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EXHIBIT 1
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.....................................................................................13
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 corporate power and authority to own, lease
and operate its properties and to conduct its
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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 SEC Exhibit
to which the Company is a party or by which it may be bound, or to
which
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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 or warranties will be limited
to Five Million and 00/100 Dollars ($5,000,000.00), plus any
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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.
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
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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]
