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EXHIBIT 4.4
SECURITIES PURCHASE AGREEMENT
BY AND BETWEEN
THE viaLINK COMPANY
AND
i2 TECHNOLOGIES, INC.
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TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE OF SECURITIES.....................................1
1.1 Purchase and Sale of Securities..................................1
ARTICLE II CLOSING............................................................2
2.1 The Closing......................................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................2
3.1 Organization, Standing and Power.................................2
3.2 Capital Structure................................................2
3.3 Authority........................................................3
3.4 SEC Documents; Financial Statements..............................4
3.5 Absence of Undisclosed Liabilities...............................4
3.6 Broker's and Finders' Fees.......................................4
3.7 Board Approval...................................................5
3.8 No Material Adverse Change.......................................5
3.9 Litigation.......................................................5
3.10 Representations Complete.........................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................5
4.1 Corporate Organization...........................................5
4.2 Authorization....................................................5
4.3 No Violation.....................................................6
4.4 Brokers and Finders..............................................6
4.5 Corporate Approval...............................................6
4.6 Investment Intent................................................6
4.7 Access to Information............................................6
4.8 Accredited Investor..............................................6
4.9 Restricted Securities............................................6
4.10 Further Limitations on Disposition...............................7
ARTICLE V COVENANTS...........................................................7
5.1 Further Assurances...............................................7
5.2 Board Representation.............................................8
5.3 Right of First Refusal...........................................8
5.4 Market Stand-Off.................................................9
5.5 Listing of Common Stock..........................................9
5.6 Standstill Agreement.............................................9
ARTICLE VI DELIVERIES AT CLOSING.............................................10
6.1 Warrant to Purchase Common Stock................................10
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6.2 Registration Rights Agreement...................................10
6.3 Stock Certificate...............................................10
6.4 Legal Opinion...................................................10
6.5 Payment of Consideration........................................12
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION......12
7.1 Survival of Representations.....................................12
7.2 Statements as Representations...................................12
7.3 Indemnification by the Company..................................12
7.4 Indemnification by Purchaser....................................13
7.5 Limitation of Liability.........................................13
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................13
8.1 Amendment and Modifications.....................................13
8.2 Waiver of Compliance............................................13
8.3 Expenses........................................................13
8.4 Remedies Waiver.................................................14
8.5 Notices.........................................................14
8.6 Assignment......................................................15
8.7 Publicity.......................................................15
8.8 Severability....................................................15
8.9 Arbitration of Disputes.........................................15
8.10 Governing Law...................................................16
8.11 Counterparts....................................................16
8.12 Headings........................................................16
8.13 Third Parties...................................................16
8.14 Further Assurances..............................................16
8.15 Schedules.......................................................16
8.16 Entire Agreement................................................16
LIST OF SCHEDULES
Company Disclosure Schedule
Purchaser Disclosure Schedule
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("AGREEMENT") is made and entered
into as of October 12, 1999, by and between THE viaLINK COMPANY, an Oklahoma
corporation (the "COMPANY"), and i2 TECHNOLOGIES, INC., a Delaware corporation
("PURCHASER").
RECITALS
WHEREAS, the Company is authorized to issue shares of the Company's
$0.001 par value common stock ("COMMON STOCK") and the warrant to purchase
shares of Common Stock described herein;
WHEREAS, in connection with and in consideration for the payment by
Purchaser to the Company of $5,000,000 at Closing (as hereinafter defined), the
Company shall issue to Purchaser (i) 223,884 shares (the "SHARES") of Common
Stock and (ii) a warrant to purchase an additional 186,567 shares of the
Company's Common Stock (the "WARRANT SHARES") at an exercise price of $26.80
per share (the "WARRANT"), exercisable at any time on or before the date which
is two years following the Closing, all as more fully described herein and the
attachments hereto; and
WHEREAS, Purchaser and the Company have on this date executed and
entered into certain other agreements to set forth their mutual agreements
regarding (i) the marketing and sale of products and services and certain other
matters, in the form of an Alliance Agreement and a Software License, and (ii)
the registration of the Shares and the Common Stock issuable upon exercise of
the Warrant, in the form of a Registration Rights Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations,
warranties and agreements herein contained, on the Closing Date, the Company
shall issue to Purchaser, and Purchaser shall acquire from the Company, the
Shares and the Warrant free and clear of all liens, security interests,
options, rights, mortgages, pledges, restrictions on transferability of any
type (other than (i) restrictions on transferability as may be applicable under
federal and state securities laws, (ii) as set forth herein or therein and/or
(iii) those created by Purchaser) and Purchaser shall pay on the Closing Date
to the Company $5,000,000 (the "CASH CONSIDERATION") by wire transfer to such
account as is designated by the Company to Purchaser in writing.
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ARTICLE II
CLOSING
2.1 The Closing. The consummation of the sale and purchase of
the Shares and the Warrant referred to in Section 1.1 (the "CLOSING") shall
take place on October 12, 1999 at the offices of Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C., 5400 Renaissance Tower, 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, or at such
other date, time or place as the parties hereto mutually agree, either verbally
or in writing. Such date is referred to herein as the "CLOSING DATE," and the
Closing shall be deemed to be effective as of 9:00 a.m., Central Time, on the
Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in a document of even date herewith and delivered
by the Company to Purchaser prior to the execution and delivery of this
Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents and
warrants to Purchaser as follows:
3.1 Organization, Standing and Power. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The Company has the corporate power
to own, lease and operate its properties and to carry on its business as now
being conducted and as proposed to be conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the failure to
be so qualified and in good standing would have a material adverse effect on
the Company. The Company is not in violation of any of the provisions of its
Certificate of Incorporation or Bylaws.
3.2 Capital Structure. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock, par value $0.001 per
share and 10,000,000 shares of preferred stock, par value $0.001 per share, of
which there were issued and outstanding as of the close of business on
September 30, 1999, 3,307,318 shares of Common Stock and no shares of preferred
stock. All outstanding shares of Common Stock have been duly authorized,
validly issued, fully paid and are nonassessable and free of any liens or
encumbrances other than any liens or encumbrances created by or imposed upon
the holders thereof and have been issued in compliance with all federal and
state securities laws. The Company has no subsidiaries. Except as set forth in
Section 3.2 of the Company Disclosure Schedule, there are no (a) options,
warrants, stock appreciation rights or other similar rights, agreements,
arrangements or commitments of any character obligating the Company to issue or
sell shares of its capital stock, (b) notes, bonds, debentures or other
indebtedness of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
the shareholders of the Company may vote or (c) outstanding contractual
obligations of the Company to repurchase, redeem or otherwise acquire any
shares of Common Stock or any other capital stock of, or any equity interest
in, the Company. The Shares, the Warrant and the Warrant Shares (collectively,
the "SECURITIES") have been duly authorized for issuance and sale to the
Purchaser pursuant to this Agreement and are validly issued. The Shares are,
and, when issued pursuant to the terms and conditions set forth in the Warrant,
the Warrant Shares will be, fully paid and non-assessable, and no holder of
Securities is or will be subject to personal
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liability with respect to the obligations of the Company by reason of being
such a holder. The Shares and the Warrant are, and the Warrant Shares, when
issued, shall be, free of preemptive rights or rights of first refusal created
by statute, the Company's Certificate of Incorporation or Bylaws or any
agreement to which the Company is a party or by which it is bound and, based on
the representations of Purchaser contained in Sections 4.6, 4.7 and 4.8 of this
Agreement, are and shall be issued in compliance with all federal and state
securities laws. Except for Form D filings required to perfect exemptions under
applicable federal and/or state securities laws and the filing of an
application to list additional shares of Common Stock with the Nasdaq SmallCap
Market, no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority
or agency, domestic or foreign is necessary or required in connection with the
due authorization, execution and delivery of the Operative Agreements (as
hereinafter defined) or for the offering, issuance or sale of the Securities.
The form of certificate that will be used to evidence the Shares will comply in
all material respects with all applicable statutory requirements, with any
applicable requirements of the Certificate of Incorporation and Bylaws of the
Company and with the requirements of the Nasdaq SmallCap Market.
3.3 Authority. The Company has corporate power and authority
to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement, the Alliance Agreement, the Software License and
the Warrant (collectively, the "OPERATIVE AGREEMENTS") and to consummate the
transactions contemplated by the Operative Agreements. The Company has taken
all action required by law, its Certificate of Incorporation and Bylaws or
otherwise to authorize the execution and delivery of this Agreement and the
other Operative Agreements and the consummation of the transactions
contemplated hereby and thereby. The Operative Agreements have been duly
executed and delivered by the Company. This Agreement and the other Operative
Agreements are valid and binding agreements of the Company enforceable in
accordance with their terms, except that: (a) the enforceability of this
Agreement and the other Operative Agreements may be subject to general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law; (b) the enforceability of this Agreement
and the other Operative Agreements is subject to and may be limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium, and other
similar laws relating to or affecting the rights of creditors generally; and
(c) any rights to indemnification and contribution may be limited by federal or
state securities laws and public policy considerations. The execution and
delivery of this Agreement and the other Operative Agreements does not, and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) and compliance by the Company with its
obligations under the Operative Agreements (a) shall not, with or without
notice or lapse of time, or both, conflict with or constitute a breach of, or
default or acceleration event under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to (i) any provision of the Certificate of Incorporation or Bylaws of
the Company or (ii) any material mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or its properties or assets. Assuming the accuracy of the
representations and warranties of Purchaser in Sections 4.6, 4.7 and 4.8 of
this Agreement and except as expressly contemplated by this Agreement or the
agreements, instruments and documents contemplated hereby, no consent, approval
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or
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other governmental authority (each a "GOVERNMENTAL ENTITY"), is required by or
with respect to the Company or in connection with the execution and delivery of
this Agreement or the other Operative Agreements or the consummation by the
Company of the transactions contemplated hereby or thereby, and (b) will not
result in any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its properties, assets or operations.
3.4 SEC Documents; Financial Statements. The Company has made
available to Purchaser each statement, report, registration statement (with
each prospectus in the form filed pursuant to Rule 424(b) of the Securities Act
of 1933, as amended (the "SECURITIES ACT")), definitive proxy statement, and
other filing filed with the Securities and Exchange Commission ("SEC") by the
Company since December 31, 1998 (collectively, the "COMPANY SEC DOCUMENTS"). In
addition, the Company has made available to Purchaser all exhibits to the
Company SEC Documents filed prior to the date hereof. As of their respective
filing dates, the Company SEC Documents were filed on a timely basis and
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the Securities Act,
and none of the Company SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
in which they were made, not misleading except to the extent corrected by a
subsequently filed Company SEC Document. The financial statements of the
Company, including the notes thereto, included in the Company SEC Documents
(the "COMPANY FINANCIAL STATEMENTS") (i) have been prepared in accordance with
the published regulations of the SEC and in accordance with generally accepted
accounting principles ("GAAP") (except to the extent as may be indicated in the
notes thereto and with respect to interim Company Financial Statements included
in Quarterly Reports on Form 10-QSB (promulgated under the Exchange Act), as
required by Form 10-QSB) and (ii) fairly present the financial position of the
Company as of the respective dates thereof and the results of its operations
and cash flows for the periods indicated (including, in the case of any
unaudited interim financial statements, reasonable estimates of normal and
recurring year-end adjustments).
3.5 Absence of Undisclosed Liabilities. The Company has no
material obligations or liabilities of any nature (matured or unmatured, fixed
or contingent) other than (i) those set forth or adequately provided for in the
Balance Sheet included in the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended June 30, 1999 (the "COMPANY BALANCE SHEET"), (ii) those
incurred in the ordinary course of business and not required to be set forth in
the Company Balance Sheet under generally accepted accounting principles, and
(iii) those incurred in the ordinary course of business since the Company
Balance Sheet Date and consistent with past practice.
3.6 Broker's and Finders' Fees. The Company has not incurred,
nor shall it incur, directly or indirectly, any liability for brokerage or
finders' fees or agents' commissions or investment bankers' fees or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
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3.7 Board Approval. The Board of Directors of the Company has
approved this Agreement and the transactions contemplated hereby. No vote or
consent of the Company's stockholders is required for the consummation of the
transactions contemplated hereby.
3.8 No Material Adverse Change. Since the date of the Company
Balance Sheet, the Company has conducted its business in the ordinary course
and there has not occurred: (a) any material adverse change in the financial
condition, liabilities, assets or business of the Company other than continuing
operating losses and declining stock price; (b) any amendment or change in the
Certificate of Incorporation or Bylaws of the Company; or (c) any damage to,
destruction or loss of any assets of the Company, (whether or not covered by
insurance) that materially and adversely affects the financial condition or
business of the Company.
3.9 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which the Company has received
any notice of assertion against the Company which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement.
3.10 Representations Complete. None of the representations or
warranties made by the Company herein or in any Schedule hereto, including the
Company Disclosure Schedule, or certificate furnished by the Company pursuant
to this Agreement, or the Company SEC Documents, when all such documents are
read together in their entirety, contains or shall contain at the Closing any
untrue statement of a material fact, or omits or shall omit at the Closing to
state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as disclosed in a document of even date herewith and delivered
by Purchaser to the Company prior to the execution and delivery of this
Agreement (the "PURCHASER DISCLOSURE SCHEDULE"), Purchaser represents and
warrants to Company as follows:
4.1 Corporate Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser has full corporate power and authority to carry on its
business as it is now being conducted.
4.2 Authorization. Purchaser has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Purchaser has taken all action required by law, its
Certificate of Incorporation and Bylaws or otherwise to authorize the execution
and delivery of this Agreement and the other Operative Agreements and the
consummation of the transactions contemplated hereby and thereby. This
Agreement and the other Operative Agreements are valid and binding agreements
of Purchaser enforceable in accordance with their terms, except that: (a) the
enforceability of this Agreement and the other Operative Agreements may be
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and (b) the
enforceability of this Agreement and the other Operative Agreements may be
subject to or limited by bankruptcy,
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insolvency, reorganization, arrangement, moratorium, or other similar laws
relating to or affecting the rights of creditors generally.
4.3 No Violation. The execution and delivery of this
Agreement and the other Operative Agreements do not, and the consummation of
the transactions contemplated hereby and thereby shall not, conflict with, or
result in any violation of, or default under (with or without notice or lapse
of time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under (i) any provision of
the Certificate of Incorporation or Bylaws of Purchaser or (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Purchaser or its properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to Purchaser or in connection with the execution and delivery of this
Agreement or the other Operative Agreements or the consummation by Purchaser of
the transactions contemplated hereby or thereby.
4.4 Brokers and Finders. Purchaser has not incurred, nor
shall it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated hereby.
4.5 Corporate Approval. All necessary corporate actions have
been taken by Purchaser for the approval of Purchaser to enter this Agreement
and the transactions contemplated hereby. No vote or consent of the
stockholders of Purchaser is required for the consummation of the transactions
contemplated hereby.
4.6 Investment Intent. Purchaser is purchasing the Shares and
the Warrant for its own account and not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same, and does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of such securities.
4.7 Access to Information. Purchaser has received or has had
full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Securities. Purchaser
has had an opportunity to ask questions of and receive answers from the Company
and to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Purchaser or to which the
Company has access.
4.8 Accredited Investor. Purchaser is an "accredited
investor" within the meaning of SEC Rule 501 of Regulation D, as presently in
effect. The principal place of business and the principal offices of the
Purchaser are located in Irving, Texas.
4.9 Restricted Securities. Purchaser understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in
transactions not involving a public offering and that under
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such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances. In
this connection, Purchaser represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
4.10 Further Limitations on Disposition. Purchaser agrees not
to offer, sell, exchange, transfer, pledge or otherwise dispose of any of the
Securities unless at that time either:
(a) such transaction is permitted pursuant to the provisions
of Rule 144 under the Securities Act or another exemption from
registration under the Securities Act and all applicable state
securities laws;
(b) a registration statement under the Securities Act (a
"REGISTRATION STATEMENT") covering such securities proposed to be
sold, transferred or otherwise disposed of, describing the manner and
terms of the proposed sale, transfer or other disposition, and
containing a current prospectus, is filed with the SEC and all
applicable state securities law agencies and made effective under the
Securities Act and all applicable state securities laws; or
(c) an authorized representative of the SEC and all
applicable state securities law agencies shall have rendered written
advice to Purchaser (with a copy thereof and of all other related
communications delivered to the Company) to the effect that the SEC
and/or such state securities law agencies will take no action, or that
the staff of the SEC and/or such state securities law agencies will
recommend that the SEC and/or such state securities law agencies, as
applicable, take no action, with respect to the proposed offer, sale,
exchange, transfer, pledge or other disposition if consummated.
All certificates representing the Securities deliverable to Purchaser
and any certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend that such securities may only be sold
or disposed of in accordance with (i) the provisions of the Securities Act, the
rules and regulations thereunder and any applicable state securities laws, (ii)
pursuant to an effective registration statement or (iii) pursuant to an
exemption from the registration/qualification requirements of the Securities
Act and any applicable state securities laws. The Company, at its reasonable
discretion, may cause stop transfer orders to be placed with its transfer agent
with respect to the certificates for such securities but not as to the
certificates for any part of such securities as to which said legend is no
longer required.
ARTICLE V
COVENANTS
5.1 Further Assurances. Upon the terms and subject to the
conditions hereof, each of the parties hereto agrees to use commercially
reasonable efforts to take or cause to be taken all actions and to do or cause
to be done all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and shall use commercially
reasonable efforts to obtain all necessary waivers, consents and approvals and
to effect all
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necessary registrations and filings to be obtained in connection with the
transactions contemplated by this Agreement.
5.2 Board Representation. For so long as (i) Purchaser shall
beneficially own (as such term is defined for purposes of the Securities Act
and the rules and regulations thereunder) not less than 4.0% of the then issued
and outstanding Common Stock and the Alliance Agreement has not been terminated
or (ii) Purchaser shall beneficially own not less than 10.0% of the then issued
and outstanding Common Stock, the Purchaser shall have the right to designate
one nominee to the Board of Directors of the Company. The Company shall include
such nomination in all proxy and annual meeting materials provided to its
shareholders, and shall not make any competing nomination or recommend against
election of such nominee.
5.3 Right of First Refusal. Subject to the terms and
conditions specified in this Section 5.3, the Company hereby grants to the
Purchaser a right of first refusal with respect to future sales by the Company
of any shares of, or securities convertible into or exercisable for any shares
of, any class of its capital stock (collectively, "Stock"). Each time the
Company proposes to offer any Stock, the Company shall first make an offering
to the Purchaser in accordance with the following provisions:
(a) the Company shall deliver a notice by certified mail
("Notice") to the Purchaser stating (i) its bona fide intention to
offer such Stock, (ii) the quantity of such Stock to be offered, and
(iii) the price (or reasonable price range) and terms, if any, upon
which it proposes to offer such Stock;
(b) by written notification received by the Company, within
20 calendar days after giving of the Notice, the Purchaser may
irrevocably elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Stock which equals
the proportion that the number of shares of Common Stock issued and
held (including any shares issuable upon conversion of any Warrant
then held) by Purchaser bears to the total number of shares of common
stock of the Company then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities);
(c) if all Stock which Purchaser is entitled to obtain
pursuant to Section 5.3(b) are not elected to be obtained as provided
in Section 5.3(b), the Company may, during the 120-day period
following the expiration of the period provided in Section 5.3(b),
offer the remaining unsubscribed portion of such Stock to any person
or persons at a price not substantially less than, and upon terms not
substantially more favorable to the offeree than, those specified in
the Notice. If the Company does not enter into an agreement for the
sale of the Stock within such period, or if such agreement is not
consummated within 120 days of the execution thereof, the right
provided hereunder shall be deemed to be revived and such Stock shall
not be offered unless first reoffered to the Purchaser in accordance
herewith;
(d) the right of first refusal in this Section 5.3 shall not
be applicable (i) to the issuance or sale of shares of common stock
(or options therefor) to employees, officers, directors, advisors or
consultants of the Company for the primary purpose of soliciting or
retaining their employment, (ii) the issuance of securities pursuant
to the conversion or
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exercise of convertible or exercisable securities, (iii) the issuance
of securities in connection with a bona fide business acquisition of
or by the Company, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise, or (iv) the issuance and sale
of securities in an underwritten public offering if the managing
underwriter(s) of such offering shall notify Purchaser in writing that
the exercise of Purchaser's right of first refusal pursuant to this
Section 5.3 would be reasonably likely to materially adversely effect
the success of such offering; and
(e) the right of first refusal will terminate immediately
prior to the closing of any merger or consolidation of the Company (i)
whereby the Company's equity changes by more than 50% or (ii) in which
the Company is not the surviving entity if the shareholders of the
Company immediately prior to such merger or consolidation do not own
at least 50% of the equity of the surviving entity after the closing
of such merger or consolidation.
5.4 Market Stand-Off. Notwithstanding anything to the
contrary in this Agreement, without the prior written consent of the Company,
(a) Purchaser shall not sell or otherwise dispose of Securities prior to the
90th day after the Closing, and (b) if requested by the managing underwriter of
any underwritten public offering of Common Stock by the Company for its own
account, Purchaser shall agree not to sell or otherwise dispose of Securities
held by Purchaser in any transaction other than pursuant to such underwriting
for such period (not to exceed 180 days) as determined in the discretion of the
Company or such underwriter (such agreement to be in writing in a form
satisfactory to the Company and such managing underwriter), provided that
Purchaser shall not be required to enter into such an agreement unless each
person or entity participating in such offering, and each director and
executive officer of the Company, enters into a substantially identical
agreement relating to such underwriting. The Company may impose stop-transfer
instructions to its transfer agent with respect to the securities subject to
the restriction described in this Section 5.4 until the end of the applicable
"lock-up" periods.
5.5 Listing of Common Stock. As soon as reasonably
practicable following the Closing Date, the Company will use its best efforts
to cause the Shares and Warrant Shares to be listed for trading on the Nasdaq
SmallCap Market.
5.6 Standstill Agreement. As of the date of this Agreement,
except as previously disclosed by Purchaser to the Company in writing,
Purchaser confirms that neither it nor its affiliates beneficially own any debt
or equity securities of the Company, or any direct or indirect options or other
rights to acquire any such securities (hereinafter collectively referred to as
"COMPANY SECURITIES"). Purchaser agrees that neither Purchaser nor any of its
affiliates will:
(a) except in accordance with the terms of a specific request
from the Company, propose or publicly announce or otherwise disclose
an intent to propose, or enter into or agree to enter into, singly or
with any other person (directly or indirectly), (i) any form of
business combination, acquisition (whether of securities or assets),
or other transaction relating to the Company or any majority-owned
affiliate thereof or (ii) any form of restructuring, recapitalization
or similar transaction with respect to the Company or any
majority-owned affiliate thereof,
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(b) make, initiate or participate in any demand, request or
proposal (other than a proposal made privately to the Board of
Directors of the Company or any officer of the Company) to amend,
waive or terminate any provision of this Agreement, or
(c) (i) except as expressly authorized by the last sentence
of this Section 5.6, acquire, or offer, propose or agree to acquire,
by purchase or otherwise, any Company Securities (now existing or
hereafter created), (ii) except in accordance with the terms of a
specific request from the Company, make, initiate, or in any way
participate in, any solicitation of proxies with respect to any
Company Securities (now existing or hereafter created) (including by
the execution of action by written consent), (iii) except in
accordance with the terms of a specific request from the Company,
become a participant in any election contest with respect to the
Company, (iv) except in accordance with the terms of a specific
request from the Company, participate in or encourage the formation of
any partnership, syndicate, or other group (A) which owns or seeks or
offers to acquire beneficial ownership of any Company Securities other
than a partnership, syndicate or other group which in the aggregate
owns less than 19.9% of the voting power of all then outstanding
Company Securities, (B) which seeks to effect control of the Company
or (C) for the purpose of circumventing any provision of this
Agreement, or (v) otherwise act, alone or in concert with others
(including by providing financing for another person), to seek or to
offer to control or influence, in any manner, the management, board of
directors, or policies of the Company and or its affiliates except
pursuant to the board nominee provided pursuant to Section 5.2.
Notwithstanding the foregoing, nothing contained herein will be deemed
to restrict Purchaser from taking any action under subsection (c)(i) above if,
upon consummation of such action, all Company Securities held by Purchaser,
directly or indirectly, would represent nineteen and nine tenths percent
(19.9%) or less of the voting power of all then outstanding Company Securities.
ARTICLE VI
DELIVERIES AT CLOSING
6.1 Warrant to Purchase Common Stock. The Company shall
execute and deliver to Purchaser the Warrant.
6.2 Registration Rights Agreement. The Company and Purchaser
shall execute and enter into the Registration Rights Agreement.
6.3 Stock Certificate. The Company shall issue and deliver to
Purchaser a stock certificate for the Shares in accordance with the provisions
of this Agreement.
6.4 Legal Opinion. Counsel for the Company shall deliver, in
form and substance satisfactory to counsel for the Purchaser, a legal opinion
to the effect set forth below:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Oklahoma. The Company has
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corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Company SEC Documents
and to enter into and perform its obligations under each of the
Operative Agreements.
(b) The Securities have been duly authorized for issuance and
sale to the Purchaser pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration set forth herein or in the Warrant, as the case may
be, will be validly issued and fully paid and non-assessable, and no
holder of Securities is or will be subject to personal liability with
respect to the obligations of the Company by reason of being such a
holder. The issuance of the Securities is not subject to preemptive or
other similar rights of any securityholder of the Company created by
statute, under the Certificate of Incorporation or Bylaws of the
Company or under any documents or agreements filed or incorporated by
reference by the Company with the SEC as exhibits to its registration
statement on Form SB-2 (Reg. No. 333-83315), including all amendments
thereto (the "SEC EXHIBITS").
(c) The Operative Agreements have been duly authorized,
executed and delivered by the Company. This Agreement, the
Registration Rights Agreement and the Warrant constitute the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be subject to or
limited by (i) bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent transfer and other similar laws affecting the
rights of creditors generally and (ii) general equitable principles
(whether relief is sought at law or in equity), including concepts of
materiality, reasonableness, good faith and fair dealing; and except
as any rights to indemnification and contribution may be limited by
federal or state securities laws and public policy considerations.
(d) The form of certificate used to evidence the Shares
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the Certificate of
Incorporation and Bylaws of the Company and the requirements of the
Nasdaq SmallCap Market.
(e) Except for Form D filings required to perfect exemptions
under applicable federal and/or state securities laws and the filing of
an application to list additional shares of Common Stock with the
Nasdaq SmallCap Market, no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign is
necessary or required in connection with the due authorization,
execution and delivery of the Operative Agreements or for the offering,
issuance or sale of the Securities.
(f) The execution, delivery and performance of the Operative
Agreements and the consummation of the transactions contemplated in
the Operative Agreements (including the issuance and sale of the
Securities) and compliance by the Company with its obligations under
the Operative Agreements do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or acceleration event under or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
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SEC Exhibit to which the Company is a party or by which it may be
bound, or to which any of the property or assets of the Company are
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect
on the Company), nor will such action result in any violation of the
provisions of the Certificate of Incorporation or Bylaws of the
Company, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to such counsel, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties, assets or
operations.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it
is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
6.5 Payment of Consideration. Purchaser shall deliver the
Cash Consideration specified in Section 1.1.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
7.1 Survival of Representations. All representations and
warranties of the parties as contained in this Agreement (including the
Disclosure Schedules) shall survive the Closing and shall terminate on the date
that is one year after the Closing; provided that there shall be no limitation
period for matters involving fraud or intentional misrepresentation nor for
covenants and agreements of the parties.
7.2 Statements as Representations. All statements contained
in the Company Disclosure Schedule and any certificate delivered pursuant to
this Agreement shall be deemed representations and warranties within the
meaning of Section 7.1 hereof.
7.3 Indemnification by the Company . Subject to the
limitations set forth in this Article VII, the Company hereby agrees to
indemnify, defend and hold harmless Purchaser, any subsidiary, director,
officer, employee, agent or representative of Purchaser (individually, a
"PURCHASER INDEMNITEE" and collectively, "PURCHASER INDEMNITEES") from and
against all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including, without limitation,
interest, penalties, attorneys' fees and expenses (collectively, "DAMAGES")
asserted against, resulting from, imposed upon or incurred by the Purchaser
Indemnitees or any Purchaser Indemnitee, resulting from, or arising out of any
breach of any representation, warranty or agreement of the Company, contained
in or made pursuant to this Agreement. Exercise of the foregoing
indemnification rights shall be the sole remedy of any Purchaser Indemnitee
with respect to any breach by the Company of its representations or warranties
contained in this Agreement. The maximum aggregate liability of the Company
pursuant to this Section 7.3 with respect to any breach by the Company of such
representations
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or warranties will be limited to Five Million and 00/100 Dollars
($5,000,000.00), plus any amounts paid by Purchaser to exercise the Warrant,
whether such liability is asserted in an action brought in contract, in tort or
pursuant to some other theory and whether the possibility of such liability was
made known to or was foreseeable by the Company. Accordingly, the Purchaser
agrees to assume the responsibility for insuring against or otherwise bearing
the risk of greater damages.
7.4 Indemnification by Purchaser. Subject to the limitations
set forth in this Article VII, Purchaser hereby agrees to indemnify, defend and
hold harmless the Company, any subsidiary, director, officer, employee, agent
or representative of the Company (individually, an "COMPANY INDEMNITEE" and
collectively, "COMPANY INDEMNITEES") from and against all Damages asserted
against, resulting from, imposed upon or incurred by the Company Indemnitees or
any Company Indemnitee, resulting from, or arising out of any breach of any
representation, warranty or agreement of Purchaser, contained in or made
pursuant to this Agreement. Exercise of the foregoing indemnification rights
shall be the sole remedy of any Company Indemnitee with respect to any breach
by Purchaser of its representations or warranties contained in this Agreement.
7.5 Limitation of Liability. NEITHER PARTY SHALL HAVE ANY
LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY IS AN EXPRESSLY BARGAINED FOR
PORTION OF THE CONSIDERATION FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Amendment and Modifications. This Agreement may be
amended, modified and supplemented only by written agreement between the
parties hereto which states that it is intended to be a modification of this
Agreement.
8.2 Waiver of Compliance. Any failure of the Company or
Purchaser to comply with any obligation, covenant, agreement or condition
herein may be expressly waived in writing by the other party, but such waiver
or failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.3 Expenses. The parties agree that all fees and expenses
incurred by them in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such fees and
expenses, including, without limitation, all fees of counsel, actuaries and
accountants.
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8.4 Remedies Waiver. All rights and remedies existing under
this Agreement are cumulative to and not exclusive of, any rights or remedies
otherwise available under applicable law. No failure on the part of any party
to exercise or delay in exercising any right hereunder shall be deemed a waiver
thereof, nor shall any single or partial exercise preclude any further or other
exercise of such or any other right. No right or remedy of a party shall be
deemed waived unless expressly made a term, covenant or condition in this
Agreement.
8.5 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or by commercial
delivery service, sent by facsimile transmission with confirmation of receipt,
or mailed by certified or registered mail (return receipt requested) with
postage prepaid, to the parties at the following address (or such other address
for a party as shall be specified by like notice):
if to the Company, to:
The viaLINK Company
00000 Xxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Attn: J. Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxxx & Associates, P.C.
000 X. Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
and a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx., Esq.
Fax: (000) 000-0000
if to Purchaser, to:
i2 Technologies, Inc.
000 X. Xxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
fax: (000) 000-0000
8.6 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned or
delegated by any of the parties hereto without the prior written consent of the
other party.
8.7 Publicity. Neither the Company nor Purchaser shall make
or issue, or cause to be made or issued, any announcement or written statement
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party. This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or state
governmental agency or by obligations pursuant to any listing agreement with
any national securities exchange or with the National Association of Securities
Dealers, Inc., except that the party required to make such announcement shall,
whenever practicable, consult with the other party concerning the timing and
content of such announcement before such announcement is made.
8.8 Severability. If any portion of this Agreement shall be
deemed illegal, void or unenforceable by a court of competent jurisdiction, the
remaining portions will continue in full force and effect and the application
of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto.
8.9 Arbitration of Disputes. The parties agree that any
controversy or claim (whether such controversy or claim is based upon or sounds
in statute, contract, tort or otherwise) arising out of or relating to this
Agreement, any performance or dealings between the parties with respect to this
Agreement, or any dispute arising out of the interpretation or application of
this Agreement, which the parties are not able to resolve, shall be settled
exclusively by arbitration in Dallas, Texas by a single arbitrator pursuant to
the American Arbitration Association's Commercial Arbitration Rules then in
effect and judgment upon the award rendered by the arbitrator shall be entered
in any court having jurisdiction thereof and such arbitrator shall have the
authority to grant injunctive relief in a form similar to that which a court of
law would otherwise grant. The arbitrator shall be chosen from a panel of
licensed attorneys having at least fifteen (15) years of professional
experience who are familiar with the subject matter of this Agreement. The
arbitrator shall be appointed within thirty (30) days of the date the demand
for arbitration was sent to the other party. Discovery shall be permitted in
accordance with the Federal Rules of Civil Procedure. If an arbitration
proceeding is brought pursuant to this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and necessary
disbursements incurred in addition to any other relief to which such party may
be entitled.
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8.10 Governing Law. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of Texas (excluding its choice of laws rules).
8.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.12 Headings. The headings of the Sections and Articles of
this Agreement are inserted for convenience only and shall not constitute a
part hereof or affect in any way the meaning or interpretation of this
Agreement.
8.13 Third Parties. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or
corporation other than the parties hereto and their successors or assigns, any
rights or remedies under or by reason of this Agreement.
8.14 Further Assurances. Each of the parties hereto agrees
that from time to time, at the request of any of the other parties hereto and
without further consideration, it will execute and deliver such other documents
and take such other action as such other party may reasonably request in order
to consummate more effectively the transactions contemplated hereby.
8.15 Schedules. The Schedules to this Agreement are deemed
incorporated in this Agreement and may contain information that is not
expressly required to be disclosed by this Agreement.
8.16 Entire Agreement. This Agreement, including the
Schedules hereto, the other documents and the certificates delivered pursuant
to the terms hereof, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto. This Agreement has
been negotiated by the parties and their respective counsel and will be
interpreted fairly and in accordance with its terms and without strict
construction in favor of or against either party.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereto duly
authorized, all as of the day and year first above written.
i2 TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Counsel
THE viaLINK COMPANY,
an Oklahoma corporation
By: /s/ J. Xxxxxx Xxxxxx
---------------------------
Name: J. Xxxxxx Xxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
