4
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "Agreement") is
entered into and is effective as of February 4, 1999 by and
between The viaLink Company, an Oklahoma corporation (the
"Company"), and Hewlett-Packard Company, a Delaware corporation
("HP").
RECITALS:
WHEREAS, on the terms and subject to the conditions set
forth herein, HP is willing to advance $6,000,000 to the Company,
and the Company is willing to execute in favor of HP a
subordinated secured promissory note in the principal amount of
$6,000,000 (the "Initial Note") which note may be exchanged for a
similar note with certain conversion features on the terms set
forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and conditions set forth
below, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Purchase and Sale of Promissory Note; Issuance of
Convertible Note; Use of Proceeds.
(a) Issuance and Delivery of the Initial Note. Subject to the
terms and conditions of this Agreement, HP agrees to purchase at
the Closing (as defined below), and the Company agrees to sell
and issue to HP at the Closing, a Subordinated Secured Promissory
Note in the principal amount of $6,000,000, the form of which
note is attached hereto as Exhibit A (the "Initial Note"). The
issuance of the Initial Note shall take place at a closing (the
"Closing") to be held at such place and time and on such date
(the "Closing Date"), not later than February 4, 1999, as the
Company and HP may determine. At the Closing, the Company will
deliver to HP the Initial Note, against receipt by the Company of
an amount in immediately available funds equal to the face value
of the Initial Note (the "Purchase Price"). The Initial Note
shall be registered in HP's name in the Company's records.
(b) Issuance of Convertible Promissory Note.
(i) In connection with the proxy materials to be
prepared and distributed in connection with the Company's 1999
annual meeting of shareholders, in addition to any other matters
which may be submitted for shareholder approval, the Company
agrees to include a proposal to approve the issuance of additional
shares of its Common Stock, par value $0.001 per share (the "Common
Stock"), pursuant to the form of Subordinated Secured Convertible
Promissory Note attached as Exhibit B hereto (the "Convertible
Note" and, together with the Initial Note, sometimes hereinafter,
the "Notes") for the purpose of complying with Rule
4310(c)(25)(H)(i)(d) of the National Association of Securities
Dealers, Inc. Manual. Conditioned upon receipt of such
shareholder approval, within five (5) business days following its
1999 annual meeting of shareholders, upon HP's tender of the
original Initial Note for cancellation, the Company shall
exchange the Initial Note for the Convertible Note.
(ii) In the event that, for any reason the Company determines
that shareholder approval is not required in connection with the
issuance of the shares of Common Stock pursuant to the
Convertible Note (including, but not limited to, in the event
that (i) the number of shares to be issued falls below 20% of the
outstanding shares of Common Stock or (ii) the five (5) day
average closing price of the Company's Common Stock on the Nasdaq
Small Cap Market falls below $7.00, the conversion price set
forth in the Convertible Note), then the Company and HP shall
promptly exchange the Initial Note for the Convertible Note.
(iii) The conversion price set forth in the Convertible Note
shall not be subject to any adjustment for any change in the
market value of the Company's Common Stock between the date
hereof and the exchange of the Notes.
(c) Use of Proceeds. The parties intend that approximately
fifty percent (50%) of the Purchase Price of the Notes are to be
used by the Company for the purchase, directly or indirectly, of
HP products and/or services, and that the remaining amount may be
used for general corporate and working capital purposes, which
may include, subject to the restrictions imposed on the Company
pursuant to the Transaction Documents (as defined below),
potential acquisitions of companies and technologies which are
complementary to the Company's viaLink services.
2. Representation and Warranties of the Company
. The Company represents and warrants to HP that, as
of the date hereof, except as disclosed in the Disclosure
Schedule in the form of Schedule 1 attached hereto:
(a) Due Incorporation, Qualification, etc. The Company (i) is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation; and (ii) is
duly qualified, licensed to do business and in good standing as a
foreign corporation in each jurisdiction where the failure to be
so qualified or licensed could reasonably be expected to have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(b) Capitalization. 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. As of December 31, 1998, (i) 2,826,612 shares
of Common Stock were issued and outstanding; (ii) 360,000 shares
of Common Stock were reserved for issuance pursuant to certain
Stock Option Agreements dated October 15, 1996 initially issued
to ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Options"); (iii) up to 920,000 shares of Common Stock were
reserved for issuance upon the exercise of certain Redeemable
Common Stock Purchase Warrants with an exercise price of $5.00
per share (the "Warrants"); (iv) 100,000 shares of Common Stock
were reserved for issuance pursuant to the exercise of certain
Common Stock Underwriter Warrants with an exercise price of $6.00
per share (the "Common Stock Underwriter Warrants") issued to the
underwriters in connection with the Company's initial public
offering; (v) 80,000 shares of Common Stock were reserved for
issuance pursuant to the exercise of certain Warrant Underwriter
Warrants entitling the holder to purchase a warrant to purchase
Common Stock for $0.15 per warrant, which warrant entitles the
holder thereof to purchase a share of Common Stock at $6.00 share
(the "Warrant Underwriter Warrants"); and (vi) 50,000 shares of
Common Stock pursuant to the exercise of options to purchase up
to 38,000 shares of Common Stock at an exercise price of $3.50
per share issued to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and options to purchase up to
12,000 shares of Common Stock at an exercise price of $3.50 per
share issued to ▇▇▇ ▇▇▇▇▇▇▇, both pursuant to that certain Asset
Purchase Agreement dated June 12, 1997 by and among the Company
(f/k/a Applied Intelligence Group, Inc.), HT Technologies, Inc.,
and Messrs. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ (the "Ijob Options"). The
outstanding shares of the Company's Common Stock have been duly
authorized and validly issued and are fully paid and
nonassessable. Other than pursuant to conversion of the Notes,
the exercise of the ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Options, the exercise of
the Warrants, the Common Stock Underwriter Warrants and the
Warrant Underwriters Warrants, the exercise of the Ijob Options,
and the exercise of the stock options granted or which may be
granted under the Company's stock option plans, the Company has
not authorized or issued any other shares of its capital stock or
any securities convertible into or exercisable for shares of its
capital stock. As of December 31, 1998, the Company had reserved
1,510,946 shares of Common Stock for issuance under the Company's
option plan. As of December 31, 1998, there were outstanding
options to purchase up to 1,212,622 shares of Common Stock under
the Company's stock option plans. All outstanding securities of
the Company were issued in compliance with applicable federal and
state securities laws.
(c) Authority; Enforceability. The execution, delivery and
performance by the Company of each Transaction Document (as
defined below) and the consummation by the Company of the
transaction contemplated thereby (i) are within the power of the
Company, and (ii) have been duly authorized by all necessary
actions on the part of the Company. Each Transaction Document
executed, or to be executed, by the Company has been, or will be,
duly executed and delivered by the Company and constitutes, or
will constitute, a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, excepts as limited by bankruptcy, insolvency or other laws
of general application relating to or affecting the enforcement
of creditors' rights generally and general principles of equity.
(d) Issuance of Common Stock. The shares of the Company's
Common Stock issuable upon conversion of the Convertible Note
(the "Underlying Common Stock"), when issued in compliance with
this Agreement and the Convertible Note, will be validly issued,
fully paid and nonassessable and will be free of any liens or
encumbrances, other than any liens or encumbrances created by or
imposed upon HP through no action of the Company; provided,
however, that the Underlying Common Stock will be subject to
restrictions on transfer under federal and/or state securities
laws and under the Shareholder Agreement (as defined below). The
Underlying Common Stock is not subject to any preemptive rights
or rights of first refusal.
(e) Non-Contravention. The execution and delivery by the
Company of the Transaction Documents and the performance and
consummation of the transactions contemplated thereby do not and
will not (i) violate the Certificate of Incorporation, as
amended, or Bylaws, as amended, of the Company, or any judgment,
order, writ, decree, statute, rule or regulation applicable to
the Company; (ii) violate any provision of, or result in the
breach or the acceleration of, or entitle any other person to
accelerate (whether after the giving of notice or lapse of time
or both), any mortgage, indenture, agreement, instrument or
contract to which the Company is a party or by which it is bound;
or (iii) result in the creation or imposition of any lien upon
any property, asset or revenue of the Company (other than any
Lien (as defined in the Security Agreement, dated as of the date
hereof, by and between the parties hereto) or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any material
permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or
properties.
(f) Approvals. Except for (i) the shareholder approvals
contemplated by Section 1(b) above, (ii) the filing of an
application to list the Underlying Common Stock on the Nasdaq
Small Cap Market, and (iii) any federal or state securities
filings required subsequent to the Closing, no consent, approval,
order or authorization of, or registration, declaration or filing
with, any governmental authority or other Person (as defined in
the Security Agreement) (including without limitation the
shareholders of any Person) is required in connection with the
execution and delivery of the Transaction Documents executed by
the Company and the performance and consummation of the
transactions contemplated thereby.
(g) Title. The Company owns and has good and marketable title
in fee simple absolute to, or a valid leasehold interest in, all
of its real properties and good title to all personal property
included in its other assets and properties as reflected in the
unaudited balance sheet as at, and income statement for nine
months ended September 20, 1998, as set forth in the Company's
Quarterly Report on Form 10-QSB for the quarterly period ended
September 30, 1998 (collectively, the "Unaudited Financial
Statements"), (except those assets and properties disposed of in
the ordinary course of business since the date of such Unaudited
Financial Statements and the sale of the Company's ▇▇▇▇.▇▇▇, Inc.
subsidiary in exchange for an $800,000 promissory note) and all
respective assets and properties acquired by the Company and the
Company's subsidiaries since such date (except those disposed of
in the ordinary course of business). Such assets and properties
are subject to no Lien, except for Permitted Liens (as defined in
the Security Agreement).
(h) Financial Statements. The Unaudited Financial Statements
(i) are in accordance with the books and records of the Company,
which have been maintained in accordance with good business
practices; and (ii) fairly present the consolidated financial
position of the Company as of the dates presented therein and the
income for the periods presented therein. The Unaudited
Financial Statements set forth in reasonable detail the
Company's accounting policies, principles and methods, and there
has been no change thereof since the date of such Unaudited
Financial Statements, except as may be required by generally
accepted accounting principles ("GAAP"). Except as set forth in
the Unaudited Financial Statements, the Company does not have any
contingent obligations, liability for taxes or other outstanding
obligations which should have been reflected in such financial
statements, which are material in the aggregate and of which the
Company is aware, except as incurred in the ordinary course of
business after the date of such Unaudited Financial Statements.
The Company has capitalized certain software development costs,
and such costs are reflected in the Unaudited Financial
Statements.
(i) Key Employees. The Company does not know of the impending
resignation or termination of employment of any key officer,
consultant or employee of the Company that, if consummated, would
have a materially adverse affect on its business.
(j) Material Liabilities. The Company has no material
liabilities or obligation, absolute or contingent (individually
or in the aggregate), except (i) the liabilities and obligations
set forth in the Unaudited Financial Statements, (ii) liabilities
and obligations which have been incurred in the ordinary course
of business, and (iii) liabilities and obligations under sales,
procurement, licenses and other contracts and arrangements
entered into in the ordinary course of business.
(k) Patents and Other Intangible Assets.
(i) The Company owns or has the right to use, all patents,
trademarks, service marks, trade names, copyrights (and licenses
with respect to the foregoing) used in the conduct of its
business. There are no pending or, to the Company's knowledge,
threatened claims against the Company alleging that the conduct
of the Company's business infringes upon otherwise conflicts with
the right or claimed right of any person under or with respect to
any of the foregoing. The Company is not obligated or under any
liability whatsoever to make any payments by way of royalties,
fees or otherwise to any owner of, licensor of or other claimant
to any patent, trademark, trade name, copyright or other
intangible asset, with respect to the use thereof in connection
with the conduct of its business or otherwise, except with
respect to licenses entered into by the Company in the ordinary
course of business. Except in the ordinary course of business,
including as part of the standard subscription agreement for its
viaLink service, the Company has not granted any licenses or
manufacturing rights with respect to its business as now
conducted or as now proposed to conducted.
(ii) The Company owns or has the right to use all trade secrets,
including know-how, inventions, designs, processes and technical
data required for the development, operation and sale of all
products and services sold and now proposed to be sold by the
Company, free and clear of any rights of others.
(iii) The Company has not received any communication alleging
that the Company has violated or, by conducting its business as
now proposed, would violate or infringe in any way any of the
patents, trademarks, service marks, trade names, copyrights,
trade secrets or other proprietary rights or processes of any
other person or entity.
(l) Securities Law Compliance. Subject to the accuracy of HP's
representations and warranties in Section 3 below, the offer,
sale and issuance of the Note to be issued in conformity with
this Agreement and the issuance of the Underlying Common Stock
upon conversion of the Note constitute transactions exempt from
the registration requirements of Section 5 of the Securities Act
of 1933, as amended (the "Securities Act"), and all applicable
state securities laws.
(m) No Brokers or Finders. The Company has not incurred, and
will not incur, directly or indirectly, as a result of any action
taken or permitted to be taken by the Company, any liability for
brokerage or finders' fees or agents' commissions or similar
charges in connection with the execution and performance of the
transactions contemplated by this Agreement.
(n) Disclosure. This Agreement, together with the Disclosure
Schedule, the Notes, the Shareholder Agreement (as defined
below), and the Security Agreement (as defined below)
(collectively, the "Transaction Documents"), when taken as a
whole, does not contain any untrue statement by the Company of a
material fact or omit to state a material fact required to be
stated therein by the Company in order to make the statements
contained herein or therein not misleading in light of the
circumstances under which they were made. Without limiting the
generality of the foregoing, the Company shall in no event be
deemed to have made to HP any representations or warranties with
respect to any projections, estimates or budgets of future
revenues, expenses or expenditures or future results of
operations which the Company may have supplied to HP in good
faith prior to the date hereof.
3. Representations and Warranties of HP
. HP represents and warrants to the Company that:
(a) Authority. The execution, delivery and performance by HP of
each Transaction Document and the consummation by HP of the
transactions contemplated thereby are within the power of HP and
have been duly authorized by all necessary actions on the part of
HP. Each Transaction Document executed, or to be executed, by
HP has been or will be, duly executed and delivered by HP and
constitutes, or will constitute, a legal, valid and binding
obligation of HP, enforceable against HP in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws
of general application relating to or affecting the enforcement
of creditors' rights generally and general principles of equity.
(b) Securities Law Investment Representations.
(i) Restricted Securities. HP acknowledges that the Notes and
the Underlying Common Stock (collectively, the "Securities") have
not been and will not be registered under the Securities Act, or
the securities laws of any state of the United States or any
other jurisdiction, and except, with respect to the Underlying
Common Stock, as provided in the Shareholder Agreement to be
entered into in connection with the Closing, the form of which is
attached as Exhibit C hereto (the "Shareholder Agreement"), HP
has no right to require such registration.
(ii) Investment Intent. HP is purchasing the Securities for HP's
own account for investment and not for the interest of any other
person and not for resale to others or with a view to or for sale
in connection with any distribution thereof.
(iii) Experience; Access. HP has such knowledge and
experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment and to bear
the economic risk of such investment for an indefinite period of
time. HP believes it has received all the information it
considers necessary or appropriate for deciding whether to
purchase the Securities. HP further represents that it 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, prospects and financial
condition of the Company.
(iv) Accredited Investor. HP is an "accredited investor" (as
that term is defined in Rule 501 of Regulation D promulgated
under the Securities Act).
(v) Resale Restrictions. HP will not resell or otherwise
dispose of the Securities or any interest therein at any time
unless it has complied with the Shareholder Agreement and (i)
such securities are subsequently registered under the Securities
Act and appropriate state securities laws, or (ii) an exemption
from registration is available and, if the Company requests, the
Company receives an opinion of counsel reasonably satisfactory to
it that such exemption is available, and the written approval of
the Company to any transfer has first been obtained.
(c) Legend. It is understood that the certificates evidencing
the Securities shall bear one or all of the following legends:
(i) "These securities have not been registered under the
Securities Act of 1933 as amended. They may not be sold, offered
for sale, pledged or hypothecated in the absence of a
registration statement in effect with respect to the securities
under the Securities Act or an opinion of counsel satisfactory to
the Company that such registration is not required or unless sold
pursuant to Rule 144 of the Securities Act."
(ii) Any legend required by the laws of the State of Oklahoma, or
any other applicable jurisdiction.
(iii) Any legend required by the Transaction Documents to
which HP is a party.
(d) No Brokers or Finders. HP has not incurred, will not incur,
directly or indirectly, as a result of any action taken or
permitted to be taken by HP, any liability for brokerage or
finders' fees or agents' commissions or similar charges in
connection with the execution and performance of the transactions
contemplated by this Agreement.
(e) Tax Advisors. With respect to the federal, state and local
tax consequences of this investment, HP is relying solely on HP's
own tax advisors and not on any statements or representations of
the Company or any of its agents and understands that HP shall be
responsible for HP's own tax liability that may arise as a result
of this investment or the transactions contemplated by this
Agreement.
4. California Commissioner of Corporations Legend.
THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS
AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED,
UNLESS THE SALE IS SO EXEMPT.
5. Conditions to Closing.
(a) Conditions of HP to Closing. HP's obligation hereunder to
advance the Purchase Price to the Company is subject to the
satisfaction, on or prior to the Closing Date, of all the
following conditions, any of which may be waived in whole or in
part by HP:
(i) Representations and Warranties; Covenants; Officer's
Certificate.
(1) The representations and warranties made by the Company
in Section 2 hereof shall be true and correct in all material
respects as of the Closing Date.
(2) The Company shall have performed all covenants set forth in
the Transaction Documents required to be performed prior to the
Closing.
(3) A duly authorized officer of the Company shall have
delivered to HP a certificate, dated the Closing Date, with
respect to the satisfaction of the conditions set forth herein.
(ii) Transaction Documents. The Company shall have duly executed
and delivered to HP the following Transaction Documents:
(1) This Agreement;
(2) The Initial Note;
(3) The Security Agreement in the form attached as Exhibit D
hereto (the "Security Agreement"); and
(4) The Shareholder Agreement.
(iii) Financing Statements. The Company shall have delivered
to HP the UCC-1 financing statements and other documents and
instruments which HP may reasonably request to perfect its
security interest in the Collateral (as defined in the Security
Agreement).
(iv) Corporate Documents. The Company shall have delivered to HP
each of the following:
(1) The Certificate of Incorporation, as amended, of the
Company, certified as of a recent date prior to the Closing Date
by the Secretary of the State of Oklahoma;
(2) A Certificate of Good Standing with respect to the Company,
certified as of a recent date prior to the Closing Date by the
Secretary of the State of Oklahoma;
(3) A certificate of the Secretary of the Company, dated the
Closing Date, certifying that: (A) the Certificate of
Incorporation, as amended, of the Company, delivered to HP
pursuant to Section 5(a)(iv)(1) hereof, is in full force and
effect and has not been amended, supplemented, revoked or
repealed since the date of such certification; (B) attached
thereto is a true and correct copy of the Bylaws, as amended, of
the Company as in effect on the Closing Date; (C) attached
thereto is a true and correct copy of resolutions duly adopted by
the Board of Directors of the Company approving this Agreement
and the other Transaction Documents and the consummation of the
transactions contemplated hereby and thereby; (D) there are no
proceedings for the dissolution or liquidation of the Company
that have commenced or, to the knowledge of the Company, been
threatened; and (E) the incumbency, signatures and authority of
the officers of the Company authorized to execute and deliver the
Transaction Documents on behalf of the Company and perform the
Company's obligations thereunder on behalf of the Company.
(b) Company Conditions to Closing. The Company's obligation
hereunder to accept the Purchase Price from HP is subject to
satisfaction, on or prior to the Closing Date, of all of the
following conditions, any of which may be waived in whole or part
by the Company:
(i) Representations and Warranties; Covenants; Officer's
Certificate.
(1) The representations and warranties made by HP in
Section 3 hereof shall be true and correct in all material respects as of
the Closing Date.
(2) HP shall have performed all covenants set forth in this
Agreement required to be performed prior to the Closing.
(3) A duly authorized officer of HP shall have delivered to the
company a certificate, dated the Closing Date, with respect to
the satisfaction of the conditions set forth in Section
4(b)(i)(1)-(2).
(ii) Note Transaction Documents. HP shall have duly executed and
delivered to the Company the following Transaction Documents:
(1) This Agreement;
(2) The Initial Note;
(3) The Security Agreement; and
(4) The Shareholder Agreement.
6. Additional Agreements.
(a) Non-Solicitation. HP agrees that it will not, for a period
of one year, directly or indirectly, solicit for employment any
employee of the Company who serves in an executive capacity or
who is identified by HP as a result of its evaluation of the
Company or otherwise in connection with the transactions
contemplated by this Agreement.
(b) Company Display of HP Trademarks and Logos. The Company
will prominently display HP trademarks and logos to be agreed
upon between the Company and HP and which may include the logo
"Powered by HP" in the user interface to the viaLink service in
connection with any HP products or services purchased by the
Company pursuant to Section 1(c) hereof.
(c) Hosting, Co-Marketing and Services Agreement. After the
date hereof the parties may, but are under no obligation to
negotiate and enter into an agreement to extend the relationship
between the parties, which may take the form of a Hosting, Co-
Marketing and Services Agreement providing, among other things,
that
(i) HP would serve as the host for the Company's viaLink service
and would charge the Company at a discounted rate for such host
services;
(ii) HP would jointly promote and market HP hardware and services
and the viaLink service to potential customers and industry
analysts and decision-makers; and
(iii) the Company would jointly advertise and market HP
hardware and services to be provided under any definitive
agreement, which promotion may include the prominent display of
HP trademarks and logos to be agreed upon between the Company and
HP and which may include the logo "Powered by HP" in the user
interface to the viaLink service.
(d) Publicity. Except for disclosures to be made by the Company
or HP pursuant to their respective reporting obligations under
the Securities Exchange Act of 1934 and any requirements imposed
on any exchange on which its securities may be listed, HP and the
Company will mutually agree on any public release of information
regarding this Agreement, the Transaction Documents or the
transactions contemplated hereby or thereby.
(e) Confidentiality. From and after the date hereof, each of HP
and the Company shall receive confidential information of the
other party. For purposes hereof, the party, disclosing
confidential information shall be designated "Discloser" and the
party receiving such information shall be designated "Recipient".
Except with Discloser's prior written approval, Recipient shall
keep all of Discloser's confidential information confidential and
shall use such information only for the furtherance of business
relationships between the parties. Recipient shall protect
Discloser's confidential information by using the same degree of
care, but no less than a reasonable degree of care, to prevent
the unauthorized use, dissemination, or publication of
Discloser's confidential information as Recipient uses to protect
its own confidential information of a like nature. Information
shall not be deemed confidential if it (i) is or becomes a matter
of public knowledge through no fault of Recipient; (ii) is
rightfully received by Recipient from a third party without a
duty of confidentiality; (iii) is disclosed under operation of
law; or (iv) is independently developed by Recipient. Recipient
agrees that Discloser is entitled, in addition to any other
remedies available to it either at law or in equity, to
injunctive relief restraining Recipient from violation of the
foregoing restrictions.
7. Miscellaneous.
(a) Waivers and Amendments. No provision of this Agreement may
be amended or modified without the written consent of the Company
and HP. No provision of this Agreement may be waived unless such
waiver is in writing and then only to the extent specifically set
forth in such writing. A waiver with reference to one event
shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
(b) Governing Law. This Agreement and all actions arising out
of or in connection with this Agreement shall be governed by and
construed in accordance with the laws of the State of
California, without regard to the conflicts of law provisions of
the State of California or of any other state.
(c) Survival. The representations and warranties made herein
shall survive the execution and delivery of this Agreement for a
period of twelve months.
(d) Successors and Assigns. Subject to the restrictions on
transfer contained herein and in the Shareholder Agreement, the
rights and obligations of the Company and HP shall be binding
upon and benefit the successors, assigns, heirs, administrators,
and transferees of the parties.
(e) Assignment by HP and the Company. Neither the Notes nor any
of the rights, interests or obligations thereunder or hereunder
or under any other Transaction Document may be assigned, in whole
or in part, by either HP or the Company without the prior written
consent of the other, which consent shall not be unreasonably
withheld.
(f) Entire Agreement. This Agreement together with the other
Transaction Documents constitute the full and entire
understanding and agreement between the parties with regard to
the subjects hereof and thereof, and supersedes all prior
agreements, including that certain Memorandum of Understanding
dated December 21, 1998 between the parties with respect to such
matters.
(g) Notices. Any notice, request, or other communication
required or permitted hereunder shall be in writing and shall be
deemed to have been duly given on the date of delivery if
personally delivered, on the date of being faxed if sent by
confirmed fax, on the first business day after being sent if sent
by recognized overnight courier, and on the third business day
after being mailed if sent by registered or certified mail,
postage prepaid, addressed as follows:
if to Holder, to:
Hewlett-Packard Company
Financing & Complements Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Hewlett-Packard Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇: 2OBQ
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company to:
The viaLink Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(h) Expenses. Each party shall bear and pay its own legal fees
in connection with the negotiation and execution of this
Agreement and the other Transaction Documents.
(i) Severability. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(j) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of
which together shall be deemed to constitute one instrument.
[Signature page follows]
IN WITNESS WHEREOF, each of the parties has caused this
Note Purchase Agreement to be duly executed and delivered by its
duly authorized representative as of the date first written
above.
THE VIALINK COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
HEWLETT-PACKARD COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & General Manager
EXHIBIT A
FORM OF SUBORDINATED SECURED PROMISSORY NOTE
[See Exhibit 10.2 to 8-K]
EXHIBIT B
FORM OF SUBORDINATED
SECURED CONVERTIBLE PROMISSORY NOTE
EXHIBIT C
FORM OF SHAREHOLDER AGREEMENT
[See Exhibit 4.1 to 8-K]
EXHIBIT D
FORM OF SECURITY AGREEMENT
[See Exhibit 10.3 to 8-K]
SCHEDULE 1
DISCLOSURE SCHEDULE TO NOTE PURCHASE AGREEMENT
BY AND BETWEEN
THE VIALINK COMPANY
AND
HEWLETT-PACKARD COMPANY
DATED: February 4, 1999
The schedules and information contained in this
Disclosure Schedule are being delivered by The viaLink Company
(the "Company") to Hewlett-Packard Company as the Disclosure
Schedule to the Note Purchase Agreement dated as of February __,
1999 (the "Agreement") between such parties and such Disclosure
Schedule modifies the representations and warranties contained in
the Agreement.
Schedule, section and subsection references and
headings are inserted for convenience of reference only. To the
extent that an item disclosed in one section or subsection of the
Disclosure Schedule and the applicability of such item to another
section or subsection of the Agreement is reasonably apparent by
reference to the Agreement and the Disclosure Schedule, such item
is hereby incorporated by reference in all other sections and
subsections of the Disclosure Schedule and modify all
representations and warranties contained in the Agreement,
although the Company has endeavored in good faith to provide
specific appropriate cross references.
Nothing contained herein is intended to broaden the
scope of any representation or warranty contained in the
Agreement or to create any covenant on the part of the Company.
Inclusion of an item herein (1) does not represent a
determination by the Company that such item (a) is material (nor
shall it be deemed to establish a standard of materiality) or
(b) did not arise in the ordinary course of business and
(2) shall not constitute, or be deemed to be, an admission to any
third party concerning such item by the Company.
Unless otherwise specified, all capitalized terms used
but not defined herein have the meaning ascribed to them in the
Agreement.
SCHEDULE 1 (CONTINUED)
Section 2(k): Patents and Other Intangible Assets. The
Company has registered the "viaLink" and "Chainlink" trademarks
with the US Patent and Trademark Office.