 17, 2002 (the "Second Settlement
Agreement"), and that certain Global Amendment dated July 10, 2002 (the "Global
Amendment"),(iii) that certain Financing Agreement No. 27058B, as amended from
time to time ("Lease Schedule No. 27058B"), including pursuant to the First
Settlement Agreement, the Second Settlement Agreement, and the Global Amendment,
(iv) that certain Financing Agreement No. 25683A, as amended from time to time
("Lease Schedule No. 25683A"), including pursuant to the First Settlement
Agreement, the Second Settlement Agreement, Amendment 1 dated December 7, 2001,
Amendment 2 dated January 7, 2002, that certain Letout Confirmation Form dated
as of January 18, 2002, and the Global Amendment, and (v) that certain Financing
Agreement No. 25683B, as amended from time to time, including pursuant to the
Global Amendment ("Lease Schedule No. 25683B"; Lease Schedule Nos. 27058A,
27058B, 25683A, and 25683B shall be referred to collectively as the "Lease
Schedules"; the Lease Schedules and the Master Lease Agreement shall be referred
to collectively as the "Lease Agreements").
B. HP and Company are parties to that certain Service Level Agreement
for Operations Services dated as of June 3, 1999, as amended from time to time,
including pursuant to that certain Addendum 69d to Service Agreement for HP
Operations Services dated August 8, 2001, the First Settlement Agreement, the
Second Settlement Agreement, that certain Addendum 69e to Service Agreement for
Operations Services dated January 18, 2002, and the Global Amendment
(collectively, the "Service Agreement").
C. HP and Company are parties to those certain Support Agreement Nos.
3112M8401, 3112M8391, 3112M8361, 0000X0000, 3112M8411, 3112M8381, 0000X0000,
3185G9881, and 3182B2621, in each case, as amended from time to time, including
pursuant to the First Settlement Agreement, the Second Settlement Agreement,
that certain Addendum 69e to Service Agreement for Operations Services dated
January 18, 2002, and the Global Amendment (collectively, the "Support
Agreements").
D. HP and the Company are parties to that certain Common Stock Purchase
Warrant dated as of April 10, 2001, executed by the Company in favor of HP, as
amended from time to time, including
HP- VIALINK - CONFIDENTIAL
pursuant to the First Settlement Agreement (the "Warrant").
E. The Company and HP are parties to that certain Shareholder Agreement
dated as of February 4, 1999, as amended from time to time, including pursuant
to that certain Amendment No. 1 to Shareholder Agreement dated as of March 22,
2000, Amendment No. 2 to Shareholder Agreement dated as of April 10, 2001, and
the First Settlement Agreement (collectively, the "Shareholder Agreement"). The
Warrant, the Lease Agreements, the Service Agreement, the Support Agreements,
the Shareholder Agreement, and all other documents and instruments executed in
connection therewith shall be referred to collectively as the "Transaction
Documents").
F. As of the date hereof, the Company has failed to make certain
payments under the Lease Agreements in the aggregate amount of $358,483.57 (the
"Payment Defaults").
G. The Company has requested that HP restructure the Company's
obligations under the Lease Agreements to facilitate its continued operation as
a going concern. In response to the Company's request, HP is willing to make
certain amendments to the Transaction Documents on the terms and conditions
specified herein.
Agreement
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto agree,
covenant and warrant as follows:
1. Settlement Payment. In consideration of the agreements set forth in this
Agreement, the Company shall pay to HP, in cash, a fully-earned and
non-refundable settlement payment of $350,000 within 10 days of closing by the
Company of a strategic or financial transaction resulting in proceeds in excess
of $1,000,000 that are immediately payable to the Company (the "Settlement
Payment") and, in any event, on or before September 16, 2002.
2. Amendments to Lease Agreements. On the Effective Date, the Lease Agreements
shall be amended as follows:
2.1 Termination of Buyout and Repurchase Provisions. To the extent not
previously exercised and consummated by the Company as of the date hereof, the
buyout option of the Company set forth in Section 2(a) of the Second Settlement
Agreement, and the right to purchase of the Company set forth in Section 3(d) of
the Second Settlement Agreement shall be immediately terminated.
2.2 Provisions Relating to the Due Date of Lease Payments.
Notwithstanding any contrary provision contained in the Lease Agreements, each
monthly payment due under the Lease Agreements shall be automatically due and
payable on the fifth business day of each month, without the need for further
invoicing to the Company, and shall be remitted by the Company to the following
lockbox address: Hewlett-Packard Company, Mailstop 505, 00 Xxxxxxxxx Xxxxxx
Xxxx., Xxxxxxx, Xxxxxxx, 00000 .
2
HP- VIALINK - CONFIDENTIAL
2.3 Provisions Relating to Lease Schedules and Payment Terms.
Notwithstanding any contrary terms contained in any Lease Schedule, (a) the
equipment subject to Lease Schedules 27058A and 27058B as of the date hereof
(collectively, the "27058 Equipment") shall be deleted from each such schedule
and added to Lease Schedule 25683A and Lease Schedule 25683A shall be deemed
restated to reflect all of the equipment set forth on EXHIBIT A hereto and
identified as "ITEMS REMAINING ON LEASE" in the heading thereon; (b) the
obligations of the Company to HP under Lease Schedules 27058A, 27058B, and
25683B shall be deemed satisfied in full; (c) the schedule of the monthly
payments for Lease Schedule 25683A shall be amended on the terms set forth on
EXHIBIT B hereto, and (d) Section 4(i) of Lease Schedule 25683A that provides
for "Purchase, Renewal, Return Options" shall be amended by (i) unselecting the
purchase option referred to "fair market value" and (ii) and selecting the
purchase option that provides "One Dollar ($1.00) for each Product" in lieu
thereof.
2.4 Waiver of Events of Default. On the Effective Date, HP shall be
deemed to waive the Payment Defaults and shall agree that, that with respect to
the Payment Defaults only, no Default or Event of Default shall be deemed to
have occurred as a result thereof under any Transaction Document.
3. Amendments to Global Amendment. On the Effective Date, the Global Amendment
shall be amended as follows:
3.1 Section 2.1. Section 2.1 of the Global Amendment shall be
superseded by the terms of this Agreement and shall have no further effect.
3.2 Section 4.1. Section 4.1 of the Global Amendment shall be
superseded by the terms of this Agreement and shall have no further effect.
3.3 Section 4.2. The Company's failure to satisfy the provisions set
forth in Sections 4.2 (a), (c), (e), (f), or (g) of the Global Amendment shall
not result in a Default or Event of Default under any Transaction Document.
4. Equity Provisions.
4.1 Amendment to Warrant. On the Effective Date, the introductory
paragraph of the Warrant shall be amended by deleting the reference to "$0.10"
contained therein and substituting "$0.00" in lieu thereof.
4.2 Issuance of Additional Shares. On or before the Effective Date, the
Company, in consideration for the agreements contained herein, shall issue in
favor of HP, and HP shall be deemed to be a holder of 615,342 shares of common
stock of the Company (the "Additional Shares"), with all of the rights and
privileges attendant to the holders of common stock of the Company and such
further rights and privileges set forth in this Agreement and under the
Shareholder Agreement.
4.3 Delivery of Stock Certificates. On or before the Effective Date,
the Company shall deliver
3
HP- VIALINK - CONFIDENTIAL
to HP certificates evidencing the Additional Shares (the "Stock Certificates").
4.4 Amendment to Shareholder Agreement. On the Effective Date, the
Shareholder Agreement shall be amended by deleting Section I.9(iii) thereof in
its entirety and substituting the following in lieu thereof:
"Registrable Securities" means, with respect to Holder, (i)
the Company's Common Stock issued to Holder pursuant to any
Securities Purchase Agreement, including, but not limited to,
those shares of the Company's Common Stock issued pursuant to
that certain Securities Purchase Agreement, dated March 22,
2000 (the "Securities Purchase Agreement"), and those shares
of the Company's Common Stock issuable upon the exercise of
the Warrants purchased by Holder pursuant to the Securities
Purchase Agreement; (ii) the Company's Common Stock issued to
Holder upon conversion of the Convertible Note; (iii) the
Company's Common Stock issued to Holder upon conversion of
that certain Secured Convertible $3,807,812.59 Promissory Note
dated April 10, 2001 issued by the Company and payable to
Holder; (iv) the Company's Common Stock issued to Holder upon
exercise of that certain Common Stock Purchase Warrant issued
by the Company for the benefit of Holder dated April 10, 2001;
(v) the Company's Common Stock issued to Holder pursuant to
the terms of that certain Second Global Amendment Agreement
dated as of September __, 2002, and (vi) any Common Stock or
other equity securities issued or issuable with respect to the
securities referred to in the preceding clauses (i) through
(v) 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 periods pursuant to Rule 144
under the Securities Act (or any similar rule then in effect).
5. Reservation of Rights. HP reserves the right, in its discretion, to exercise
any or all of its rights and remedies under the Transaction Documents as a
result of any Events of Default that may occur after the date hereof, and HP has
not waived any of such rights or remedies, and nothing in this Agreement, and no
delay on its part in exercising any such rights or remedies, should be construed
as a waiver of any such rights or remedies.
6. Representations, Warranties and Covenants. The Company hereby represents,
warrants and covenants with and to HP as follows:
6.1 Representations in Transaction Documents. Each of the
representations and warranties made by or on behalf of the Company to HP in any
of the Transaction Documents was true and correct when made and in all material
respects is true and correct on and as of the date of this Agreement with the
same full force and effect as if each of such representations and warranties had
been made by the
4
HP- VIALINK - CONFIDENTIAL
Company on the date hereof and in this Agreement.
6.2 Authorization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware. The
Company has the requisite corporate power to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Company and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid, and binding obligation of the Company
and is enforceable against the Company in accordance with its terms except that
such enforcement may be subject to bankruptcy, conservatorship, receivership,
insolvency, moratorium, or similar laws affecting creditors' rights generally.
6.3 No Conflict. The execution and delivery and performance of this
Agreement by the Company will not violate any requirement of law or contractual
obligation of the Company and will not result in, or require, the creation or
imposition of any lien on any of its properties or revenues.
6.4 Issuance of Shares. The Board of Directors of the Company has duly
authorized the issuance of the Additional Shares, and duly reserved such shares
for issuance by the Company. The Additional Shares, when issued, sold and
delivered in accordance with the terms and for the consideration expressed in
this Agreement, will be duly and validly issued, fully paid and nonassessable.
No person has preemptive rights with respect to any Additional Shares upon
issuance thereof to HP pursuant to any of the Company's corporate documents or
material agreements. The offer, sale and issuance of the Additional Shares
constitute transactions exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and all applicable
state securities laws.
6.5 Capitalization. All of the authorized and issued capital stock of
the Company is set forth in the Capitalization Disclosure Schedule attached
hereto as Exhibit E (the "Capitalization Disclosure Schedule"). All of the
outstanding equity securities of the Company have been duly authorized and are
validly issued, fully paid and nonassessable. Except as expressly referenced in
the Capitalization Disclosure Schedule, there are as of the date of this
Agreement, no options, warrants or rights to purchase equity securities
authorized, issued or outstanding, nor is the Company obligated in any other
manner to issue shares of its equity securities. The Capitalization Disclosure
Schedule sets forth with respect to such options, warrants and other rights, the
grant date, vesting schedule, terms and exercise period thereof; provided, that
to the extent such options, warrants or other rights are granted pursuant to an
employee stock option plan, the Capitalization Disclosure Schedule shall set
forth the number of shares issuable under such employee stock option plan and
the general terms of the rights provided to employees, rather than the details
relating to each employee participating in such employee stock option plan. To
the extent the Company is privately held, the Capitalization Disclosure Schedule
sets forth a list of the holders of record of the issued and outstanding shares
of the Company's equity securities. Except as expressly referenced in the
Capitalization Disclosure Schedule, there are no restrictions on the transfer of
equity securities of the Company, other than those imposed by the Company's
Certificate of Incorporation and Bylaws as of the date hereof, or relevant state
and federal securities laws, and no holder of any equity
5
HP- VIALINK - CONFIDENTIAL
security of the Company is entitled to preemptive or similar statutory or
contractual rights. All outstanding securities of the Company were issued in
compliance with all applicable federal and state securities laws. Except as
expressly referenced in the Capitalization Disclosure Schedule, no person or
entity has the right to demand or other rights to cause the Company to file any
registration statement under the Securities Act, relating to any equity
securities of the Company presently outstanding or that may be subsequently
issued, or any right to participate in any registration statement.
6.5 Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental authority or other
person or entity (including without limitation the shareholders of any person or
entity) is required in connection with the execution and delivery of this
Agreement, and the performance and consummation of the transactions contemplated
hereby.
7. Representations and Warranties of HP. HP represents and warrants to the
Company that:
7.1 Authority. The execution, delivery and performance by HP of this
Agreement and the consummation by HP of the transactions contemplated thereby
are within the power of HP and have been duly authorized by all necessary
actions on the part of HP. This Agreement has been duly executed and delivered
by HP and constitutes, or will constitute, a legal, valid and binding obligation
of HP, enforceable against HP in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and general principles
of equity.
7.2 Securities Law Investment Representations. HP acknowledges that the
Additional Shares have not been and will not be registered under the Securities
Act, or the securities laws of any state of the United States or any other
jurisdiction, and except as provided in the Shareholder Agreement, HP has no
right to require such registration. HP is purchasing the Additional Shares for
HP's own account for investment and not for the interest of any other person and
not for resale to others or with a view to or for sale in connection with any
distribution thereof. HP has such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of its
investment and to bear the economic risk of such investment for an indefinite
period of time. HP is an Accredited Investor (as that term is defined in Rule
501 of Regulation D promulgated under the Securities Act). HP will not resell or
otherwise dispose of the Additional Shares or any interest therein at any time
unless (i) such securities are subsequently registered under the Securities Act
and appropriate state securities laws, or (ii) an exemption from registration is
available and, if the Company requests, the Company receives an opinion of
counsel reasonably satisfactory to it that such exemption is available, and the
written approval of the Company to any transfer has first been obtained.
8. Conditions to Effectiveness. The effectiveness of the terms and provisions of
this Agreement shall be subject to satisfaction of each of the following
conditions on or before September 16, 2002 (the date upon which all such
conditions have been satisfied, the "Effective Date" ):
8.1 receipt by HP and the Company of a copy of this Agreement duly
executed by HP and the Company;
6
HP- VIALINK - CONFIDENTIAL
8.2 receipt by HP by wire transfer of the Settlement Payment pursuant
to the wire instructions set forth on EXHIBIT C hereto;
8.3 receipt by HP of the Stock Certificates;
8.4 receipt by HP of a duly executed certificate of the Secretary of
the Company certifying as of the date hereof that (i) attached thereto is a
certified copy of the Articles of Incorporation of the Company that are in full
force and effect and have not been amended, supplemented, revoked or repealed
since the date of such certification; (ii) attached thereto is a true and
correct copy of the Bylaws of the Company as in effect as of the date hereof;
(iii) attached thereto is a true and correct copy of resolutions duly adopted by
the Board of Directors of the Company authorizing the execution, delivery, and
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby; (iv) there are no proceedings for the
dissolution or liquidation of the Company that have commenced or, to the
knowledge of the Company, been threatened; and (v) a specimen signature of each
officer of the Company who has executed or will execute this Agreement, or any
other document required under this Agreement is included in this certificate,
and each such officer was duly elected, qualified, and incumbent as of the date
such officer executed such document or documents (the "Secretary's
Certificate"); and
8.5 receipt by HP of an opinion of counsel of the Company with respect
to the issuance of the Additional Shares in substantially the form of EXHIBIT D
attached hereto.
In the event that the preceding conditions to effectiveness are not satisfied on
or before September 16, 2002, this Agreement shall be immediately terminable at
the option of HP.
9. Revival of Obligations. Notwithstanding any contrary provision contained in
this Agreement, the Company acknowledges and agrees that in the event that HP
shall hereafter be required to refund or disgorge the Settlement Payment, any
portion thereof, or any other payment made pursuant hereto, then as to the
amount repaid or disgorged, the liability of the Company shall be automatically
revived, reinstated and restored in such amount or amounts and shall exist as
though such Settlement Payment, portion thereof, or other payment had never been
paid to HP.
10. Miscellaneous.
10.1 Effect of this Agreement. Upon the Effective Date, (i) each
reference in any Transaction Document to such agreement shall mean and be a
reference to such agreement as amended by this Agreement, and (ii) each
reference in any Transaction Document to any other Transaction Document shall
mean and be a reference to such agreement as amended by this Agreement. To the
extent of conflict between the terms of this Agreement and the other Transaction
Documents, the terms of this Agreement shall control. Except as expressly
provided in this Agreement, the execution, delivery, and effectiveness of this
Agreement shall not (i) limit, impair, constitute a waiver of, or otherwise
affect any right, power, or remedy of HP under any of the Transaction Documents,
(ii) constitute a waiver of any provision in any of the Transaction Documents,
or (iii) alter, modify, amend, or in any way
7
HP- VIALINK - CONFIDENTIAL
affect any of the terms, conditions, obligations, covenants, or agreements
contained in any of the Transaction Documents, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
10.2 Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
10.3 Successors and Assigns. The rights and obligations of the Company
and HP under this Agreement shall be binding upon and benefit the successors,
assigns, heirs, administrators and transferees of the parties. The Company shall
not be entitled to assign, transfer or delegate any of its rights, obligations
or liabilities hereunder without the prior written consent of HP.
10.4 Survival of Representations and Warranties. All representations
and warranties made in this Agreement or any other document furnished in
connection with this Agreement shall survive the execution and delivery of this
Agreement and the other documents, and no investigation by HP or any closing
shall affect the representations and warranties or the right of HP to rely upon
them.
10.5 Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement.
10.6 Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. Delivery of an executed counterpart of a signature page to
this letter agreement by facsimile transmission shall be effective as delivery
of a manually executed counterpart thereof.
10.7 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California applicable
to contracts made and performed in such state, without regard to the principles
thereof regarding conflict of laws.
10.8 Waivers and Agreements. No provision of this Agreement may be
amended or modified without the written consent of the Company and HP. HP shall
not be deemed, by any act or omission, to have waived any of its rights or
remedies unless such waiver is in writing and signed by HP and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event. No delay or omission of HP in exercising any
right, whether before or after a default, shall impair any such right or shall
be construed to be a waiver of any right or default.
10.9 Confidentiality. This Agreement shall be subject to the terms and
conditions of the NonDisclosure Agreement, as amended from time to time, between
HP and the Company.
[Remainder of Page Intentionally Left Blank]
8
HP- VIALINK - CONFIDENTIAL
IN WITNESS WHEREOF, this Second Global Amendment Agreement is executed and
delivered as of the day and year first above written.
"COMPANY"
THE VIALINK COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
"HP"
HEWLETT-PACKARD COMPANY
By:
-------------------------------
Name:
Title:
9
