As filed with the Securities and Exchange Commission on December 21, 1998.
Registration No. 333-47549.
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UNITED STATES SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE ACT OF 1933
The viaLink Company (formerly APPLIED INTELLIGENCE GROUP, INC.)
(Exact Name of Registrant as Specified in its Charter)
Oklahoma 73-1247666
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification Number)
13800 Benson Road
Edmond, Oklahoma 73013
(Address of principal executive offices) (Zip Code)
The viaLink Company (formerly Applied Intelligence Group, Inc.)
1998 Non-Qualified Stock Option Plan
(Full Title of the Plan)
Dr. Lewis B. Kilbourne
Chief Executive Officer
The viaLink Company (formerly Applied Intelligence Group, Inc.)
13800 Benson Road
Edmond, Oklahoma 73013
(Name and Address of Agent For Service)
(405) 936-2300
(Telephone Number, Including Area Code, of Agent For Service)
Copies To:
Mr. Michael E. Dunn, Esq.
Dunn Swan & Cunningham
2800 Oklahoma Tower, 210 Park Avenue
Oklahoma City, Oklahoma 73102-5604
(405) 235-8318
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<TABLE>
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities to Registered Maximum Maximum Registration
be Registered Offering Aggregate Fee(2)
Price Per Offering
Share (1) Price (1)
<S> <C> <C> <C> <C>
Common Stock
($.001 per
share par 800,000 $6.375 $5,100,000 $1,101
value) shares
</TABLE>
300,000 shares of Common Stock are being carried forward from Registration
Statement on Form S-8 No. 333-47549 and the previously paid registration fee
associated with such shares of Common Stock of $302.
(1) Estimated solely for the purpose of determining the registration fee.
(2) Calculated pursuant to rule 457(h)(1) on the basis of the
reported closing price of shares of the Common Stock on the
Nasdaq SmallCap Market on December 17, 1998.
Exhibit Index Appears on Page 7.
PART II
This Registration Statement relates to 800,000 shares of
Common Stock, $.001 par value per share (the "Common Stock"), of
The viaLink Company (formerly Applied Intelligence Group, Inc.)
(the "Company" or the ("Registrant"), being registered for
issuance under The viaLink company (formerly Applied
Intelligence Group, Inc.) 1998 Non-Qualified Stock Option Plan,
adopted February 9, 1998, and as amended with an effective date
of September 1, 1998. A Shareholder Consent was executed on
October 16, 1998, but effective as of the first day of September,
1998 to amend the 1998 Non Qualified Stock Option Plan to (i)
increase the number of shares covered by stock options to
800,000; (ii) to amend the grant and terms for stock options, and
(iii) to amend the grant and terms of SAR's. The Common Stock
registered hereunder may be issued under the Plan upon exercise
of options granted to eligible persons as defined under and
pursuant to the Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities
and Exchange Commission (the "Commission") are incorporated in
this Registration Statement by reference:
(a) the Prospectus, dated November 20, 1996, of the
Registrant filed with the Central Regional Officer of the
Commission pursuant to Rule 424(b) and in conjunction with the
Company's Registration Statement on Form SB-2 (No. 333-5038-D),
as declared effective by the Commission on November 20, 1996;
(b) the Certificate of Incorporation contained as Exhibit
3.1 to the Company's Amendment No. 1 to the Registration
Statement on Form S-8/A (No. 333-22227), as filed with the
Commission on December 17, 1998;
(c) the Bylaws filed as Exhibit 3.2 to the Company's
Registration Statement on Form SB-2 (No. 333-5038-D), as filed
with the Central Regional Office of the Commission and as
declared effective by the Commission on November 20, 1996;
(d) the description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A as filed with
the Commission on November 14, 1996 under Section 12 of the
Securities Exchange Act of 1934, including any amendment or
description filed for the purpose of updating such description;
(e) the Registration Statement on Form S-8 as filed with the
Commission on March 9, 1998 under Section 12 of the Securities
Exchange Act of 1934; and
(f) all documents and reports subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of
filing such documents. Specifically incorporated by reference
are Form 10-KSB for the year ending December 31, 1996 and 1997,
and Forms 10-QSB for the quarters ending March 31, 1998, June 30,
1998 and September 30, 1998.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (Class of securities to be offered is
registered under Section 12(g) of the Securities Exchange Act of
1934.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1031 of the Oklahoma General Corporation Act (and
the Registrant's Certificate of Incorporation and Bylaws, which
are incorporated by reference herein) permits and authorizes
indemnification of directors and officers of the Registrant and
officers and directors of another corporation, partnership, joint
venture, trust or other enterprise who serve at the request of
Registrant, against expenses, including attorneys fees,
judgments, fines and amount paid in settlement actually and
reasonably incurred by such person in connection with any action,
suit or proceeding in which such person is a party by reason of
such person being or having been a director or officer of
Registrant or at the request of Registrant, if he conducted
himself in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of Registrant, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Registrant
may not indemnify an officer or a director with respect to any
claim, issue or matter as to which such officer or director shall
have been adjudged to be liable to Registrant, unless and only to
the extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
To the extent that an officer or director is successful on the
merits or otherwise in defense on the merits or otherwise in
defense of any action, suit or proceeding with respect to which
such person is entitled to indemnification, or in defense of any
claim, issue or matter therein, such person is entitled to be
indemnified against expenses, including attorneys fees, actually
and reasonable incurred by him in connection therewith.
The circumstances under which indemnification is granted
with an action brought on behalf of Registrant are generally the
same as those set forth above; however, expenses incurred by an
officer or a director in defending a civil or criminal action,
suit or proceeding may be paid by the Company in advance of final
disposition upon receipt of an undertaking by or on behalf of
such officer or director to repay such amount it is ultimately
determined that such officer or director is not entitled to
indemnification by Registrant.
These provisions may be sufficiently broad to indemnify such
persons for liabilities under the Securities Act of 1933, as
amended (the "1933 Act"), in which case such provision is against
public policy as expressed in the 1933 Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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<TABLE>
ITEM 8. EXHIBITS
<S> <C>
4.6 The viaLink Company (formerly Applied Intelligence Group, Inc.) 1998
Non-Qualified Stock Option Plan, adopted February 9, 1998,
and as amended and restated effective September 1, 1998.
5.4 Opinion of Dunn Swan & Cunningham
23.9 Consent of Independent Accountants
23.10 Consent of Dunn Swan & Cunningham
24.4 Power of Attorney
</TABLE>
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a) (3)
of the 1933 Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs 2 (a) (1) (i) and 2 (a) (1)
(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference herein.
(2) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the undersigned Company's annual report pursuant to
Section 13 (a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the new offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers, and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer, or
controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Edmond, Oklahoma, on
this 17th day of December, 1998.
The viaLink Company
BY:/S/ Lewis B.Kilbourne
Lewis B. Kilbourne
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the Registration Statement has been
signed below by the following persons in the capacities
indicated.
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<TABLE>
SIGNATURES TITLE DATE
<S> <C> <C> <C>
/S/ ROBERT L. BARCUM Chairman of the
Robert L. Barcum Board of Directors December 17, 1998
/S/ Lewis B. Kilbourne Chief Executive Officer December 17, 1998
Lewis B. Kilbourne and Director
/S/ ROBERT N. BAKER______ President, Chief December 17, 1998
Robert N. Baker Operating Officer and
Director
/S/ JOHN M. DUCK_ Vice President and December 17, 1998
John M. Duck Chief Financial
Officer
/S/ JIMMY M. WRIGHT Director December 17, 1998
Jimmy M. Wright
</TABLE>
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<TABLE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
<S> <C>
4.6 The viaLink Company (formerly Applied Intelligence
Group, Inc.) 1998 Non-Qualified Stock Option Plan,
adopted February 9, 1998, and as Amended and
Restated Effective September 1, 1998
5.4 Opinion of Dunn Swan & Cunningham
23.9 Consent of Independent Accountants
23.10 Consent of Dunn Swan & Cunningham
24.4 Power of Attorney
</TABLE>
Exhibit 4.6
THE VIALINK COMPANY
(formerly APPLIED INTELLIGENCE GROUP, INC.)
1998 NON-QUALIFIED STOCK OPTION PLAN
Amended and restated September 1, 1998
THE VIALINK COMPANY
(formerly APPLIED INTELLIGENCE GROUP, INC.)
1998 NON-QUALIFIED STOCK OPTION PLAN
(Amended and Restated September 1, 1998)
ARTICLE I
General Provisions
On February 10, 1998, The viaLink Company (formerly Applied
Intelligence Group, Inc.) (the "Company") adopted the Applied
Intelligence Group, Inc. 1998 Non-Qualified Stock Option Plan
(the "Plan"). On September 4, 1998 the Board of Directors of the
Company approved amendment of the Plan, which amendment was
approved by a majority of the shareholders of the Company on
October 16, 1998. The amendment became effective September 1,
1998. The Plan is amended and restated as provided below.
1.1 Purpose. The purpose of the Plan shall be to attract,
retain and motivate directors, executive officers, employees and
independent contractors and consultants of the Company and its
subsidiaries and certain other individuals who have benefited or
could benefit the Company ("Eligible Persons") by way of granting
non-qualified stock options ("Stock Options") with stock
appreciation rights attached ("Stock Option SARs"). For the
purpose of this Plan, Stock Option SARs are sometimes herein
called "SARs." The Stock Options to be granted are intended to
be "non-qualified stock options" as described in Sections 83 and
421 of the Internal Revenue Code of 1986, as amended (the
"Code"). Furthermore, under the Plan, the terms "parent" and
"subsidiary" shall have the same meaning as set forth in
Subsections (e) and (f) of Section 425 of the Code unless the
context herein clearly indicates to the contrary.
1.2 General. The terms and provisions of this Article I
shall be applicable to Stock Options and SARs unless the context
herein clearly indicates to the contrary.
1.3 Administration of the Plan. The Plan shall be
administered by the Board of Directors (the "Board") of the
Company.
1.3.1 Board Administration. The Board shall have the
power where consistent with the general purpose and intent
of the Plan to (i) modify the requirements of the Plan to
conform with the law or to meet special circumstances not
anticipated or covered in the Plan, (ii) suspend or
discontinue the Plan, (iii) establish policies, and (iv)
adopt rules and regulations and prescribe forms for carrying
out the purposes and provisions of the Plan including the
form of any "stock option agreements" ("Stock Option
Agreements").
1.3.2 Plan Interpretation. Unless otherwise provided
in the Plan, the Board shall have the authority to interpret
and construe the Plan, and determine all questions arising
under the Plan and any agreement made pursuant to the Plan.
Any interpretation, decision or determination made by the
Board shall be final, binding and conclusive.
1.3.3 Selection of Participants. In designating and
selecting Eligible Persons ("Participants") for
participation in the Plan, the Board may consult with and
give consideration to the recommendations and criticisms
submitted by appropriate managerial and executive officers
of the Company. The Board also shall take into account the
duties and responsibilities of the Eligible Persons, their
past, present and potential contributions to the success of
the Company and such other factors as the Board shall deem
relevant in connection with accomplishing the purpose of the
Plan.
1.4 Shares Subject to the Plan. Shares of stock ("Stock")
covered by Stock Options and SARs shall consist of 800,000 shares
of the Common Stock, $.001 par value, of the Company, subject to
adjustment pursuant to Section 1.7 of the Plan, which may be
either authorized and unissued shares or treasury shares, as
determined in the sole discretion of the Board. If any Option
for shares of Stock, granted to a Participant lapses, or is
otherwise terminated, the Board may grant Stock Options and SARs
for such shares of Stock to other Participants. However, Stock
Options and SARs shall not be granted again for shares of Stock
which have been (i) subject to SARs which are surrendered in
exchange for cash or shares of Stock issued pursuant to the
exercise of SARs as provided in Article II hereof and (ii) shares
withheld for tax withholding requirements.
1.5 Participation in the Plan. The Board shall determine
from time to time those Eligible Persons who are to be granted
Stock Options and SARs and the number of shares of Stock covered
thereby. The maximum number of shares of Stock for which the
Eligible Person may be granted Stock Options that become
exerciseable in any calendar year shall not exceed 25 percent of
the aggregate number of shares of Stock with respect to which
Options may be granted under the Plan.
1.6 Determination of Fair Market Value. As used in the
Plan, "fair market value" shall mean on any particular day (i) if
the Stock is listed or admitted for trading on any national
securities exchange or the SmallCap Market System or the National
Market System of Nasdaq Stock Market, Inc. ("Nasdaq"), the last
sale price, or if no sale occurred, the mean between the closing
high bid and low asked quotations, for such day of the Stock,
(ii) if Stock is not traded on any national securities exchange
but is quoted on an automated quotation system or any similar
system of automated dissemination of quotations or securities
prices in common use, the mean between the closing high bid and
low asked quotations for such day of the Stock on such system,
(iii) if neither clause (i) nor (ii) is applicable, the mean betw
een the high bid and low asked quotations for the Stock as
reported by the National Daily Quotation Bureau, Incorporated if
at least two securities dealers have inserted both bid and asked
quotations for shares of the Stock on at least five (5) of the
ten (10) preceding days, (iv) in lieu of the above, if actual
transactions in the shares of Stock are reported on a
consolidated transaction reporting system, the last sale price of
the shares of Stock on such system or, (v) if none of the
conditions set forth above is met, the fair market value of
shares of Stock as determined by the Board. Provided, however,
for purposes of determining "fair market value" of the Common
Stock of the Company, such value shall be determined without
regard to any restriction other than a restriction which will
never lapse.
1.7 Adjustments Upon Changes in Capitalization. The grants
of Stock Options shall in no way affect the right of the Company
to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its assets or
business. The aggregate number of shares of Stock under Stock
Options granted under the Plan, the Option Price and the total
number of shares of Stock which may be purchased by a Participant
on exercise of a Stock Option shall be appropriately adjusted by
the Board to reflect any recapitalization, stock split, merger,
consolidation, reorganization, combination, liquidation, stock
dividend or similar transaction involving the Company. Provided,
however, and notwithstanding the foregoing, (i) a dissolution or
liquidation of the Company, (ii) a merger or consolidation in
which the Company is not the surviving or the resulting
corporation or (iii) a reverse merger in which the Company is the
surviving entity but in which the securities possessing more than
50 percent of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior
to the merger (collectively referred to herein as a (Corporate
Transaction"), shall cause the Plan and any Stock Option or SAR
granted thereunder, to terminate upon the effective date of such
dissolution, liquidation, merger or consolidation, subject to
Section 1.21 of the Plan. Provided, further, that for the
purposes of this Section 1.7, if any merger, consolidation or
combination occurs in which the Company is not the surviving
corporation and is the result of a mere change in the identity,
form or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, then, such
event will not cause a termination of the Plan. Appropriate
adjustment may also be made by the Board in the terms of a SAR to
reflect any of the foregoing changes.
1.8 Amendment and Termination of the Plan. The Plan shall
terminate at midnight, October 31, 2007, but prior thereto may be
altered, changed, modified, amended or terminated by written
amendment approved by the Board. Provided, that no action of the
Board may amend the Plan in any manner which would impair the
applicability of Rule 16b-3 under the Securities Exchange Act of
1934, as amended, to the Plan. Except as provided in this
Article I, no amendment, modification or termination of the Plan
shall in any manner adversely affect any Stock Option or SAR
theretofore granted under the Plan without the consent of the
affected Participant.
1.9 Effective Date. The Plan shall be effective November
1, 1997 (the "Effective Date").
1.10 Securities Law Requirements. The Company shall have
the right, but not the obligation to cause the shares of Stock
issuable upon exercise of the Options to be registered under the
Securities Act of 1933, as amended (the "Securities Act") or the
securities laws of any state or jurisdiction.
1.10.1 Restrictions on Transferability and Legend on
Certificates. As a condition precedent to the grant of any
Stock Option or the issuance or transfer of shares pursuant
to the exercise of any Stock Option, the Company may require
the Participant or holder to take any reasonable action to
meet such requirements or to obtain such approvals. The
Company shall have the right to restrict the transferability
of shares of Stock issued or transferred upon exercise of
the Stock Options in such manner as it deems necessary or
appropriate to insure the availability of any exemption from
registration under the Securities Act and any other
applicable securities laws or regulations that may be
available, including the endorsement with a legend reading
as follows:
The shares of Common Stock evidenced by this
certificate have been issued to the
registered owner in reliance upon written
representations that these shares have been
purchased solely for investment purposes.
These shares may not be sold, transferred or
assigned unless in the opinion of the Company
and its legal counsel such sale, transfer or
assignment will not be in violation of the
Securities Act of 1933, as amended, and the
rules and regulations thereunder.
1.10.2 Registration Statement. If a registration
statement covering the shares of Stock issuable upon
exercise of the Stock Options granted under the Plan is
filed under the Securities Act, and is declared effective
the Securities and Exchange Commission, the provisions of
Section 1.10.1 shall terminate during the period of time
that such registration statement, as periodically amended,
remains effective.
1.11 Separate Certificates. Separate certificates
representing the Common Stock of the Company to be delivered to a
Participant upon the exercise of any Stock Option and SAR will be
issued to such Participant.
1.12 Payment for Stock; Receipt of Stock or Cash in Lieu of
Payment.
1.12.1 Payment for Stock. Payment for shares of Stock
purchased under this Plan shall be made (i) in full and in
cash or check made payable to the Company or (ii) may also
be made in Common Stock of the Company held for the
requisite period necessary to avoid a charge to the
Company's reported earnings and valued at fair market value
on the date of exercise of the Option, or (iii) a
combination of cash and Common Stock of the Company. In
the event that Common Stock of the Company is utilized in
consideration for the purchase of Stock upon the exercise of
an Option, such Common Stock shall be valued at the "fair
market value" as defined in Section 1.6 of the Plan.
1.12.2 Receipt of Stock in Lieu of Cash Payment.
Furthermore, a Participant may exercise an Option without
payment of the Option Price in the event that the exercise
is pursuant to rights under an SAR attached to the Option
and such SAR is exercisable on the date of exercise of the
Stock Option to which it is attached. In the event a Stock
Option with an SAR attached is exercised without payment of
the Option Price in cash or by check or Common Stock of the
Company, the Participant shall be entitled to receive either
(i) a cash payment from the Company equal to the excess of
the total fair market value of the shares of Stock on such
date as determined with respect to which the Stock Option is
being exercised over the total cash Option Price of such
shares of Stock as set forth in the Stock Option SAR or (ii)
that number of whole shares of Stock as is determined by
dividing (A) an amount equal to the fair market value per
share of Stock on the date of exercise into (B) an amount
equal to the excess of the total fair market value of the
shares of Stock on such date with respect to which the Stock
Option SAR is being exercised over the total cash Option
Price of such shares of Stock as set forth in the Stock
Option SAR, and fractional shares will be rounded to the
next lowest number and the Participant will receive cash in
lieu thereof.
1.13 Incurrence of Disability and Retirement. A
Participant shall be deemed to have terminated his employment as
an employee, his independent contractor arrangement or consulting
arrangement with the Company and incurred a disability
("Disability") if such Participant suffers a physical or mental
condition which, in the judgment of the Board, totally and
permanently prevents a Participant from engaging in any
substantial gainful employment with or the providing of services
or consulting for the Company or a subsidiary. A Participant
shall be deemed to have terminated employment as an employee,
independent contractor or a consultant due to retirement
("Retirement") if such Participant ceases to be an employee,
independent contractor or a consultant of the Company or its
subsidiary, without cause, after attaining the age of 55.
1.14 Stock Options Granted Separately. Because the Board
is authorized to grant Stock Options and SARs to Participants,
the grant thereof and Stock Option Agreements relating thereto
will be made separately and totally independent of each other.
1.15 Grants of Options and Stock Option Agreement. Each
Stock Option and Stock Option SAR granted under this Plan shall
be evidenced by the minutes of a meeting of the Board or by the
written consent of the Board and by a written Stock Option
Agreement effective on the date of grant and executed by the
Company and the Participant. Each Stock Option and Stock Option
SAR granted hereunder shall contain such terms, restrictions and
conditions as the Board may determine, which terms, restrictions
and conditions may or may not be the same in each case.
1.16 Use of Proceeds. The proceeds received by the Company
from the sale of Stock pursuant to the exercise of Stock Options
granted under the Plan shall be added to the Company's general
funds and used for general corporate purposes.
1.17 Non-Transferability of Options. Except as otherwise
herein provided, any Stock Option or Stock Option SAR granted
shall not be transferable otherwise than by will or the laws of
descent and distribution or with the consent of the Company, and
the Stock Option and Stock Option SAR may be exercised, during
the lifetime of the Participant, only by him. More particularly
(but without limiting the generality of the foregoing), the Stock
Option and Stock Option SAR may not be assigned, transferred
(except as provided above), pledged or hypothecated in any way,
shall not be assignable by operation of law and shall not be
subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation, or other
disposition of the Stock Option or Stock Option SAR contrary to
the provisions hereof shall be null and void and without effect.
1.18 Additional Documents on Death of Participant. No
transfer of a Stock Option or Stock Option SAR by the Participant
by will or the laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been
furnished with written notice and an unauthenticated copy of the
will and/or such other evidence as the Board may deem necessary
to establish the validity of the transfer and the acceptance by
the successor to the Stock Option or Stock Option SAR of the
terms and conditions of such Stock Option or Stock Option SAR.
1.19 Changes in Employment. So long as the Participant
shall continue to be a director, an employee, an independent
contractor or a consultant of the Company or any one of its
subsidiaries, any Stock Option or Stock Option SAR granted to
such Participant shall not be affected by any change of duties or
position. Nothing in the Plan or in any Stock Option Agreement
which relates to the Plan shall confer upon any Participant any
right to continue as a director or in the employ as an employee,
independent contractor or consultant of the Company or of any of
its subsidiaries, or interfere in any way with the right of the
Company or any of its subsidiaries to terminate such Participant
as a director, employee or independent contractor or consultant
at any time.
1.20 Shareholder Rights. No Participant shall have a right
as a shareholder with respect to any shares of Stock subject to a
Stock Option or Stock Option SAR prior to the purchase of such
shares of Stock by exercise of the Stock Option or Stock Option
SAR.
1.21 Right to Exercise Upon Company Ceasing to Exist. In
the event of a Corporate Transaction, the Participant shall have
the right immediately prior to consummation of the Corporate
Transaction to exercise, in whole or in part, such Participant's
then remaining Stock Options and Stock Option SARs whether or not
then exercisable, but limited to that number of shares that can
be acquired without causing the Participant to have an "excess
parachute payment" as determined under Section 280G of the Code
determined by taking into account all of Participant's "parachute
payments" determined under Section 280G of the Code. Provided,
the foregoing notwithstanding, after the Participant has been
afforded the opportunity to exercise his then remaining Stock
Options and Stock Option SARs as provided in this Section 1.21,
and to the extent such Stock Options and Stock Option SARs are
not timely exercised as provided in this Section 1.21, then, the
terms and provisions of this Plan and any Stock Option Agreement
will thereafter continue in effect, and the Participant will be
entitled to exercise any such remaining and unexercised Options
in accordance with the terms and provisions of this Plan and such
Stock Option Agreement as such Stock Options and Stock Option
SARs thereafter become exercisable. Provided further, that for
the purposes of this Section 1.21, if any merger, consolidation
or combination occurs in which the Company is not the surviving
corporation and is the result of a mere change in the identity,
form, or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, then, such
event shall not cause an acceleration of the exercisability of
any such Stock Options and Stock Option SARs granted hereunder.
1.22 Assumption of Outstanding Stock Options and Stock
Option SARs. Any successor to the Company succeeding to, or
assigned the business of, the Company as the result of or in
connection with a corporate merger, consolidation, combination,
reorganization, dissolution or liquidation transaction shall
assume all Stock Options and Stock Option SARs outstanding under
the Plan or issue new Stock Options and Stock Option SARs in
place of outstanding Stock Options and/or Stock Option SARs under
the Plan.
1.23 Tax Withholdings. The Company's obligation to deliver
Stock upon the exercise of Stock Options or Stock Option SARs
under the Plan shall be subject to the satisfaction of all
applicable federal, state and local income tax withholding
requirements. The Board may in its discretion and in accordance
with the provisions of Section 1.23 and such supplemental rules
as the Board may from time to time adopt, provide any or all
holders of Stock Options or Stock Option SARs with the right to
use shares of Stock in satisfaction of all or part of the
federal, state and local income tax liabilities incurred by such
holders in connection with the exercise of their Stock Options or
Stock Option SARs ("Taxes"). Such right may be provided to any
such holders of Stock Options or Stock Option SARs in either or
both of the following methods: (i) the holder of a Stock Option
or Stock Option SAR may be provided with the election, which may
be subject to approval by the Board, to have the Company
withhold, from the Stock otherwise issuable upon exercise of such
Stock Option or Stock Option SAR, a portion of those shares of
Stock with an aggregate fair market value equal to the percentage
(not to exceed 100 percent) of the applicable Taxes designated by
the holder of the Options, and/or (ii) the Board may, in its
discretion, provide the holder of the Stock Options or Stock
Option SARs with the election to deliver to the Company, at the
time the Stock Option or Stock Option SAR is exercised, one or
more shares of Stock previously acquired by such holder (other
than pursuant to the transaction triggering the Taxes) with an
aggregate fair market value equal to the percentage (not to
exceed 100 percent) of the Taxes incurred in connection with such
Stock Option or Stock Option SAR exercise designated by such
holder.
1.24 Governing Law. The Plan shall be governed by and all
questions hereunder shall be determined in accordance with the
laws of the State of Oklahoma.
ARTICLE II
Terms of Stock Options and Exercise
2.1 General Terms.
2.1.1 Grant and Terms for Stock Options. Stock Options
and Stock Option SARs shall be granted by the Board on the
following terms and conditions: No Stock Options and Stock
Option SARs shall be exercisable more than 10 years after
the date of grant. Subject to such limitation, the Board
shall have the discretion to fix the period (the "Option
Period") during which any Stock Option or Stock Option SAR
may be exercised.
2.1.2 Option Price. The option price ("Option Price")
for shares of Stock subject to Stock Options and Stock
Option SARs shall be determined by the Board, but in no
event shall such Option Price be less than 85 percent of the
fair market value of the Stock on the date of grant.
2.1.3 Acceleration of Otherwise Unexercisable Stock
Option on Retirement, Death, Disability or Other Special
Circumstances. The Board, in its sole discretion, may
permit (i) a Participant who is terminated as a Director, an
employee, an independent contractor or a consultant due to
Retirement or Disability, (ii) the personal representative
of a deceased Participant, or (iii) any other Participant
who is terminated as a Director, an employee, an independent
contractor or a consultant upon the occurrence of special
circumstances (as determined by the Board), to exercise and
purchase (within three years of such date of such
Participant's termination) all or any part of the shares
subject to Stock Options and Stock Option SARs on the date
of the Participant's termination, Retirement, Disability,
death, or as the Board otherwise so determines,
notwithstanding that all installments, if any, with respect
to such Stock Option or Stock Option SAR, had not accrued on
such termination date.
2.1.4 Number of Stock Options Granted. Participants
may be granted more than one Stock Option and Stock Option
SAR. In making any such determination, the Board shall
obtain the advice and recommendation of the officers of the
Company or a subsidiary which have supervisory authority
over such Participants. The granting of a Stock Option or
Stock Option SAR under the Plan shall not affect any
outstanding Stock Options or Stock Option SARs previously
granted to a Participant under the Plan.
2.1.5 Notice of Exercise Stock Option. Upon exercise
of a Stock Option or Stock Option SAR, a Participant shall
give written notice to the Secretary of the Company, or
other officer designated by the Board, at the Company's main
office in Oklahoma City, Oklahoma. No Stock shall be issued
to any Participant until the Company receives full payment
for the Stock purchased, if applicable, and any required
Taxes as provided in the Plan and the Stock Option
Agreement.
ARTICLE III
SARs
3.1 General Terms.
3.1.1 Grant and Terms of SARs. The Board may grant
SARs to Participants in connection with Stock Options
granted under the Plan. SARs shall terminate at such time
as the Board determines and shall be exercised only upon
surrender of the related Stock Option and only to the extent
that the related Stock Option (or the portion thereof as to
which the SAR is exercisable) is exercised. The applicable
SAR shall (i) terminate upon the termination of the
underlying Stock Option, (ii) only be transferable at the
same time and under the same conditions as the underlying
Stock Option is transferable, (iii) only be exercised when
the underlying Stock Option is exercised, and (iv) may be
exercised only if there is a positive spread between the
Option Price and the fair market value of the Stock for
which the SAR is exercised
3.1.2 Acceleration of Otherwise Unexercisable SARs on
Retirement, Death, Disability or Other Special
Circumstances. The Board, in its sole discretion, may
permit (i) a Participant is terminated as a director, an
employee, an independent contractor, or a consultant with
the Company or a subsidiary due to Retirement or Disability,
(ii) the personal representative of such deceased
Participant, or (iii) any other Participant who is
terminated as director, an employee, an independent
contractor or a consultant with the Company or a subsidiary
upon the occurrence of special circumstances (as determined
by the Board) to exercise (within three years of such date
of such termination) all or any part of any such SARs
previously granted to such Participant as of the date of
such Participant's termination, Retirement, Disability,
death, or as the Board otherwise so determines,
notwithstanding that all installments, if any with respect
to such SARs, had not accrued on such date.
3.1.3 Form of Payment of SARs. The Participant may
request the method and combination of payment upon the
exercise of a SAR; however, the Board has the final
authority to determine whether the value of the SAR shall be
paid in cash or shares of Stock or both. Upon exercise of a
SAR, the holder is entitled to receive the excess amount of
the fair market value of the Stock (as of the date of
exercise) for which the SAR is exercised over the Option
Price under the related Stock Option. All applicable Taxes
will be paid by the Participant to the Company upon the
exercise of a SAR in accordance with Section 1.23.
EXHIBIT 5.4
DUNN SWAN & CUNNINGHAM
Attorneys and Counsellors At Law
2800 Oklahoma Tower
210 Park Avenue
(405)235-8318
Facsimile (405)235-9605
November 30, 1998
Board of Directors
The viaLink Company
13800 Benson Road
Edmond, Oklahoma 73013-6417
Gentlemen:
We have acted as counsel to The viaLink Company (formerly
Applied Intelligence Group, Inc.), an Oklahoma corporation (the
"Company"), in conjunction with the offering of an aggregate of
800,000 shares of Common Stock, $.001 par value per share, of the
Company (the "Shares") to be issued upon exercise of stock
options granted under The viaLink Company (formerly Applied
Intelligence Group, Inc.) 1995 Stock Option Plan (the "Plan"), as
amended effective September 1, 1998.
The offering of the Securities is more fully described in
that certain Registration Statement on Form S-8 filed by the
Company with the United States Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Act").
For purposes of this opinion, we have made such
investigations as we deem necessary or appropriate and have
reviewed and considered among other certificates, documents and
materials the following:
Based upon our investigation and our examination and
consideration of such documents, certificates, records, matters
and things as we deemed necessary for the purposes hereof, we are
of the opinion as of the date hereof that:
1.The Company is duly organized and existing under
the laws of the State of Oklahoma;
2.All of the issued and outstanding shares of the
Common Stock of the Company have been legally issued,
are fully paid and are not liable to further call or
assessment; and,
3.The 800,000 shares of Common Stock to be issued
upon exercise of stock options granted pursuant to the
Plan, upon issuance and delivery against payment
therefor in accordance with the terms and conditions of
the stock options, will be legally issued, fully paid
and not liable for further call or assessment.
We hereby consent to the use of this opinion in the
Registration Statement and all amendments thereto.
Very truly yours,
/s/DUNN SWAN & CUNNINGHAM
Exhibit 23.9
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement
on Form S-8 (File No. 333-47549) of our report dated March 23,
1998, on our audits of the financial statements and financial
statement schedules of Applied Intelligence Group, Inc.
/s/PricewaterhouseCoopers LLP
Oklahoma City, Oklahoma
December 1, 1998
Exhibit 23.10
CONSENT OF DUNN SWAN & CUNNINGHAM
Board of Directors and Shareholders
The viaLink Company
Dunn Swan & Cunningham, A Professional Corporation, hereby
consents to the use of its name in connection with the opinion of
counsel provided and included as an exhibit to this Registration
Statement on Form S-8.
/s/DUNN SWAN & CUNNINGHAM
Oklahoma City, Oklahoma
November 30, 1998
Exhibit 24.4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Robert L.
Barcum, Lewis B. Kilbourne and Jimmy M. Wright constitutes and
appoints Robert N. Baker and John M. Duck, and each of them, his
true and lawful attorney-in-fact and agent, with all power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all
amendments to this Registration Statement, including post-
effective amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith
with the United States Securities and Exchange Commission,
granting unto same attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 17, 1998 /s/ Robert L.Barcum
Robert L. Barcum
/s/ Lewis B. Kilbourne
Lewis B. Kilbourne
/s/ Jimmy M. Wright
Jimmy M. Wright
