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EXHIBIT 10.3
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of February 7, 2001 (this
"SUBSCRIPTION AGREEMENT"), by and between THE VIALINK COMPANY, a Delaware
corporation (the "COMPANY"), and each of the investors listed on Schedule A
hereto (each an "INVESTOR" and collectively, the "INVESTORS").
WHEREAS, each of the Investors is an executive officer and/or
director of the Company;
WHEREAS, the Company is a party to a series of Securities
Purchase Agreements, dated as of February 2, 2001 (the "PURCHASE AGREEMENTS"),
by and between the Company and the purchasers listed on the signature pages
thereto (the "PURCHASERS");
WHEREAS, each Investor desires to subscribe for and purchase
from the Company, and the Company desires to issue and sell to such Investor,
(i) that number of shares of its Series A Convertible Participating Preferred
Stock, par value $0.001 per share (the "PREFERRED STOCK"), and (ii) a Series A
Warrant (the "WARRANT") to purchase that number of shares of the Company's
common stock, par value $0.001 per share (the "COMMON STOCK") set forth opposite
such Investor's name on Schedule A for a purchase price of $2,750 per share of
Preferred Stock, on the terms and conditions set forth in this Subscription
Agreement and the Purchase Agreements. The Preferred Stock and the Warrants
shall be collectively referred to as the "SECURITIES;"
WHEREAS, the Company must obtain stockholder approval pursuant
to Nasdaq Rule 4350(i)(1)(A) (the "STOCKHOLDER APPROVAL") before the Investors
can complete the purchase the Securities;
WHEREAS, the Company will seek the Stockholder Approval either
at the Company's next annual meeting, which shall be held no later than May 31,
2001, or at a special meeting of the stockholders prior to such annual meeting;
and
WHEREAS, the Investors have agreed to fund into escrow pending
receipt by the Company of the Stockholder Approval.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1. Sale of Shares. Upon the terms and subject to the
conditions of this Subscription Agreement and the Purchase Agreements, at the
Closing (as hereinafter defined), the Company hereby agrees to issue and sell to
each Investor the Securities set forth opposite such Investor's name on Schedule
A.
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Section 1.2. Consideration. Upon the terms and subject to the
conditions of this Subscription Agreement and the Purchase Agreements, each
Investor hereby unconditionally agrees to accept and purchase the Securities set
forth opposite such Investor's name on Schedule A for the purchase price set
forth thereon at the Closing. Concurrently with the execution hereof, each
Investor has deposited the purchase price payable by him with the Escrow Agent
(as defined in the Escrow Agreement (as hereinafter defined)).
Section 1.3. Closing. The closing of the separate purchases
and sales of the Securities shall take place at the offices of the Company
within three (3) business days after all of the conditions to the closing set
forth in Article III have been satisfied or waived (such date and time referred
to herein as the "CLOSING"). At the Closing, the Company shall deliver to each
Investor (i) a certificate representing the Preferred Stock and (ii) a Warrant
evidencing the Securities purchased hereunder by such Investor.
Section 1.4. Escrow Agreement. Concurrently herewith, the
Investors and the Company have executed an Escrow Agreement substantially in the
form of Exhibit A attached hereto (the "ESCROW AGREEMENT").
Section 1.5. Registration Rights Agreement. At the Closing,
the Company and the Investors shall enter into a Registration Rights Agreement,
substantially in the form of Exhibit B attached hereto (the "REGISTRATION RIGHTS
AGREEMENT," and together with the Escrow Agreement, the "RELATED AGREEMENTS")
providing for the registration of the Common Stock underlying the Preferred
Stock and Warrants purchased by the Investors pursuant hereto within 180 days
following the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Each Investor, severally but not jointly, hereby represents,
warrants and covenants to the Company that:
(1) Authorization. Such Investor has full power and
authority to enter into this Agreement and each Related Agreement, and such
Agreement and each Related Agreement constitutes, or when executed will
constitute, such Investor's valid and legally binding obligation, enforceable in
accordance with its terms.
(2) Purchase Entirely for Own Account. This Agreement is
made with such Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Securities will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
(3) Disclosure of Information. Such Investor believes it
has received all the information it considers necessary or appropriate for
deciding whether to purchase the
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Securities. Such Investor further represents that he has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Securities and the business, properties and
financial condition of the Company.
(4) Investment Experience. Such Investor is an investor
in securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Securities.
(5) Accredited Investor. As an officer and/or director of
the Company, such Investor is an "accredited investor" within the meaning of
Securities and Exchange Commission ("SEC") Rule 501 of Regulation D, as
presently in effect.
(6) Restricted Securities. Such Investor understands that
the Securities such Investor is purchasing are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be resold
without registration under the Act only in certain limited circumstances. In
this connection, such Investor 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 of 1933, as amended (the "Securities Act").
(7) Further Limitations on Disposition. Without in any
way limiting the representations set forth above, such Investor further agrees
not to make any disposition of all or any portion of the Securities unless and
until:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(ii) (A) Such Investor shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and (B) if reasonably requested by the Company, such Investor shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company that such disposition will not require registration of such shares under
the Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of paragraphs
(i) and (ii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by an Investor to the estate of any such Investor or
the transfer by gift, will or intestate succession of any Investor to his spouse
or to the siblings, lineal descendants or ancestors of such Investor or his
spouse, if the transferee agrees in writing to be subject to the terms hereof to
the same extent as if he were an original Investor hereunder.
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(8) Legends. It is understood that the certificates
evidencing the Shares may bear the following legends in addition to any other
legends called for by Delaware law, this Agreement or any Related Agreement:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States. The
securities represented hereby may not be offered or sold or
otherwise transferred in the absence of an effective
registration statement for the securities under applicable
securities laws or unless offered, sold or transferred
pursuant to an available exemption from the registration
requirements of those laws."
ARTICLE III
CONDITIONS TO CLOSING
The obligations of each party to this Subscription Agreement
to consummate the transactions contemplated hereby shall be subject to the
following conditions:
Section 3.1. Stockholder Approval. The Company shall have
obtained the Stockholder Approval.
Section 3.2. Release of Escrow. The purchase price for the
Securities held in escrow shall have been released to the Company in accordance
with the Escrow Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Successors and Assigns; Governing Law. The
undersigned understands that this Agreement, if, and only if, accepted by the
Company, shall be binding upon the executors, administrators, heirs, legal
representatives, legatees, successors and assigns of the undersigned and shall
inure to the benefit of the Company, its successors and assigns. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Texas.
Section 4.2. Entire Agreement. This Subscription Agreement
contains the entire understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
among the parties hereto with respect to such subject matter.
Section 4.3. Notices. Any notice required to be given under
this Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, registered or certified, postage
prepaid and properly addressed to the party entitled to such notice at the
address indicated below such party's signature line on this Agreement or at such
other address as such party may designate by ten (10) days' advance written
notice under this paragraph to all other parties to this Agreement.
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Section 4.4. Amendments. The terms and provisions of this
Subscription Agreement may be modified or amended only pursuant to a written
instrument executed by the Company and Investor.
Section 4.5. Counterparts. This Subscription Agreement may be
executed in any number of counterparts, and each such counterpart shall be
deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
Section 4.6. Headings. The section and paragraph headings
contained in this Subscription Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Subscription
Agreement.
[SIGNATURE PAGE FOLLOWS]
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The undersigned, by executing this Agreement, (a) agrees, upon
acceptance hereof by the Company, to purchase the Shares set forth below for
payment of the total purchase price set forth below, (b) makes the
representations, warranties and covenants set forth in this Agreement and (c)
states that the statements and matters set forth in this Agreement are true and
correct. YOUR PURCHASE PRICE WILL BE HELD IN ESCROW BY THE COMPANY UNTIL THE
COMPANY OBTAINS THE STOCKHOLDER APPROVAL. IF THE COMPANY DOES NOT OBTAIN THE
STOCKHOLDER APPROVAL ON OR PRIOR TO MAY 31, 2001, YOUR PURCHASE PRICE WILL BE
RETURNED TO YOU IN ACCORDANCE WITH THE TERMS OF THE ESCROW AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Subscription Agreement as of the date first above written.
THE COMPANY: THE VIALINK COMPANY
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Controller
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Address: 00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
INVESTORS: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Address:
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Facsimile:
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/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
Address:
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Facsimile:
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/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
Address:
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Facsimile:
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/s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Address:
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Facsimile:
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/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Address:
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Facsimile:
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/s/ XXXXXX X. XXX
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Xxxxxx X. Xxx
Address:
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Facsimile:
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/s/ XXXXX XXXXX
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Xxxxx Xxxxx
Address:
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Facsimile:
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/s/ XXXX XXXXX
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Xxxx Xxxxx
Address:
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Facsimile:
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SCHEDULE A
SCHEDULE OF INVESTORS
Shares of
Name of Investor Preferred Stock Warrants Purchase Price
---------------- --------------- -------- --------------
Xxxxxx X. Xxxxx 163 163,000 $448,250
Xxxx Xxxxxxxx 18 18,000 49,500
Xxxxxxx X. Xxxxxxxx 21 21,000 57,750
Xxxxx X. Xxxxxxxxx 27 27,000 74,250
Xxxxx X. Xxxxx 18 18,000 49,500
Xxxxxx X. Xxx 7 7,000 19,250
Xxxxx Xxxxx 18 18,000 49,500
Xxxx Xxxxx 5 5,000 13,750
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Total 277 277,000 $761,750
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EXHIBIT A
ESCROW AGREEMENT
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EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
