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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
The viaLink Company
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(Exact name of registrant as specified in its charter)
Delaware 73-1247666
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
13800 Benson Road, Edmond, Oklahoma 73013
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
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Title of each class Name of each exchange on which
to be so registered each class is to be registered
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which this form if
applicable) relates (if applicable)
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.001 per share
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Our authorized capital stock consists of 50,000,000 shares of common
stock, par value $0.001 per share, and 10,000,000 shares of preferred stock,
par value $0.001 per share. The rights and preferences of the authorized
preferred stock may be designated from time to time by our board of directors.
The following summary is qualified by reference to our certificate of
incorporation and our bylaws, both of which have been filed as exhibits to this
registration statement.
COMMON STOCK
Holders of our common stock are entitled to one vote per share on all
matters to be voted on by the stockholders. Holders of common stock are not
entitled to cumulated voting rights with respect to the election of directors,
and as a result, minority stockholders will not be able to elect directors on
the basis of their votes alone. Subject to limitations under Delaware law and
preferences that may apply to any outstanding shares of preferred stock,
holders of common stock are entitled to receive ratably such dividends or other
distribution, if any, as may be declared by our board of directors out of funds
legally available therefore. In the event of our liquidation, dissolution or
winding up, holders of common stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to the liquidation preference
of any outstanding preferred stock. The common stock has no preemptive,
conversion or other rights to subscribe for additional securities of viaLink.
There are no redemption or sinking fund provisions applicable to the common
stock. All outstanding shares of common stock are validly issued, fully paid
and nonassessable. The rights, preferences and privileges of holders of common
stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock that we may designated and
issue and the future.
PREFERRED STOCK
Our board of directors has the authority, without further action by
the stockholders, to issue up to 10,000,000 shares of preferred stock in one or
more series, to fix rights, preferences, privileges and restrictions of the
authorized preferred stock and to issue shares of each such series. The
issuance of preferred stock could have the effect of restricting dividends on
the common stock, diluting the voting power for the common stock, impairing the
liquidation rights of the common stock or delaying or preventing our change in
control without further action by the stockholders. At present, we have no
plans to issue any shares of preferred stock.
We have agreed with the securities regulators of certain states that
we will not offer preferred stock to persons considered to be promoters of
viaLink except on the same terms as offered to all other existing stockholders
or new stockholders, or unless the issuance of preferred stock is approved by
the majority of our disinterested, independent directors who have access, at
our expense, to legal counsel.
REGISTRATION RIGHTS
We have granted registration rights to the holders of underwriter
warrants and warrant underwriter warrants which we issued to the underwriters
of our initial public offering at the time of the offering and the shares of
our common stock issuable upon exercise of those warrants. Until November 20,
2000, the holders of at least 50% of these registrable securities which are
then outstanding may request registration under the Securities Act of all or
any part of their registrable securities, such registration to be effective for
a period of at least nine consecutive months. The holders of these registrable
securities are entitled to request one such demand registration, the expenses
of which shall be paid for by us. In addition, the holders of these registrable
securities also have piggyback registration rights.
We have also granted registration rights to some holders of options to
purchase 360,000 shares of our common stock. We originally issued these options
to John Simonelli and Larry E. Howell on October 15, 1996 in connection with
our acquisition of Vantage Capital Resources, Inc. If we propose to register
any of our securities
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under the Securities Act (other than by filing a registration statement on Form
S-8 or Form S-4) at any time, the option holders may request to have the
securities they hold included in such registration. Upon such request, we shall
use our best efforts, providing that it is permissible under the Securities Act
to register such securities on such registration statement, to include the
option holders securities in the proposed registration statement. However, we
may determine for any reason, after consultation with the option holders who
have requested to have their securities included in the registration statement,
not to register or to delay the registration of the option holders securities.
In August 1999, we registered for resale the 360,000 shares of common stock
issuable upon the exercise of these options and we are obligated to keep the
registration statement registering these shares for resale effective until
February 2000 or until the shares have been sold pursuant to such registration
statement. As of November 16, 1999, these options were still outstanding.
In connection with an agreement with Hewlett-Packard and the $6.0
million subordinated secured convertible promissory note issued thereunder, we
have granted registration rights to Hewlett-Packard with respect to shares of
our common stock issuable upon conversion of the note. Hewlett-Packard may
request that these securities be registered in up to four demand registrations,
however only one of these demand registrations may be pursuant to a
registration statement on Form S-1, Form SB-2 or other similar forms of
registration statements. We have also granted Hewlett-Packard unlimited
piggyback registration rights. Both the demand and piggyback registration
rights contain cut-back provisions under which we may not have to register the
shares requested by Hewlett-Packard if such registration, in the opinion of the
underwriters of such offering, would be imprudent.
In connection with an agreement with Ernst & Young, we have granted
registration rights to Ernst & Young with respect to 250,000 shares of our
common stock we issued to Ernst & Young upon the exercise of a warrant we
issued to them. Ernst & Young may request that these securities be registered
in up to five demand registrations, however only two of these demand
registrations may be pursuant to a registration statement on Form S-1, Form
SB-2 or other similar forms of registration statements. We have also granted
Ernst & Young unlimited piggyback registration rights. Both the demand and
piggyback registration rights contain cut-back provisions under which we may
not have to register the shares requested by Ernst & Young if such
registration, in the opinion of the underwriters of such offering, would be
imprudent. In August 1999, we registered for resale 62,500 shares of common
stock we issue to Ernst & Young upon exercise of the warrant and we are
obligated to keep the registration statement registering these shares for
resale effective until February 2000 or until the shares have been sold
pursuant to such registration statement.
In connection with an agreement with i2 Technologies and the common
stock and warrant issued thereunder, we have granted registration rights to i2
with respect to shares of our common stock issued to i2 and shares of our
common stock issuable upon the exercise of a warrant we issued to i2. i2 may
request that these securities be registered on a registration statement on Form
S-1, Form SB-2 or other similar forms or registration statements pursuant to a
demand registration right which we have granted them. We have also granted to
i2 unlimited piggyback registration rights. We may delay a request to register
these securities pursuant to the demand registration right for a period not to
exceed 60 days in the case of certain limited circumstances which, in the
opinion of our board of directors, would make the registration of the
securities at such time unadvisable. The piggyback registration rights contain
cut-back provisions under which we may not have to register the shares
requested by i2 if such registration, in the opinion of the underwriters of
such offering, would be imprudent.
ANTI-TAKEOVER EFFECTS
Provisions of Delaware law, our certificate of incorporation and, our
bylaws, could have the effect of delaying or preventing a third party from
acquiring us, even if the acquisition would benefit our stockholders. These
provisions are intended to enhance the likelihood of continuity and stability
in the composition of our board of directors and in the policies formulated by
the board of directors and to discourage certain types of transactions that may
involve an actual or threatened change of control of viaLink. These provisions
are designed to reduce our vulnerability to an unsolicited proposal for a
takeover that does not contemplate the acquisition of all of our outstanding
shares, or an unsolicited proposal for the restructuring or sale of all or part
of viaLink.
Delaware anti-takeover statute. We are subject to the provisions of
Section 203 of the Delaware General Corporation Law, an anti-takeover law.
Subject to certain exceptions, the statute prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
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o prior top such date, the board of directors of the corporation
approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
o upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding, for purposes of determining
the number of shares outstanding, those shares owned (1) by persons
who are directors and also officers and (2) by employee stock plans in
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tender
or exchange offer; or
o on or after such date, the business combination is approved by the
board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of
at least 66 2/3% of the outstanding voting stock which is not owned by
the interested stockholder.
For purposes of Section 203, a "business combination" includes a
merger, asset sale or other transaction resulting in a financial benefit to the
interested stockholder, and an "interested stockholder" is a person who,
together with affiliates and associates, owns, or within three years prior to
the date of determination whether the person is an "interested stockholder,"
did own, 15% or more of the corporation's voting stock.
In addition, provisions of our certificate of incorporation and bylaws
may also have an anti-takeover effect. These provisions may delay, defer or
prevent a tender offer or takeover attempt of our company that a stockholder
might consider in his or her best interest, including attempts that might
result in a premium over the market price for the shares held by our
stockholders. The following summarizes these provisions.
Classified board of directors. Our certificate of incorporation
provides that our board of directors is to be divided into three classes of
directors, as nearly equal in size as is practicable, serving staggered
three-year terms. As a result, approximately one-third of the board of
directors are elected each year. These provisions, when coupled with the
provisions of our certificate of incorporation and bylaws authorizing our board
of directors to fill vacant directorships or increase the size of our board,
may deter a stockholder from removing incumbent directors and simultaneously
gaining control of the board of directors. Our bylaws also provide that
directors may only be removed by the shareholders for cause by the affirmative
vote of the holders of not less than a majority of the total voting power of
all outstanding securities of viaLink then entitled to vote in the election of
directors, voting together as a single class.
Stockholder action; special meeting of stockholders. Our certificate
of incorporation eliminated the ability of stockholders to act by written
consent. Our bylaws provide that special meetings of our stockholders may be
called only a majority of our board of directors.
Advance notice requirements for stockholder proposals and director
nominations. Our bylaws provide that stockholders seeking to bring business
before an annual meeting of stockholders, or to nominate candidates for
election as directors at an annual meeting of stockholders, must provide us
with timely written notice of their proposal. To be timely, a stockholder's
notice must be delivered to or mailed and received at our principal executive
offices not less than 120 days before the date we released the notice of annual
meeting to stockholder in connection with the previous year's annual meeting.
If, however, no meeting was held in the prior year or the date of the annual
meeting has been changed by more than 30 days from the date contemplated in the
notice of annual meeting, notice by the stockholder, in order to be timely,
must be received a reasonable time before we release the notice of annual
meeting to stockholders. Our bylaws also specify certain requirements as to the
form and content of a stockholder's notice. These provisions may preclude
stockholders from bringing maters before an annual meeting of stockholders or
from making nominations for directors at an annual meeting of stockholders.
Authorized but unissued shares. Our authorized but unissued shares of
common stock and preferred stock are available for our board to issue without
stockholder approval. We may use these additional shares for a variety of
corporate purposes, including future public offerings to raise additional
capital, corporate acquisitions and employee benefit plans. The existence of
our authorized but unissued shares of common stock and preferred stock could
render it more difficult or discourage an attempt to obtain control of our
company be means of proxy context, tender offer, merger or other transaction.
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Supermajority vote provisions. Delaware law provides generally that
the affirmative vote of a majority of the shares entitled to vote on any matter
is required to amend a corporation's certificate of incorporation of bylaws,
unless a corporation's certificate of incorporation or bylaws, as the case may
be, requires a greater percentage. Our certificate of incorporation imposes
supermajority vote requirements in connection with the amendment of certain
provisions of our certificate of incorporation, including the provisions
relating to the classified board of directors and action by written consent of
stockholders.
Indemnification. Our certificate of incorporation and bylaws require
us to indemnify our directors and officers to the fullest extent permitted by
Delaware law. In addition, our charter limits the personal liability of our
board members for breaches by the directors of their fiduciary duties to the
fullest extent permitted under Delaware law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar of out common stock is UMB Bank, N.A.
and its address is 928 Grand Boulevard, P.O. Box 410064, Kansas City, Missouri
64141.
NASDAQ SMALLCAP MARKET LISTING
Our common stock is traded on the Nasdaq SmallCap Market under the
trading symbol "IQIQ."
ITEM 2. EXHIBITS.
1. Certificate of Incorporation of The viaLink Company (filed as Appendix E to
Registrant's Definitive 14-A Proxy Statement dated April 19, 1999 (the "1999
Proxy Statement") and incorporated herein by reference)
2. Bylaws of The viaLink Company (filed as Appendix F to the 1999 Proxy
Statement and incorporated herein by reference)
3. Specimen Common Stock Certificate
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
(Registrant) The viaLink Company
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Date: November 17, 1999
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By: Lewis B. Kilbourne
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Chief Executive Officer
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1. Certificate of Incorporation of The viaLink Company (filed as
Appendix E to Registrant's Definitive 14-A Proxy Statement dated
April 19, 1999 (the "1999 Proxy Statement") and incorporated
herein by reference)
2. Bylaws of The viaLink Company (filed as Appendix F to the 1999
Proxy Statement and incorporated herein by reference)
3. Specimen Common Stock Certificate
</TABLE>
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THE
[LOGO] viaLink
COMPANY
ELECTRONIC COMMERCE...APPLIED (TM)
Incorporated Under the Laws of the State of Delaware
50,000,000 Authorized Shares $0.001 Par Value
NUMBER SHARES
CUSIP 92552Q 10 1
SEE REVERSE
FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
Is The Owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF $0.001 PAR VALUE COMMON STOCK OF
THE VIALINK COMPANY
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed. This Certificate and the shares represented hereby are issued and
shall be subject to all the provisions of the Certificate of Incorporation, as
amended, to all of which the holder, by acceptance hereby assents.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed in facsimile signatures by its duly authorized officers and the facsimile
corporate seal to be duly affixed hereto.
This Certificate not valid unless duly countersigned by the Transfer
Agent.
Dated:
/s/ John M. Duck [SEAL] /s/ Robert N. Baker
John M. Duck Robert N. Baker
COUNTERSIGNED:
UMB Bank, n.a.
TRANSFER AGENT
AND REGISTRAR
By
AUTHORIZED SIGNATURE
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THE VIALINK COMPANY
The following abbreviations when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN COM -- as tenants in common UNIF GIFT MIN ACT - _____Custodian______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors
of survivorship and not as Act______________________
tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
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For Value Received, _____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, POSTAL ZIP CODE OF ASSIGNEE)
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of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
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to transfer the said stock on the books of the within-named , with full power of
substitution in the premises.
Dated
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NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
SIGNATURE(S) GUARANTEED:
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The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
S.E.C. Rule 17Ad-15.
PROOF THIS PROOF MUST HAVE
YOUR O.K. AND SIGNATURE
BEFORE PRINTING
O.K. AS IS _____O.K. AS CORRECTED_____
Signature
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