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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
ON FORM 8-K
PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 12, 1999
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THE VIALINK COMPANY
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(Exact Name of Registrant as Specified in Its Charter)
Oklahoma
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(State of Other Jurisdiction of Incorporation)
000-21729 73-1247666
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(Commission File Number) (IRS Employer
Identification No.)
13800 Benson Road, Edmond, Oklahoma 73013-6417
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(Address of Principal Executive Offices) (Zip Code)
(405) 936-2500
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
STRATEGIC RELATIONSHIP WITH I2 TECHNOLOGIES, INC.
On October 12, 1999 The viaLink Company entered into a strategic
relationship with i2 Technologies, Inc., a Delaware corporation ("i2"), to
integrate certain of the products and services of viaLink and i2. The primary
focus of the alliance is to integrate the products and services of our two
companies and to extend the solutions across multiple industries. i2 will use
our Item Catalog(TM) services to provide product, price and promotion
information to facilitate business processes between trading partners using an
Internet-accessible shared database. Our two companies will also develop joint
sales and marketing programs, and develop enhancements to the viaLink services.
Additionally, i2 invested $5.0 million in us in exchange for 223,884 shares of
viaLink common stock and a warrant to purchase up to an additional 186,567
shares of our common stock at an exercise price of $26.80. This strategic
relationship consists of five agreements: an Alliance and Marketing Agreement, a
Software License Agreement, a Securities Purchase Agreement, a Common Stock
Purchase Warrant and a Registration Rights Agreement.
ALLIANCE AND MARKETING AGREEMENT
The Alliance Agreement between i2 an us provides that (i) viaLink will
utilize i2's sales, marketing and technology resources; (ii) viaLink and i2 will
provide connectivity between our respective products and services; and (iii)
viaLink and i2 will develop joint sales and marketing programs; (iv) i2 will
offer viaLink's Item Catalog and Chain Pricing Services to its existing and
future customers in the Consumer Packaged Goods and Food Service industries; and
(v) viaLink will provide i2 the exclusive right to offer viaLink's Item Catalog
and Chain Pricing Services to its existing and future customers outside of the
Consumer Packaged Goods and Food Service industries. Under the Alliance
Agreement, we have agreed to pay i2 a royalty of five percent (5%) of revenues
from Item Catalog and Chain Pricing Subscription revenues during the term of the
agreement. Additionally, we have agreed to pay a royalty to i2 based upon
subscription revenues from Item Catalog and Chain Pricing Services for new
customers in which i2 had Significant Involvement in the sales process (as
defined in the agreement). i2 has agreed to pay us a royalty based upon revenues
i2 receives from providing the viaLink services to any customer of i2 outside of
the Consumer Packaged Goods and Food Service industries. The initial term of the
agreement will expire on December 31, 2003 and will automatically renew on a
year to year basis thereafter unless terminated by either party.
As part of the Alliance and Marketing Agreement, we also entered into a
Software License Agreement which grants i2 a limited, nonexclusive,
non-transferable, non-assignable, world-wide license to install and configure
the software covered by the agreement on i2's computers and telecommunications
equipment and use the software to provide services to i2 customers as
contemplated by the Alliance and Marketing Agreement.
INVESTMENT IN VIALINK
Pursuant to the Securities Purchase Agreement i2 paid us $5,000,000 in
consideration for the following: (i) 223,884 shares of our common stock and (ii)
a warrant to purchase up to
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186,567 shares of our common stock at an exercise price of $26.80 per share. The
warrant is exercisable at any time on or before October 12, 2001. Additionally,
the agreement provides that i2 shall have the right to designate one nominee to
the Board of Directors of viaLink as long as (i) i2 owns not less than 4% of our
outstanding common stock and the Alliance and Marketing Agreement has not been
terminated or (ii) i2 owns not less than 10% of the our outstanding common
stock. We also granted to i2 a right of first refusal to purchase a portion of
any future securities offerings equal to the portion of the then outstanding
common stock of viaLink held by i2. As of the date of the Securities Purchase
Agreement, i2 beneficially owned 11.5% of our common stock.
The warrant can be exercised immediately and expires on October 12,
2001. As of the date of the issuance of the warrant, the warrant conversion
price was above the value of our stock. However, the fair market value of the
warrant will result in a non-cash charge to our statement of operations.
We also granted to i2 certain demand and piggyback registration rights
pursuant to a Registration Rights Agreement.
Copies of the Securities Purchase Agreement, Registration Rights
Agreement, Common Stock Purchase Warrant, Alliance and Marketing Agreement and
Software License Agreement, each dated as of October 12, 1999, by and between
the Registrant and i2 Technologies, Inc., are attached hereto as Exhibits 4.1,
4.2, 4.3, 10.1 and 10.2, respectively.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
4.4 Securities Purchase Agreement, dated October 12, 1999,
by and between The viaLink Company and i2 Technologies,
Inc.
4.5 Registration Rights Agreement, dated October 12, 1999,
by and between The viaLink Company and i2 Technologies,
Inc.
4.6 Common Stock Purchase Warrant, dated October 12, 1999
(i2 may purchase up to 186,567 shares of viaLink's
common stock at an exercise price of $26.80 per share;
the warrant expires on October 12, 2001)
10.1* Alliance and Marketing Agreement, dated October 12,
1999, by and between The viaLink Company and i2
Technologies, Inc.
10.2 Software License Agreement, dated October 12, 1999, by
and between The viaLink Company and i2 Technologies,
Inc.
* Concurrently with the filing of this Form 8-K, the Company has filed with
the Securities and Exchange Commission a Confidential Request Letter
pursuant to Rule 24b-2 requesting confidential treatment of certain
portions of Exhibit 10.1, which exhibit has been redacted accordingly in
this filing.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE VIALINK COMPANY
Date: October 27, 1999
By: /s/ LEWIS B. KILBOURNE
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Lewis B. Kilbourne
Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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4.4 Securities Purchase Agreement, dated October 12, 1999, by and between
The viaLink Company and i2 Technologies, Inc.
4.5 Registration Rights Agreement, dated October 12, 1999, by and between
The viaLink Company and i2 Technologies, Inc.
4.6 Common Stock Purchase Warrant, dated October 12, 1999 (i2 may
purchase up to 186,567 shares of viaLink's common stock at an
exercise price of $26.80 per share; the warrant expires on October
12, 2001)
10.1* Alliance and Marketing Agreement, dated October 12, 1999, by and
between The viaLink Company and i2 Technologies, Inc.
10.2 Software License Agreement, dated October 12, 1999, by and between
The viaLink Company and i2 Technologies, Inc.
</TABLE>
* Concurrently with the filing of this Form 8-K, the Company has filed with
the Securities and Exchange Commission a Confidential Request Letter
pursuant to Rule 24b-2 requesting confidential treatment of certain
portions of Exhibit 10.1, which exhibit has been redacted accordingly in
this filing.
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EXHIBIT 4.4
SECURITIES PURCHASE AGREEMENT
BY AND BETWEEN
THE viaLINK COMPANY
AND
i2 TECHNOLOGIES, INC.
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I PURCHASE AND SALE OF SECURITIES.....................................1
1.1 Purchase and Sale of Securities..................................1
ARTICLE II CLOSING............................................................2
2.1 The Closing......................................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................2
3.1 Organization, Standing and Power.................................2
3.2 Capital Structure................................................2
3.3 Authority........................................................3
3.4 SEC Documents; Financial Statements..............................4
3.5 Absence of Undisclosed Liabilities...............................4
3.6 Broker's and Finders' Fees.......................................4
3.7 Board Approval...................................................5
3.8 No Material Adverse Change.......................................5
3.9 Litigation.......................................................5
3.10 Representations Complete.........................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................5
4.1 Corporate Organization...........................................5
4.2 Authorization....................................................5
4.3 No Violation.....................................................6
4.4 Brokers and Finders..............................................6
4.5 Corporate Approval...............................................6
4.6 Investment Intent................................................6
4.7 Access to Information............................................6
4.8 Accredited Investor..............................................6
4.9 Restricted Securities............................................6
4.10 Further Limitations on Disposition...............................7
ARTICLE V COVENANTS...........................................................7
5.1 Further Assurances...............................................7
5.2 Board Representation.............................................8
5.3 Right of First Refusal...........................................8
5.4 Market Stand-Off.................................................9
5.5 Listing of Common Stock..........................................9
5.6 Standstill Agreement.............................................9
ARTICLE VI DELIVERIES AT CLOSING.............................................10
6.1 Warrant to Purchase Common Stock................................10
</TABLE>
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<TABLE>
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6.2 Registration Rights Agreement...................................10
6.3 Stock Certificate...............................................10
6.4 Legal Opinion...................................................10
6.5 Payment of Consideration........................................12
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION......12
7.1 Survival of Representations.....................................12
7.2 Statements as Representations...................................12
7.3 Indemnification by the Company..................................12
7.4 Indemnification by Purchaser....................................13
7.5 Limitation of Liability.........................................13
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................13
8.1 Amendment and Modifications.....................................13
8.2 Waiver of Compliance............................................13
8.3 Expenses........................................................13
8.4 Remedies Waiver.................................................14
8.5 Notices.........................................................14
8.6 Assignment......................................................15
8.7 Publicity.......................................................15
8.8 Severability....................................................15
8.9 Arbitration of Disputes.........................................15
8.10 Governing Law...................................................16
8.11 Counterparts....................................................16
8.12 Headings........................................................16
8.13 Third Parties...................................................16
8.14 Further Assurances..............................................16
8.15 Schedules.......................................................16
8.16 Entire Agreement................................................16
</TABLE>
LIST OF SCHEDULES
Company Disclosure Schedule
Purchaser Disclosure Schedule
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("AGREEMENT") is made and entered
into as of October 12, 1999, by and between THE viaLINK COMPANY, an Oklahoma
corporation (the "COMPANY"), and i2 TECHNOLOGIES, INC., a Delaware corporation
("PURCHASER").
RECITALS
WHEREAS, the Company is authorized to issue shares of the Company's
$0.001 par value common stock ("COMMON STOCK") and the warrant to purchase
shares of Common Stock described herein;
WHEREAS, in connection with and in consideration for the payment by
Purchaser to the Company of $5,000,000 at Closing (as hereinafter defined), the
Company shall issue to Purchaser (i) 223,884 shares (the "SHARES") of Common
Stock and (ii) a warrant to purchase an additional 186,567 shares of the
Company's Common Stock (the "WARRANT SHARES") at an exercise price of $26.80
per share (the "WARRANT"), exercisable at any time on or before the date which
is two years following the Closing, all as more fully described herein and the
attachments hereto; and
WHEREAS, Purchaser and the Company have on this date executed and
entered into certain other agreements to set forth their mutual agreements
regarding (i) the marketing and sale of products and services and certain other
matters, in the form of an Alliance Agreement and a Software License, and (ii)
the registration of the Shares and the Common Stock issuable upon exercise of
the Warrant, in the form of a Registration Rights Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations,
warranties and agreements herein contained, on the Closing Date, the Company
shall issue to Purchaser, and Purchaser shall acquire from the Company, the
Shares and the Warrant free and clear of all liens, security interests,
options, rights, mortgages, pledges, restrictions on transferability of any
type (other than (i) restrictions on transferability as may be applicable under
federal and state securities laws, (ii) as set forth herein or therein and/or
(iii) those created by Purchaser) and Purchaser shall pay on the Closing Date
to the Company $5,000,000 (the "CASH CONSIDERATION") by wire transfer to such
account as is designated by the Company to Purchaser in writing.
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ARTICLE II
CLOSING
2.1 The Closing. The consummation of the sale and purchase of
the Shares and the Warrant referred to in Section 1.1 (the "CLOSING") shall
take place on October 12, 1999 at the offices of Winstead Sechrest & Minick
P.C., 5400 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270, or at such
other date, time or place as the parties hereto mutually agree, either verbally
or in writing. Such date is referred to herein as the "CLOSING DATE," and the
Closing shall be deemed to be effective as of 9:00 a.m., Central Time, on the
Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in a document of even date herewith and delivered
by the Company to Purchaser prior to the execution and delivery of this
Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents and
warrants to Purchaser as follows:
3.1 Organization, Standing and Power. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The Company has the corporate power
to own, lease and operate its properties and to carry on its business as now
being conducted and as proposed to be conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the failure to
be so qualified and in good standing would have a material adverse effect on
the Company. The Company is not in violation of any of the provisions of its
Certificate of Incorporation or Bylaws.
3.2 Capital Structure. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock, par value $0.001 per
share and 10,000,000 shares of preferred stock, par value $0.001 per share, of
which there were issued and outstanding as of the close of business on
September 30, 1999, 3,307,318 shares of Common Stock and no shares of preferred
stock. All outstanding shares of Common Stock have been duly authorized,
validly issued, fully paid and are nonassessable and free of any liens or
encumbrances other than any liens or encumbrances created by or imposed upon
the holders thereof and have been issued in compliance with all federal and
state securities laws. The Company has no subsidiaries. Except as set forth in
Section 3.2 of the Company Disclosure Schedule, there are no (a) options,
warrants, stock appreciation rights or other similar rights, agreements,
arrangements or commitments of any character obligating the Company to issue or
sell shares of its capital stock, (b) notes, bonds, debentures or other
indebtedness of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
the shareholders of the Company may vote or (c) outstanding contractual
obligations of the Company to repurchase, redeem or otherwise acquire any
shares of Common Stock or any other capital stock of, or any equity interest
in, the Company. The Shares, the Warrant and the Warrant Shares (collectively,
the "SECURITIES") have been duly authorized for issuance and sale to the
Purchaser pursuant to this Agreement and are validly issued. The Shares are,
and, when issued pursuant to the terms and conditions set forth in the Warrant,
the Warrant Shares will be, fully paid and non-assessable, and no holder of
Securities is or will be subject to personal
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liability with respect to the obligations of the Company by reason of being
such a holder. The Shares and the Warrant are, and the Warrant Shares, when
issued, shall be, free of preemptive rights or rights of first refusal created
by statute, the Company's Certificate of Incorporation or Bylaws or any
agreement to which the Company is a party or by which it is bound and, based on
the representations of Purchaser contained in Sections 4.6, 4.7 and 4.8 of this
Agreement, are and shall be issued in compliance with all federal and state
securities laws. Except for Form D filings required to perfect exemptions under
applicable federal and/or state securities laws and the filing of an
application to list additional shares of Common Stock with the Nasdaq SmallCap
Market, no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority
or agency, domestic or foreign is necessary or required in connection with the
due authorization, execution and delivery of the Operative Agreements (as
hereinafter defined) or for the offering, issuance or sale of the Securities.
The form of certificate that will be used to evidence the Shares will comply in
all material respects with all applicable statutory requirements, with any
applicable requirements of the Certificate of Incorporation and Bylaws of the
Company and with the requirements of the Nasdaq SmallCap Market.
3.3 Authority. The Company has corporate power and authority
to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement, the Alliance Agreement, the Software License and
the Warrant (collectively, the "OPERATIVE AGREEMENTS") and to consummate the
transactions contemplated by the Operative Agreements. The Company has taken
all action required by law, its Certificate of Incorporation and Bylaws or
otherwise to authorize the execution and delivery of this Agreement and the
other Operative Agreements and the consummation of the transactions
contemplated hereby and thereby. The Operative Agreements have been duly
executed and delivered by the Company. This Agreement and the other Operative
Agreements are valid and binding agreements of the Company enforceable in
accordance with their terms, except that: (a) the enforceability of this
Agreement and the other Operative Agreements may be subject to general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law; (b) the enforceability of this Agreement
and the other Operative Agreements is subject to and may be limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium, and other
similar laws relating to or affecting the rights of creditors generally; and
(c) any rights to indemnification and contribution may be limited by federal or
state securities laws and public policy considerations. The execution and
delivery of this Agreement and the other Operative Agreements does not, and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) and compliance by the Company with its
obligations under the Operative Agreements (a) shall not, with or without
notice or lapse of time, or both, conflict with or constitute a breach of, or
default or acceleration event under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to (i) any provision of the Certificate of Incorporation or Bylaws of
the Company or (ii) any material mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or its properties or assets. Assuming the accuracy of the
representations and warranties of Purchaser in Sections 4.6, 4.7 and 4.8 of
this Agreement and except as expressly contemplated by this Agreement or the
agreements, instruments and documents contemplated hereby, no consent, approval
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or
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other governmental authority (each a "GOVERNMENTAL ENTITY"), is required by or
with respect to the Company or in connection with the execution and delivery of
this Agreement or the other Operative Agreements or the consummation by the
Company of the transactions contemplated hereby or thereby, and (b) will not
result in any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its properties, assets or operations.
3.4 SEC Documents; Financial Statements. The Company has made
available to Purchaser each statement, report, registration statement (with
each prospectus in the form filed pursuant to Rule 424(b) of the Securities Act
of 1933, as amended (the "SECURITIES ACT")), definitive proxy statement, and
other filing filed with the Securities and Exchange Commission ("SEC") by the
Company since December 31, 1998 (collectively, the "COMPANY SEC DOCUMENTS"). In
addition, the Company has made available to Purchaser all exhibits to the
Company SEC Documents filed prior to the date hereof. As of their respective
filing dates, the Company SEC Documents were filed on a timely basis and
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the Securities Act,
and none of the Company SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
in which they were made, not misleading except to the extent corrected by a
subsequently filed Company SEC Document. The financial statements of the
Company, including the notes thereto, included in the Company SEC Documents
(the "COMPANY FINANCIAL STATEMENTS") (i) have been prepared in accordance with
the published regulations of the SEC and in accordance with generally accepted
accounting principles ("GAAP") (except to the extent as may be indicated in the
notes thereto and with respect to interim Company Financial Statements included
in Quarterly Reports on Form 10-QSB (promulgated under the Exchange Act), as
required by Form 10-QSB) and (ii) fairly present the financial position of the
Company as of the respective dates thereof and the results of its operations
and cash flows for the periods indicated (including, in the case of any
unaudited interim financial statements, reasonable estimates of normal and
recurring year-end adjustments).
3.5 Absence of Undisclosed Liabilities. The Company has no
material obligations or liabilities of any nature (matured or unmatured, fixed
or contingent) other than (i) those set forth or adequately provided for in the
Balance Sheet included in the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended June 30, 1999 (the "COMPANY BALANCE SHEET"), (ii) those
incurred in the ordinary course of business and not required to be set forth in
the Company Balance Sheet under generally accepted accounting principles, and
(iii) those incurred in the ordinary course of business since the Company
Balance Sheet Date and consistent with past practice.
3.6 Broker's and Finders' Fees. The Company has not incurred,
nor shall it incur, directly or indirectly, any liability for brokerage or
finders' fees or agents' commissions or investment bankers' fees or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
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3.7 Board Approval. The Board of Directors of the Company has
approved this Agreement and the transactions contemplated hereby. No vote or
consent of the Company's stockholders is required for the consummation of the
transactions contemplated hereby.
3.8 No Material Adverse Change. Since the date of the Company
Balance Sheet, the Company has conducted its business in the ordinary course
and there has not occurred: (a) any material adverse change in the financial
condition, liabilities, assets or business of the Company other than continuing
operating losses and declining stock price; (b) any amendment or change in the
Certificate of Incorporation or Bylaws of the Company; or (c) any damage to,
destruction or loss of any assets of the Company, (whether or not covered by
insurance) that materially and adversely affects the financial condition or
business of the Company.
3.9 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which the Company has received
any notice of assertion against the Company which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement.
3.10 Representations Complete. None of the representations or
warranties made by the Company herein or in any Schedule hereto, including the
Company Disclosure Schedule, or certificate furnished by the Company pursuant
to this Agreement, or the Company SEC Documents, when all such documents are
read together in their entirety, contains or shall contain at the Closing any
untrue statement of a material fact, or omits or shall omit at the Closing to
state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as disclosed in a document of even date herewith and delivered
by Purchaser to the Company prior to the execution and delivery of this
Agreement (the "PURCHASER DISCLOSURE SCHEDULE"), Purchaser represents and
warrants to Company as follows:
4.1 Corporate Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser has full corporate power and authority to carry on its
business as it is now being conducted.
4.2 Authorization. Purchaser has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Purchaser has taken all action required by law, its
Certificate of Incorporation and Bylaws or otherwise to authorize the execution
and delivery of this Agreement and the other Operative Agreements and the
consummation of the transactions contemplated hereby and thereby. This
Agreement and the other Operative Agreements are valid and binding agreements
of Purchaser enforceable in accordance with their terms, except that: (a) the
enforceability of this Agreement and the other Operative Agreements may be
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and (b) the
enforceability of this Agreement and the other Operative Agreements may be
subject to or limited by bankruptcy,
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insolvency, reorganization, arrangement, moratorium, or other similar laws
relating to or affecting the rights of creditors generally.
4.3 No Violation. The execution and delivery of this
Agreement and the other Operative Agreements do not, and the consummation of
the transactions contemplated hereby and thereby shall not, conflict with, or
result in any violation of, or default under (with or without notice or lapse
of time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under (i) any provision of
the Certificate of Incorporation or Bylaws of Purchaser or (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Purchaser or its properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to Purchaser or in connection with the execution and delivery of this
Agreement or the other Operative Agreements or the consummation by Purchaser of
the transactions contemplated hereby or thereby.
4.4 Brokers and Finders. Purchaser has not incurred, nor
shall it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated hereby.
4.5 Corporate Approval. All necessary corporate actions have
been taken by Purchaser for the approval of Purchaser to enter this Agreement
and the transactions contemplated hereby. No vote or consent of the
stockholders of Purchaser is required for the consummation of the transactions
contemplated hereby.
4.6 Investment Intent. Purchaser is purchasing the Shares and
the Warrant for its own account and not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same, and does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of such securities.
4.7 Access to Information. Purchaser has received or has had
full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Securities. Purchaser
has had an opportunity to ask questions of and receive answers from the Company
and to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Purchaser or to which the
Company has access.
4.8 Accredited Investor. Purchaser is an "accredited
investor" within the meaning of SEC Rule 501 of Regulation D, as presently in
effect. The principal place of business and the principal offices of the
Purchaser are located in Irving, Texas.
4.9 Restricted Securities. Purchaser understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in
transactions not involving a public offering and that under
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such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances. In
this connection, Purchaser represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
4.10 Further Limitations on Disposition. Purchaser agrees not
to offer, sell, exchange, transfer, pledge or otherwise dispose of any of the
Securities unless at that time either:
(a) such transaction is permitted pursuant to the provisions
of Rule 144 under the Securities Act or another exemption from
registration under the Securities Act and all applicable state
securities laws;
(b) a registration statement under the Securities Act (a
"REGISTRATION STATEMENT") covering such securities proposed to be
sold, transferred or otherwise disposed of, describing the manner and
terms of the proposed sale, transfer or other disposition, and
containing a current prospectus, is filed with the SEC and all
applicable state securities law agencies and made effective under the
Securities Act and all applicable state securities laws; or
(c) an authorized representative of the SEC and all
applicable state securities law agencies shall have rendered written
advice to Purchaser (with a copy thereof and of all other related
communications delivered to the Company) to the effect that the SEC
and/or such state securities law agencies will take no action, or that
the staff of the SEC and/or such state securities law agencies will
recommend that the SEC and/or such state securities law agencies, as
applicable, take no action, with respect to the proposed offer, sale,
exchange, transfer, pledge or other disposition if consummated.
All certificates representing the Securities deliverable to Purchaser
and any certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend that such securities may only be sold
or disposed of in accordance with (i) the provisions of the Securities Act, the
rules and regulations thereunder and any applicable state securities laws, (ii)
pursuant to an effective registration statement or (iii) pursuant to an
exemption from the registration/qualification requirements of the Securities
Act and any applicable state securities laws. The Company, at its reasonable
discretion, may cause stop transfer orders to be placed with its transfer agent
with respect to the certificates for such securities but not as to the
certificates for any part of such securities as to which said legend is no
longer required.
ARTICLE V
COVENANTS
5.1 Further Assurances. Upon the terms and subject to the
conditions hereof, each of the parties hereto agrees to use commercially
reasonable efforts to take or cause to be taken all actions and to do or cause
to be done all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and shall use commercially
reasonable efforts to obtain all necessary waivers, consents and approvals and
to effect all
7
<PAGE> 11
necessary registrations and filings to be obtained in connection with the
transactions contemplated by this Agreement.
5.2 Board Representation. For so long as (i) Purchaser shall
beneficially own (as such term is defined for purposes of the Securities Act
and the rules and regulations thereunder) not less than 4.0% of the then issued
and outstanding Common Stock and the Alliance Agreement has not been terminated
or (ii) Purchaser shall beneficially own not less than 10.0% of the then issued
and outstanding Common Stock, the Purchaser shall have the right to designate
one nominee to the Board of Directors of the Company. The Company shall include
such nomination in all proxy and annual meeting materials provided to its
shareholders, and shall not make any competing nomination or recommend against
election of such nominee.
5.3 Right of First Refusal. Subject to the terms and
conditions specified in this Section 5.3, the Company hereby grants to the
Purchaser a right of first refusal with respect to future sales by the Company
of any shares of, or securities convertible into or exercisable for any shares
of, any class of its capital stock (collectively, "Stock"). Each time the
Company proposes to offer any Stock, the Company shall first make an offering
to the Purchaser in accordance with the following provisions:
(a) the Company shall deliver a notice by certified mail
("Notice") to the Purchaser stating (i) its bona fide intention to
offer such Stock, (ii) the quantity of such Stock to be offered, and
(iii) the price (or reasonable price range) and terms, if any, upon
which it proposes to offer such Stock;
(b) by written notification received by the Company, within
20 calendar days after giving of the Notice, the Purchaser may
irrevocably elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Stock which equals
the proportion that the number of shares of Common Stock issued and
held (including any shares issuable upon conversion of any Warrant
then held) by Purchaser bears to the total number of shares of common
stock of the Company then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities);
(c) if all Stock which Purchaser is entitled to obtain
pursuant to Section 5.3(b) are not elected to be obtained as provided
in Section 5.3(b), the Company may, during the 120-day period
following the expiration of the period provided in Section 5.3(b),
offer the remaining unsubscribed portion of such Stock to any person
or persons at a price not substantially less than, and upon terms not
substantially more favorable to the offeree than, those specified in
the Notice. If the Company does not enter into an agreement for the
sale of the Stock within such period, or if such agreement is not
consummated within 120 days of the execution thereof, the right
provided hereunder shall be deemed to be revived and such Stock shall
not be offered unless first reoffered to the Purchaser in accordance
herewith;
(d) the right of first refusal in this Section 5.3 shall not
be applicable (i) to the issuance or sale of shares of common stock
(or options therefor) to employees, officers, directors, advisors or
consultants of the Company for the primary purpose of soliciting or
retaining their employment, (ii) the issuance of securities pursuant
to the conversion or
8
<PAGE> 12
exercise of convertible or exercisable securities, (iii) the issuance
of securities in connection with a bona fide business acquisition of
or by the Company, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise, or (iv) the issuance and sale
of securities in an underwritten public offering if the managing
underwriter(s) of such offering shall notify Purchaser in writing that
the exercise of Purchaser's right of first refusal pursuant to this
Section 5.3 would be reasonably likely to materially adversely effect
the success of such offering; and
(e) the right of first refusal will terminate immediately
prior to the closing of any merger or consolidation of the Company (i)
whereby the Company's equity changes by more than 50% or (ii) in which
the Company is not the surviving entity if the shareholders of the
Company immediately prior to such merger or consolidation do not own
at least 50% of the equity of the surviving entity after the closing
of such merger or consolidation.
5.4 Market Stand-Off. Notwithstanding anything to the
contrary in this Agreement, without the prior written consent of the Company,
(a) Purchaser shall not sell or otherwise dispose of Securities prior to the
90th day after the Closing, and (b) if requested by the managing underwriter of
any underwritten public offering of Common Stock by the Company for its own
account, Purchaser shall agree not to sell or otherwise dispose of Securities
held by Purchaser in any transaction other than pursuant to such underwriting
for such period (not to exceed 180 days) as determined in the discretion of the
Company or such underwriter (such agreement to be in writing in a form
satisfactory to the Company and such managing underwriter), provided that
Purchaser shall not be required to enter into such an agreement unless each
person or entity participating in such offering, and each director and
executive officer of the Company, enters into a substantially identical
agreement relating to such underwriting. The Company may impose stop-transfer
instructions to its transfer agent with respect to the securities subject to
the restriction described in this Section 5.4 until the end of the applicable
"lock-up" periods.
5.5 Listing of Common Stock. As soon as reasonably
practicable following the Closing Date, the Company will use its best efforts
to cause the Shares and Warrant Shares to be listed for trading on the Nasdaq
SmallCap Market.
5.6 Standstill Agreement. As of the date of this Agreement,
except as previously disclosed by Purchaser to the Company in writing,
Purchaser confirms that neither it nor its affiliates beneficially own any debt
or equity securities of the Company, or any direct or indirect options or other
rights to acquire any such securities (hereinafter collectively referred to as
"COMPANY SECURITIES"). Purchaser agrees that neither Purchaser nor any of its
affiliates will:
(a) except in accordance with the terms of a specific request
from the Company, propose or publicly announce or otherwise disclose
an intent to propose, or enter into or agree to enter into, singly or
with any other person (directly or indirectly), (i) any form of
business combination, acquisition (whether of securities or assets),
or other transaction relating to the Company or any majority-owned
affiliate thereof or (ii) any form of restructuring, recapitalization
or similar transaction with respect to the Company or any
majority-owned affiliate thereof,
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<PAGE> 13
(b) make, initiate or participate in any demand, request or
proposal (other than a proposal made privately to the Board of
Directors of the Company or any officer of the Company) to amend,
waive or terminate any provision of this Agreement, or
(c) (i) except as expressly authorized by the last sentence
of this Section 5.6, acquire, or offer, propose or agree to acquire,
by purchase or otherwise, any Company Securities (now existing or
hereafter created), (ii) except in accordance with the terms of a
specific request from the Company, make, initiate, or in any way
participate in, any solicitation of proxies with respect to any
Company Securities (now existing or hereafter created) (including by
the execution of action by written consent), (iii) except in
accordance with the terms of a specific request from the Company,
become a participant in any election contest with respect to the
Company, (iv) except in accordance with the terms of a specific
request from the Company, participate in or encourage the formation of
any partnership, syndicate, or other group (A) which owns or seeks or
offers to acquire beneficial ownership of any Company Securities other
than a partnership, syndicate or other group which in the aggregate
owns less than 19.9% of the voting power of all then outstanding
Company Securities, (B) which seeks to effect control of the Company
or (C) for the purpose of circumventing any provision of this
Agreement, or (v) otherwise act, alone or in concert with others
(including by providing financing for another person), to seek or to
offer to control or influence, in any manner, the management, board of
directors, or policies of the Company and or its affiliates except
pursuant to the board nominee provided pursuant to Section 5.2.
Notwithstanding the foregoing, nothing contained herein will be deemed
to restrict Purchaser from taking any action under subsection (c)(i) above if,
upon consummation of such action, all Company Securities held by Purchaser,
directly or indirectly, would represent nineteen and nine tenths percent
(19.9%) or less of the voting power of all then outstanding Company Securities.
ARTICLE VI
DELIVERIES AT CLOSING
6.1 Warrant to Purchase Common Stock. The Company shall
execute and deliver to Purchaser the Warrant.
6.2 Registration Rights Agreement. The Company and Purchaser
shall execute and enter into the Registration Rights Agreement.
6.3 Stock Certificate. The Company shall issue and deliver to
Purchaser a stock certificate for the Shares in accordance with the provisions
of this Agreement.
6.4 Legal Opinion. Counsel for the Company shall deliver, in
form and substance satisfactory to counsel for the Purchaser, a legal opinion
to the effect set forth below:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Oklahoma. The Company has
10
<PAGE> 14
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Company SEC Documents
and to enter into and perform its obligations under each of the
Operative Agreements.
(b) The Securities have been duly authorized for issuance and
sale to the Purchaser pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration set forth herein or in the Warrant, as the case may
be, will be validly issued and fully paid and non-assessable, and no
holder of Securities is or will be subject to personal liability with
respect to the obligations of the Company by reason of being such a
holder. The issuance of the Securities is not subject to preemptive or
other similar rights of any securityholder of the Company created by
statute, under the Certificate of Incorporation or Bylaws of the
Company or under any documents or agreements filed or incorporated by
reference by the Company with the SEC as exhibits to its registration
statement on Form SB-2 (Reg. No. 333-83315), including all amendments
thereto (the "SEC EXHIBITS").
(c) The Operative Agreements have been duly authorized,
executed and delivered by the Company. This Agreement, the
Registration Rights Agreement and the Warrant constitute the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be subject to or
limited by (i) bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent transfer and other similar laws affecting the
rights of creditors generally and (ii) general equitable principles
(whether relief is sought at law or in equity), including concepts of
materiality, reasonableness, good faith and fair dealing; and except
as any rights to indemnification and contribution may be limited by
federal or state securities laws and public policy considerations.
(d) The form of certificate used to evidence the Shares
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the Certificate of
Incorporation and Bylaws of the Company and the requirements of the
Nasdaq SmallCap Market.
(e) Except for Form D filings required to perfect exemptions
under applicable federal and/or state securities laws and the filing of
an application to list additional shares of Common Stock with the
Nasdaq SmallCap Market, no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign is
necessary or required in connection with the due authorization,
execution and delivery of the Operative Agreements or for the offering,
issuance or sale of the Securities.
(f) The execution, delivery and performance of the Operative
Agreements and the consummation of the transactions contemplated in
the Operative Agreements (including the issuance and sale of the
Securities) and compliance by the Company with its obligations under
the Operative Agreements do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or acceleration event under or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
11
<PAGE> 15
SEC Exhibit to which the Company is a party or by which it may be
bound, or to which any of the property or assets of the Company are
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect
on the Company), nor will such action result in any violation of the
provisions of the Certificate of Incorporation or Bylaws of the
Company, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to such counsel, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties, assets or
operations.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it
is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
6.5 Payment of Consideration. Purchaser shall deliver the
Cash Consideration specified in Section 1.1.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
7.1 Survival of Representations. All representations and
warranties of the parties as contained in this Agreement (including the
Disclosure Schedules) shall survive the Closing and shall terminate on the date
that is one year after the Closing; provided that there shall be no limitation
period for matters involving fraud or intentional misrepresentation nor for
covenants and agreements of the parties.
7.2 Statements as Representations. All statements contained
in the Company Disclosure Schedule and any certificate delivered pursuant to
this Agreement shall be deemed representations and warranties within the
meaning of Section 7.1 hereof.
7.3 Indemnification by the Company . Subject to the
limitations set forth in this Article VII, the Company hereby agrees to
indemnify, defend and hold harmless Purchaser, any subsidiary, director,
officer, employee, agent or representative of Purchaser (individually, a
"PURCHASER INDEMNITEE" and collectively, "PURCHASER INDEMNITEES") from and
against all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including, without limitation,
interest, penalties, attorneys' fees and expenses (collectively, "DAMAGES")
asserted against, resulting from, imposed upon or incurred by the Purchaser
Indemnitees or any Purchaser Indemnitee, resulting from, or arising out of any
breach of any representation, warranty or agreement of the Company, contained
in or made pursuant to this Agreement. Exercise of the foregoing
indemnification rights shall be the sole remedy of any Purchaser Indemnitee
with respect to any breach by the Company of its representations or warranties
contained in this Agreement. The maximum aggregate liability of the Company
pursuant to this Section 7.3 with respect to any breach by the Company of such
representations
12
<PAGE> 16
or warranties will be limited to Five Million and 00/100 Dollars
($5,000,000.00), plus any amounts paid by Purchaser to exercise the Warrant,
whether such liability is asserted in an action brought in contract, in tort or
pursuant to some other theory and whether the possibility of such liability was
made known to or was foreseeable by the Company. Accordingly, the Purchaser
agrees to assume the responsibility for insuring against or otherwise bearing
the risk of greater damages.
7.4 Indemnification by Purchaser. Subject to the limitations
set forth in this Article VII, Purchaser hereby agrees to indemnify, defend and
hold harmless the Company, any subsidiary, director, officer, employee, agent
or representative of the Company (individually, an "COMPANY INDEMNITEE" and
collectively, "COMPANY INDEMNITEES") from and against all Damages asserted
against, resulting from, imposed upon or incurred by the Company Indemnitees or
any Company Indemnitee, resulting from, or arising out of any breach of any
representation, warranty or agreement of Purchaser, contained in or made
pursuant to this Agreement. Exercise of the foregoing indemnification rights
shall be the sole remedy of any Company Indemnitee with respect to any breach
by Purchaser of its representations or warranties contained in this Agreement.
7.5 Limitation of Liability. NEITHER PARTY SHALL HAVE ANY
LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY IS AN EXPRESSLY BARGAINED FOR
PORTION OF THE CONSIDERATION FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Amendment and Modifications. This Agreement may be
amended, modified and supplemented only by written agreement between the
parties hereto which states that it is intended to be a modification of this
Agreement.
8.2 Waiver of Compliance. Any failure of the Company or
Purchaser to comply with any obligation, covenant, agreement or condition
herein may be expressly waived in writing by the other party, but such waiver
or failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.3 Expenses. The parties agree that all fees and expenses
incurred by them in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such fees and
expenses, including, without limitation, all fees of counsel, actuaries and
accountants.
13
<PAGE> 17
8.4 Remedies Waiver. All rights and remedies existing under
this Agreement are cumulative to and not exclusive of, any rights or remedies
otherwise available under applicable law. No failure on the part of any party
to exercise or delay in exercising any right hereunder shall be deemed a waiver
thereof, nor shall any single or partial exercise preclude any further or other
exercise of such or any other right. No right or remedy of a party shall be
deemed waived unless expressly made a term, covenant or condition in this
Agreement.
8.5 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or by commercial
delivery service, sent by facsimile transmission with confirmation of receipt,
or mailed by certified or registered mail (return receipt requested) with
postage prepaid, to the parties at the following address (or such other address
for a party as shall be specified by like notice):
if to the Company, to:
The viaLINK Company
13800 Benson Rd.
Edmond, Oklahoma 73103
Attn: J. Andrew Kerner
Fax: (405) 936-2599
with a copy (which shall not constitute notice) to:
Richard M. Klinge & Associates, P.C.
510 E. Memorial Road, Suite C-1
Oklahoma City, Oklahoma 73114
Attention: Richard M. Klinge, Esq.
Fax: (405) 775-9003
and a copy (which shall not constitute notice) to:
Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attn: Robert E. Crawford, Jr., Esq.
Fax: (214) 745-5390
if to Purchaser, to:
i2 Technologies, Inc.
909 E. Las Colinas Blvd., 16th Floor
Irving, Texas 75039
Attn: Robert C. Donohoo
Fax: (214) 860-6893
14
<PAGE> 18
with a copy (which shall not constitute notice) to:
Brobeck, Phleger & Harrison LLP
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Attn: Ronald G. Skloss
fax: (512) 477-5813
8.6 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned or
delegated by any of the parties hereto without the prior written consent of the
other party.
8.7 Publicity. Neither the Company nor Purchaser shall make
or issue, or cause to be made or issued, any announcement or written statement
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party. This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or state
governmental agency or by obligations pursuant to any listing agreement with
any national securities exchange or with the National Association of Securities
Dealers, Inc., except that the party required to make such announcement shall,
whenever practicable, consult with the other party concerning the timing and
content of such announcement before such announcement is made.
8.8 Severability. If any portion of this Agreement shall be
deemed illegal, void or unenforceable by a court of competent jurisdiction, the
remaining portions will continue in full force and effect and the application
of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto.
8.9 Arbitration of Disputes. The parties agree that any
controversy or claim (whether such controversy or claim is based upon or sounds
in statute, contract, tort or otherwise) arising out of or relating to this
Agreement, any performance or dealings between the parties with respect to this
Agreement, or any dispute arising out of the interpretation or application of
this Agreement, which the parties are not able to resolve, shall be settled
exclusively by arbitration in Dallas, Texas by a single arbitrator pursuant to
the American Arbitration Association's Commercial Arbitration Rules then in
effect and judgment upon the award rendered by the arbitrator shall be entered
in any court having jurisdiction thereof and such arbitrator shall have the
authority to grant injunctive relief in a form similar to that which a court of
law would otherwise grant. The arbitrator shall be chosen from a panel of
licensed attorneys having at least fifteen (15) years of professional
experience who are familiar with the subject matter of this Agreement. The
arbitrator shall be appointed within thirty (30) days of the date the demand
for arbitration was sent to the other party. Discovery shall be permitted in
accordance with the Federal Rules of Civil Procedure. If an arbitration
proceeding is brought pursuant to this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and necessary
disbursements incurred in addition to any other relief to which such party may
be entitled.
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<PAGE> 19
8.10 Governing Law. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of Texas (excluding its choice of laws rules).
8.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.12 Headings. The headings of the Sections and Articles of
this Agreement are inserted for convenience only and shall not constitute a
part hereof or affect in any way the meaning or interpretation of this
Agreement.
8.13 Third Parties. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or
corporation other than the parties hereto and their successors or assigns, any
rights or remedies under or by reason of this Agreement.
8.14 Further Assurances. Each of the parties hereto agrees
that from time to time, at the request of any of the other parties hereto and
without further consideration, it will execute and deliver such other documents
and take such other action as such other party may reasonably request in order
to consummate more effectively the transactions contemplated hereby.
8.15 Schedules. The Schedules to this Agreement are deemed
incorporated in this Agreement and may contain information that is not
expressly required to be disclosed by this Agreement.
8.16 Entire Agreement. This Agreement, including the
Schedules hereto, the other documents and the certificates delivered pursuant
to the terms hereof, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto. This Agreement has
been negotiated by the parties and their respective counsel and will be
interpreted fairly and in accordance with its terms and without strict
construction in favor of or against either party.
[Signature page follows.]
16
<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereto duly
authorized, all as of the day and year first above written.
i2 TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Robert C. Donohoo
---------------------------
Name: Robert C. Donohoo
Title: Corporate Counsel
THE viaLINK COMPANY,
an Oklahoma corporation
By: /s/ J. Andrew Kerner
---------------------------
Name: J. Andrew Kerner
Title: Chief Financial Officer
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
<PAGE> 1
EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE viaLINK COMPANY
AND
i2 TECHNOLOGIES, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS.............................................................................................1
ARTICLE 2 REGISTRATION RIGHTS.....................................................................................3
2.1 Demand Registration.............................................................................3
2.2 Piggyback Registrations.........................................................................3
2.3 Registration Procedures.........................................................................4
2.4 Payment of Expenses.............................................................................7
2.5 Participation in Underwritten Registrations.....................................................7
2.6 Information of the Holder.......................................................................8
2.7 Rule 144 Information............................................................................8
2.8 Delay in Demand Registration....................................................................8
ARTICLE 3 INDEMNIFICATION.........................................................................................8
3.1 Indemnification by the Company..................................................................8
3.2 Indemnification by Holder.......................................................................9
3.3 Notice: Defense of Claims.......................................................................9
3.4 Contribution....................................................................................9
3.5 Survival.......................................................................................10
ARTICLE 4 MISCELLANEOUS..........................................................................................10
4.1 Notices........................................................................................10
4.2 Interpretation.................................................................................12
4.3 Counterparts...................................................................................12
4.4 Entire Agreement...............................................................................12
4.5 Amendments and Waivers.........................................................................12
4.6 Successors and Assigns.........................................................................12
4.7 Severability...................................................................................12
4.8 Remedies Cumulative............................................................................13
4.9 Governing Law..................................................................................13
4.10 Rules of Construction..........................................................................13
4.11 Currency.......................................................................................13
</TABLE>
i
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 12, 1999, by and between The viaLink Company, an
Oklahoma corporation (together with any successor entity, the "Company"), and i2
Technologies, Inc. (the "Holder").
R E C I T A L S:
A. The Company and the Holder are parties to a Securities
Purchase Agreement, dated October 12, 1999 (the "Purchase Agreement"),
providing, among other things, for the Holder's acquisition of shares of Common
Stock, par value $0.001 per share, of the Company ("Shares") and a warrant to
purchase shares of Common Stock of the Company (the "Warrant").
B. The execution and delivery of this Agreement by the Company
and the Holder is required in connection with the transactions contemplated by
the Purchase Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated:
"Closing" means the closing of the transactions contemplated
by the Securities Purchase Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's common stock, par value
$0.001 per share.
"Demand Registration" means the registration provided for in
Section 2.1 hereof.
"1933 Act" means the United States Securities Act of 1933, as
amended.
"Other Securities" means any stock (other than Common Stock)
or other securities of the Company or any other person (corporate or otherwise)
(i) which the holder of this Warrant at any time shall be entitled to receive,
or shall have received, on the exercise of the Warrant, in lieu of or in
addition to shares of Common Stock, or (ii) which at any time shall be
<PAGE> 4
issuable or shall have been issued in exchange for or in replacement of shares
of Common Stock.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Piggyback Registration" means the registration provided for
in Section 2.2 hereof.
"Potential Material Event" means any of the following: (a) the
possession by the Company of material non-public information required to be
disclosed in a Company registration statement and the determination in good
faith by the Board of Directors of the Company that disclosure of such
information in the registration statement at that time would be detrimental to
the business and affairs of the Company; or (b) any material engagement or
activity by the Company which would, in the good faith determination of the
Board of Directors of the Company, if disclosed in the registration statement at
such time, be materially and adversely affected, which determination shall be
accompanied by a good faith determination by the Board of Directors of the
Company that the registration statement would be materially misleading absent
the inclusion of such information.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Article 2 hereof, including all
registration, Commission filing fees, fees of the National Association of
Securities Dealers or the Nasdaq SmallCap Market, all fees and expenses of
complying with securities or blue sky laws, printing expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance, and, in the case of a Piggyback
Registration pursuant to Section 2.2 hereof that is a firm commitment
underwritten public offering, the reasonable fees and expenses (not to exceed
$15,000) of one counsel to all selling Holders; provided, however, that
Registration Expenses shall exclude, and the sellers of the Registrable Stock
being registered shall pay, any underwriting discounts, commissions and transfer
taxes in respect of the Registrable Stock being registered.
"Registrable Stock" means (a) all Shares; (b) all shares of
Common Stock or Other Securities issued or issuable upon exercise of the
Warrant; and (c) any securities issued or issuable with respect to such shares
of Common Stock or Other Securities described in (a) or (b) above by way of a
stock dividend or stock split or in connection with a combination or
reclassification of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; provided, however, that any particular Registrable
Stock shall cease to be Registrable Stock when (x) a registration statement with
respect to the sale of such stock shall become effective under the 1933 Act and
such stock shall have been disposed of in accordance with such registration
statement, or (y) such stock shall have been sold pursuant to Rule 144; and
provided further, only securities issued by the Company will be deemed to be
Registrable Stock.
"Rule 144" means Rule 144 (or any successor provision) under
the 1933 Act.
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<PAGE> 5
ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand Registration. As soon as practicable after receipt
of a written request from the Holder, which request may be made on or after the
90th day after the Closing and prior to the third anniversary of the Closing,
the Company shall use its best efforts to file with the Commission a shelf
registration statement on Form S-1 or such other form of registration statement
which the Company is eligible to use and which is appropriate for the
contemplated transaction providing for the registration and resale on a
continuous or delayed basis by the Holder, pursuant to Rule 415 under the 1933
Act, covering such shares of Registrable Stock as the Holder(s) of not less than
50% of the Registrable Stock may designate, and the Company shall use its best
efforts to cause such Demand Registration to become or be declared effective as
soon as practicable. The Company shall use its best efforts to keep such Demand
Registration continuously effective, supplemented and amended pursuant to the
provisions of Section 2.3 hereof until the earlier of (i) the sale by the
Holders of all shares of Registrable Stock registered in such registration or
(ii) the date that is 180 days subsequent to the effective date of such
registration. The Holder(s) of Registrable Stock shall be entitled to one Demand
Registration under this Section 2.1. The Company may decline (for a period not
to exceed 60 days) to effect a Demand Registration if a Potential Material Event
exists at the time a Demand Registration is requested; provided, that all time
periods set forth in this Section 2.1 shall be tolled during such period.
2.2 Piggyback Registrations.
(a) Right to Piggyback. If subsequent to the 90th day
after the Closing and prior to the third anniversary of the
Closing the Company proposes to register any offering of its
securities under the Securities Act, whether or not for sale
for its own account (other than on Form S-4, Form S-8 or any
successor form), and the registration form to be used permits
the registration of an offering of Registrable Stock by a
Holder (a "Piggyback Registration"), then the Company will
give prompt notice to the Holder(s) of Registrable Stock of
its intention to effect such a registration (each a "Piggyback
Notice"). Subject to Section 2.2(b) below, the Company will
include in such registration all shares of Registrable Stock
that the Holder(s) thereof have requested the Company to
include in such registration by notice to the Company within
20 days after the date of receipt of the Company's notice.
Notwithstanding any other provisions of this Agreement
(including Section 2.3), the process (including timing) of
causing a Piggyback Registration to become effective and any
decision to terminate a Piggyback Registration will be within
the sole discretion of the Company.
(b) Priority on Registrations. If any Piggyback
Registration shall be an underwritten offering, the right of
any Holder's Registrable Stock to be included in such
Piggyback Registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such
Holder's Registrable Stock in the underwriting to the extent
provided herein Notwithstanding any other provision of
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<PAGE> 6
this Agreement, if the managing underwriter determines in good
faith that marketing factors require a limitation of the
number of shares to be underwritten, then the managing
underwriter may exclude shares (including Registrable Stock)
from the registration and the underwriting, and the number of
shares that may be included in the registration and the
underwriting will be allocated: (i) in the case of a
registration initiated by the Company for the purpose of
registering securities to be sold by the Company, first, to
the Company, second, to any party which as of the date hereof
has a contractual right to participate in such registration to
the extent such party's currently existing contractual
arrangements prohibit the Company from allowing the Holders of
Registrable Stock to participate pro rata with such party in
such registration, third to the Holders of Registrable Stock,
and fourth, to all other persons requesting that securities be
included in such registration; and (ii) in the case of a
registration initiated by the Company for the purpose of
registering securities to be sold by security holders of the
Company, first, to any party which has exercised its
contractual right to require that the Company initiate such
registration, second, to any party which as of the date hereof
has a contractual right to participate in such registration to
the extent such party's currently existing contractual
arrangements prohibit the Company from allowing the Holders of
Registrable Stock to participate pro rata with such party in
such registration, third to the Holders of Registrable Stock,
and fourth, to all other persons requesting that securities be
included in such registration. Within the category for the
allocation of securities to be included in the
registration/underwriting to which Holders of Registrable
Stock are assigned, such Holders will participate pro rata on
the basis of the number of shares that such Holders have
requested (consistent with their contractual rights) to be
included in the registration. If a Holder disapproves of the
terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the
managing underwriter. Any Registrable Stock excluded or
withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
2.3 Registration Procedures. In connection with any
registration hereunder, the Company will use its best efforts to, as soon as
practicable, effect the registration and the sale of such Registrable Stock in
accordance with the intended method of distribution thereof and will:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Stock
and use its best efforts to cause such registration statement
to become effective; provided, however, that before filing a
registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel,
if any, selected by the Holder copies of all such documents
proposed to be filed, which documents will be subject to the
reasonable comments of such counsel;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection
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<PAGE> 7
therewith as may be necessary to keep such registration
statement effective for such period as shall be required for
the disposition pursuant to the terms of such registration of
all Registrable Stock covered thereby (but not to exceed, in
the case of the Demand Registration, the date which is 180
days subsequent to the effective date of such registration),
and in each such case comply with the provisions of the 1933
Act with respect to the disposition of all securities covered
by such registration statement during such period in
accordance with the intended methods of distribution by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Stock such
reasonable number of copies of such registration statement,
each amendment and supplement thereto, in each case including
all exhibits, the prospectus included in such registration
statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order
to facilitate the disposition of the Registrable Stock then
held, owned and being registered by such seller;
(d) use its best efforts to register or qualify such
Registrable Stock under such other securities or blue sky laws
of such jurisdictions within the United States as any seller
reasonably requests to keep such registration or qualification
in effect for as long as the relevant registration statement
is in effect and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the
Registrable Stock then held, owned and being registered by
such seller; provided, however, that the Company will not be
required (i) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this subsection (d), (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to
general service of process in any such jurisdiction;
(e) notify each seller of such Registrable Stock, at
any time when a prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as
a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading and, at the request of any such seller, the Company
will promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such Registrable Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact
necessary to make the statements therein, in light of the
circumstances under which such statements are made, not
misleading;
(f) cause all such Registrable Stock to be listed on
each securities exchange on which similar securities issued by
the Company are then listed and to be qualified for trading on
each system on which similar securities issued by the Company
are from time to time qualified;
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<PAGE> 8
(g) provide a transfer agent and registrar for all
such Registrable Stock not later than the effective date of
such registration statement and thereafter maintain such a
transfer agent and registrar;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such
other actions as the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such
Registrable Stock;
(i) make available for inspection, subject to
execution and delivery of customary non-disclosure and non-use
agreements, by any underwriter participating in any
disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply, subject to execution and delivery of
customary non-disclosure and non-use agreements, all
information reasonably requested by any such underwriter,
attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least 12 months beginning with the first day of the Company's
first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(k) if such registration relates to an underwritten
offering, furnish to each seller of Registrable Stock a signed
counterpart of
(x) an opinion of counsel for the Company,
which may be the head in-house counsel for the
Company, and
(y) a "comfort" letter signed by the
independent public accountants who have certified the
Company's financial statements included or
incorporated by reference in such registration
statement,
in each case covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' comfort
letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' comfort letters to be
delivered to the underwriters in underwritten public offerings
of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the
accountants' comfort letter, such other financial matters;
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<PAGE> 9
(l) permit any Holder of Registrable Stock which
might be deemed, in the reasonable judgment of such Holder, to
be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or
comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel, if any,
should be included;
(m) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or
of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Registrable
Stock included in such registration statement for sale in any
jurisdiction, the Company will promptly notify each seller of
Registrable Stock thereof and will use its best efforts
promptly to obtain the withdrawal of such order; and
(n) in connection with any underwritten offering, the
Company shall have the right to designate the underwriter(s)
to manage such offering, subject (in the case of a Demand
Registration) to the approval of the Holder(s) of a majority
of the Registrable Stock to be included therein, which
approval will not be unreasonably withheld, conditioned or
delayed.
Each Holder agrees that if the Company has delivered preliminary or final
prospectuses to such Holder and after having done so the Company shall give
notice to such Holder that (A) the prospectus needs to be amended or
supplemented to comply with the requirements of the 1933 Act, (B) a stop order
suspending the effectiveness of the registration statement is issued by the
Commission or (C) a Potential Material Event shall exist, then such Holder shall
immediately cease making offers and sales of Registrable Stock and return all
remaining prospectuses to the Company if requested by the Company in such
notice; provided such cessation of making offers and sales of Registrable Stock
shall not exceed an aggregate of sixty (60) days in the case of the Demand
Registration. Following such amendment or supplement, the lifting of any stop
order or such time as the Potential Material Event shall no longer exist, the
Company shall promptly provide to such Holder notice that offers and sales may
be resumed and, to the extent appropriate, revised prospectuses, and such Holder
shall then be free to resume making offers of the Registrable Stock, or any
portion thereof, and the Company's obligation to maintain the effectiveness of
the registration statement, if any, shall be extended by an equal amount of
time.
2.4 Payment of Expenses. The Company shall pay all
Registration Expenses in connection with the Demand Registration and any
Piggyback Registration. All fees and disbursements of counsel (except to the
extent comprising "Registration Expenses" pursuant to Article 1 hereof),
accountants and other experts retained by the Holder shall be borne by the
Holder.
2.5 Participation in Underwritten Registrations. The Holder
may not participate in any registration hereunder which is underwritten unless
the Holder (a) agrees to sell the Holder's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements; and (b) completes and executes all
questionnaires, powers of attorney, indemnities, standstill or holdback
agreements,
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<PAGE> 10
underwriting agreements and other documents required under the terms of such
underwriting arrangements, provided that if the Holder's Registrable Stock is
included in any underwritten registration, the Holder shall not be required to
make any representations or warranties to the Company or the underwriters other
than representations and warranties regarding the Holder and the Holder's
intended method of distribution.
2.6 Information of the Holder. As a condition to participation
in any registration hereunder, the Holder shall furnish to the Company such
information regarding the Holder and the distribution proposed by the Holder as
the Company may reasonably request and as shall be required in connection with
any registration, qualification or compliance contemplated by this Agreement.
2.7 Rule 144 Information. From and after the date hereof and
for so long as necessary in order to permit the Holders to sell the Registrable
Stock pursuant to Rule 144 under the 1933 Act, the Company will file on a timely
basis all reports required to be filed by it pursuant to Section 13 or 15(d) of
the United States Securities Exchange Act of 1934 and referred to in paragraph
(c)(1) of Rule 144 (or, if applicable, the Company will make publicly available
the information regarding itself referred to in paragraph (c)(2) of Rule 144),
in order to permit the Holders to sell the Registrable Stock, pursuant to the
terms and conditions of the applicable provisions of Rule 144.
2.8 Delay in Demand Registration. The Company shall not be
obligated to effect any Demand Registration within 90 days of a previous
registration in which Holders of Registrable Stock were afforded piggyback
registration rights pursuant to this Agreement.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by the Company. The Company agrees to
indemnify, to the extent permitted by law, the Holder, its officers and
directors and each Person who controls a Holder (within the meaning of the 1933
Act) against all losses, claims, damages, liabilities and expenses which arise
out of or are based upon any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such Holder,
its officers and directors or any Person who controls such Holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the 1933 Act) to the same
extent as provided above with respect to the indemnification of a Holder.
3.2 Indemnification by Holder. In connection with any
registration statement in which a Holder is participating, each such Holder,
severally and not jointly, will, to the extent permitted by law, indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the 1933 Act) against any losses, claims, damages,
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<PAGE> 11
liabilities and expenses which arise out of or are based upon any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading (but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such Holder
expressly for use therein) and any failure by each such Holder to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto; provided, however, that the obligation to indemnify will be individual
to each Holder and will be limited to the net amount of proceeds received by
such Holder from the sale of Registrable Stock pursuant to such registration
statement.
3.3 Notice: Defense of Claims. Any Person entitled to
indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Agreement except to the extent the indemnifying party is materially prejudiced
by such failure. If such defense is assumed, the indemnified party may
participate in such defense at its own expense and the indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld,
conditioned or delayed). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel (in addition to local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim. No indemnified party shall consent to entry of any
judgment or settle any claim or litigation without the prior written consent of
the indemnifying party, which consent shall not be unreasonably withheld,
conditioned or delayed. Each indemnified party, as a condition to its right to
indemnification, will reasonably cooperate with the indemnifying party (at the
expense of the indemnifying party) in the defense of such claim.
3.4 Contribution. If the indemnification provided for in this
Article 3 is unavailable or insufficient to hold harmless an indemnified party
under Section 3.1 or 3.2, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to above (a) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other from the offering of the
securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other equitable
considerations. The relative benefits received by
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<PAGE> 12
the indemnifying party on the one hand and the indemnified party on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering received by the indemnifying party bear to the total net proceeds
received by the indemnified party. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the indemnifying party or information
supplied by the indemnified party, and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this Section 3.4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending against any action or claim that is the subject of this section. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Any obligation of a Holder to
provide contribution will be individual to such Holder and will be limited to
the net amount of proceeds received by such Holder from the sale of Registrable
Stock that is the subject of any claim. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
3.5 Survival. The indemnification and contribution provided
for under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of any indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
ARTICLE 4
MISCELLANEOUS
4.1 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by commercial delivery
service, or mailed by registered or certified mail (return receipt requested) or
sent via facsimile (with confirmation of receipt) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to the Company, to:
The viaLink Company
13800 Benson Road
Edmond, Oklahoma 73103-6417
Attention: J. Andrew Kerner
Fax: : (405) 936-2599
with a copy (which shall not constitute notice) to:
Richard M. Klinge & Associates, P.C.
510 E. Memorial Road, Suite C-1
Oklahoma City, Oklahoma 73114
Attention: Richard M. Klinge, Esq.
Fax: (405) 775-9003
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and a copy (which shall not constitute notice) to:
Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attn: Robert E. Crawford, Jr., Esq.
Fax: (214) 745-5390
if to the Holder, to:
i2 Technologies, Inc.
909 E. Las Colinas Blvd., 16th Floor
Irving, Texas 75039
Attention: Robert C. Donohoo
Fax: (214) 860-6893
with a copy (which shall not constitute notice) to:
Brobeck, Phleger & Harrison LLP
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Attention: Ronald G. Skloss
Fax: (512) 477-5813
Notice given by personal delivery or commercial delivery service shall be
effective upon actual receipt. Notice given by mail shall be effective three
business days after deposit in the mails or upon actual receipt if sooner.
Notice given by facsimile shall be confirmed by appropriate answer back and
shall be effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next business day after
receipt if not received during the recipient's normal business hours.
4.2 Interpretation. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words without limitation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
4.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
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4.4 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
4.5 Amendments and Waivers. Except as otherwise provided
herein, no amendment, modification, termination or cancellation of this
Agreement shall be effective as to (a) the Company, unless made in writing
signed by the Company or (b) the Holder, unless made in writing signed by the
Holder.
4.6 Successors and Assigns. This Agreement, and the rights and
obligations of a Holder hereunder, may be assigned by such Holder to any Person
to which Registrable Stock is transferred by such Holder and who agrees to be
bound by the terms of this Agreement. Any such transferee shall be deemed a
"Holder" for purposes of this Agreement; provided, that no transferee will be
deemed to be a Holder unless such transferee is the holder of not less than
50,000 shares of Registrable Stock.
4.7 Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
4.8 Remedies Cumulative. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy.
4.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas (other than the
conflicts of law principles thereof) and shall, to the maximum extent
practicable, be deemed to call for performance in Dallas County, Texas.
4.10 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
4.11 Currency. All references to "$" or "dollars" herein shall
be to the lawful currency of United States dollars.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company and the Holder have executed
this Registration Rights Agreement as of the date first written above.
COMPANY:
THE viaLINK COMPANY
By: /s/ J. ANDREW KERNER
---------------------------------------
Name: J. Andrew Kerner
---------------------------------
Title: Chief Financial Officer
--------------------------------
HOLDER:
i2 TECHNOLOGIES, INC.
By: /s/ ROBERT C. DONOHOO
---------------------------------------
Name: Robert C. Donohoo
---------------------------------
Title: Corporate Counsel
--------------------------------
<PAGE> 1
EXHIBIT 4.6
NEITHER THIS WARRANT NOR ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
DISPOSED OF WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.
No. i2-001 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE viaLINK COMPANY
COMMON STOCK PURCHASE WARRANT
October 12, 1999
The viaLink Company, an Oklahoma corporation (the "Company"), hereby
certifies that, for value received, i2 Technologies, Inc., a Delaware
corporation ("i2"), or its permitted assigns, is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
before 5:00 p.m. (Dallas, Texas time), on October 12, 2001, up to 186,567 fully
paid and nonassessable shares (the "Warrant Shares") of the Company's Common
Stock, $0.001 par value, at a purchase price per share of $26.80 (such purchase
price per share as adjusted from time to time as herein provided is referred to
herein as the "Purchase Price"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Business Day" means any day except a Saturday
or a Sunday or other day on which the National Market (as hereinafter
defined), or any national securities exchange on which the Common
Stock (as hereinafter defined) is traded or admitted for unlisted
trading privileges, is closed for trading.
(b) The term "Company" shall include The viaLink Company, and
any corporation which shall succeed to, or assume the obligations of,
The viaLink Company hereunder.
(c) The term "Common Stock" includes the Company's common
stock, $0.001 par value, as authorized on October 12, 1999, and/or any
Other Securities into which or for which the Warrant Shares may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(d) The term "Fair Market Value" per share of Common Stock
means:
(1) If the Common Stock is traded on a national
securities exchange or admitted to unlisted trading
privileges on such an exchange, or is listed on the
National Market (the "National Market") of the
National Association of Securities Dealers Automated
Quotations System (the "NASDAQ"), the Fair Market
Value shall be the average of the last
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reported sale prices of the Common Stock on such
exchange or on the National Market over the five
consecutive Business Days immediately preceding the
date of determination or, if the last reported sale
price information is not available for such days,
the average of the mean of the closing bid and asked
prices for such days on such exchange or on the
National Market;
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the Fair Market Value
shall be the average of the mean of the last bid and
asked prices reported over the five consecutive
Business Days immediately preceding the date of
determination (A) by the NASDAQ or (B) if reports
are unavailable under clause (A) above, by the
National Quotation Bureau Incorporated; and
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and ask prices
are not reported, the Fair Market Value shall be the
price per share which the Company could obtain from
a willing buyer for shares of Common Stock, as such
price shall be determined by mutual agreement of the
Company and the holders of rights to purchase a
majority of the shares of Common Stock purchasable
under all warrants then outstanding and issued
(directly or indirectly) from that certain Common
Stock Purchase Warrant, dated October 12, 1999,
issued by the Company to i2 Technologies, Inc. which
originally granted to i2 Technologies, Inc. the
right to purchase 186,567 shares of Common Stock
(Warrant No. i2-001). If such holders and the
Company are unable to agree on such Fair Market
Value, the Company shall select a pool of three
independent and nationally-recognized investment
banking firms from which such holders shall select
one such firm to appraise the fair market value of
the Warrant and to perform the computations
involved. The determination of such investment
banking firm shall be binding upon the Company and
such holders in connection with any transaction
occurring at the time of such determination. All
expenses of such investment banking firm shall be
borne by the Company. In all cases, the
determination of fair market value shall be made
without consideration of the lack of a liquid public
market for the Common Stock and without
consideration of any "control premium" or any
discount for holding less than a majority or
controlling interest of the outstanding Common
Stock.
(e) The term "Other Securities" refers to any stock (other
than Common Stock) or other securities of the Company or any other
person (corporate or otherwise) (i) which the holder of this Warrant
at any time shall be entitled to receive, or shall have received, on
the exercise of this Warrant, in lieu of or in addition to shares of
the Company's common stock, $.001 par value per share, as authorized
on October 12, 1999, or (ii) which at any time shall be issuable or
shall have been issued in exchange for or in replacement of shares of
the Company's common stock, $.001 par value per share, as authorized
on October 12, 1999, or Other Securities pursuant to Section 4 or
otherwise.
1. Exercise of Warrant.
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1.1 Full Exercise. This Warrant may be exercised at any time
after the date hereof during normal business hours before its expiration in
full by the holder hereof by surrender of this Warrant, with the form of
subscription at the end hereof duly executed by such holder, to the Company at
its principal office, accompanied by payment, in cash, by bank cashier's check
payable to the order of the Company or by wire transfer, in the amount obtained
by multiplying the number of shares of Common Stock and/or Other Securities for
which this Warrant is then exercisable by the Purchase Price then in effect.
1.2 Partial Exercise. This Warrant may be exercised at any
time during normal business hours after the date hereof before its expiration
in part by surrender of this Warrant and payment of the Purchase Price then in
effect in the manner and at the place provided in subsection 1.1, except that
the amount payable by the holder on such partial exercise shall be the amount
obtained by multiplying (a) the number of shares of Common Stock and/or Other
Securities designated by the holder in the subscription at the end hereof by
(b) the Purchase Price then in effect. On any such partial exercise, the
Company at its expense will forthwith issue and deliver to or upon the order of
the holder hereof a new Warrant or Warrants of like tenor, in the name of the
holder hereof or as such holder (upon payment by such holder of any applicable
transfer taxes) may request, filling in the aggregate on the face or faces
thereof the number of shares of Common Stock and/or Other Securities for which
such Warrant or Warrants may still be exercised.
1.3 Company Acknowledgment. The Company will, at the time of
any exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to such holder any
rights to which such holder shall continue to be entitled after such exercise
in accordance with the provisions of this Warrant. If the holder shall fail to
make any such written request, such failure shall not affect the continuing
obligation of the Company to afford to such holder any such rights.
1.4 Trustee for Warrant Holders. In the event that a bank or
trust company shall have been appointed as trustee for the holder of this
Warrant pursuant to subsection 4.2, such bank or trust company shall have all
the powers and duties of a warrant agent appointed pursuant hereto and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, Etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten Business Days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof, or as such holder
(upon payment by such holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock (or, to the extent not constituting Common Stock, Other
Securities) to which such holder shall be entitled on such exercise, plus, in
lieu of any fractional share to which such holder would otherwise be entitled,
cash equal to such fraction multiplied by the then current Fair Market Value of
one full share, together with any other property (including cash, where
applicable) to which such holder is entitled upon such exercise pursuant to
Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock (or, to the extent not constituting Common Stock, Other
Securities) in their capacity as such shall have received, or (on or after the
record
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date fixed for the determination of shareholders eligible to receive)
shall have become entitled to receive, without payment therefor,
(a) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of capital stock issued as a stock dividend or in
a stock split (adjustments in respect of which are provided for in Section 5),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) determined by multiplying (i) the
amount of stock and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section) which such holder
would hold on the date of such exercise, if on the record date with respect to
or the date of the issuance of the stock, securities, property and cash
referred to in subdivisions (a), (b) or (c) of this Section 3, as applicable,
it had been the holder of record of the number of shares of Common Stock called
for on the face of this Warrant and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and all such other or additional stock and other securities and property
(including cash in the cases referred to in subdivisions (b) and (c) of this
Section 3) receivable by it as aforesaid during such period, giving effect to
all adjustments called for during such period by Sections 4 and 5 by (ii) the
percentage of this Warrant then being exercised.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1 Reorganization, Consolidation, Merger, etc. In case at
any time or from time to time, the Company shall (a) effect a reorganization,
reclassification or recapitalization (b) consolidate with or merge into any
other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, reclassification, recapitalization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Common Stock (or, to the extent not
constituting Common Stock, Other Securities) issuable on such exercise prior to
such consummation or such effective date, the amount of stock and other
securities and property (including cash) determined by multiplying (i) the
amount of the stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in connection
with such event, as the case may be, if such holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided in Sections 3 and 5 by (ii) the percentage of this
Warrant then being exercised.
4.2 Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its properties or
assets, the Company, prior to such dissolution, shall at its expense deliver or
cause to be delivered the Other Securities and property (including cash, where
applicable) receivable by the holders of this Warrant after the effective date
of such dissolution
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<PAGE> 5
pursuant to this Section 4 to a bank or trust company having its principal
office in Dallas, Texas, as trustee for the holder of this Warrant.
4.3 Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 4, this Warrant shall continue in full force and
effect, subject to expiration in accordance with Section 17 hereof, and the
terms hereof shall be applicable to the Other Securities and property
receivable on the exercise of this Warrant after the consummation of such
reorganization, consolidation or merger or the effective date of dissolution
following any such transfer, as the case may be, and shall be binding upon the
issuer of any such Other Securities, including, in the case of any such
transfer, the person acquiring all or substantially all of the properties or
assets of the Company, whether or not such person shall have expressly assumed
the terms of this Warrant as provided in Section 6.
5. Anti-Dilution Adjustments.
5.1 General. The Purchase Price shall be subject to
adjustment from time to time as hereinafter provided. Upon each adjustment of
the Purchase Price, the holder of this Warrant shall thereafter be entitled to
purchase, at the Purchase Price resulting from such adjustment, the number of
shares obtained by multiplying the Purchase Price in effect immediately prior
to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
Purchase Price resulting from such adjustment.
5.2 Purchase Price Adjustments. If and whenever after the
date hereof the Company shall issue or sell any shares of its capital stock
(except (a) upon exercise of one or more of the Warrants or (b) pursuant to
options, warrants, rights or similar commitments obligating the Company to
issue shares of its capital stock which are in existence as of October 12,
1999) for a consideration per share less than the Purchase Price in effect
immediately prior to the time of such issue or sale, the Purchase Price shall
be reduced to the price (calculated to the nearest $0.01) obtained by dividing
(i) an amount equal to the sum of (A) the number of shares of capital stock
outstanding, or deemed to be outstanding, immediately prior to such issue or
sale multiplied by the Purchase Price prevailing immediately prior to such
issue or sale plus (B) the consideration, if any, received by the Company upon
such issue or sale, by (ii) the total number of shares of capital stock
outstanding, or deemed to be outstanding, immediately after such issue or sale.
Notwithstanding the foregoing, no adjustment of the Purchase Price shall be
made in an amount less than $0.01 per share, but any such lesser adjustment
shall be carried forward and shall be made at the time of and together with the
next subsequent adjustment which together with any adjustments so carried
forward shall amount to $0.01 per share or more.
5.3 Option Grants. In the event that at any time after
October 12, 1999 the Company shall in any manner grant (directly, by assumption
in a merger or otherwise) any rights to subscribe for or to purchase, or any
options for the purchase of, capital stock or any securities convertible into
or exchangeable for its capital stock (such rights or options being herein
called "Options" and such convertible or exchangeable stock or securities being
herein called "Convertible Securities"), whether or not such Options or the
right to convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which capital stock is issuable upon
the exercise of such Options or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the granting of such Options,
plus the minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus, in the case of any such
Options which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
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<PAGE> 6
Convertible Securities and upon the conversion or exchange thereof, by (ii) the
total number of shares of capital stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Purchase
Price in effect immediately prior to the time of the granting of such Options,
then the total number of shares of capital stock issuable upon the exercise of
such Options or upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such Options shall (as of
the date of granting such Options) be deemed to be outstanding and to have been
issued for such price per share. Except as otherwise provided in subsection
5.5, no further adjustment of the Purchase Price shall be made upon the actual
issue of such capital stock or of such Convertible Securities upon exercise of
such Options or upon the actual issue of such capital stock upon conversion or
exchange of such Convertible Securities.
5.4 Convertible Security Grants. In the event that the
Company shall in any manner issue (directly, by assumption in a merger or
otherwise) or sell any Convertible Securities (other than pursuant to the
exercise of Options to purchase such Convertible Securities covered by
subsection 5.3), whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per share for which capital stock is
issuable upon such conversion or exchange (determined by dividing (i) the total
amount received or receivable by the Company as consideration for the issue or
sale of such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of capital stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Purchase Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares of capital stock
issuable upon conversion or exchange of all such Convertible Securities shall
(as of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share, provided
that, except as otherwise provided in Section 5.5, no further adjustment of the
Purchase Price shall be made upon the actual issue of such capital stock upon
conversion or exchange of such Convertible Securities.
5.5 Effect of Alteration to Option or Convertible Security
Terms. In connection with any change in, or the expiration or termination of,
the purchase rights under any Option or the conversion or exchange rights under
any Convertible Securities, the following provisions shall apply:
(d) If the purchase price provided for in any Option referred
to in subsection 5.3, the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities referred
to in subsection 5.3 or 5.4, or the rate at which any Convertible
Securities referred to in subsection 5.3 or 5.4 are convertible into
or exchangeable for capital stock shall change at any time (including,
but not limited to, changes under or by reason of provisions designed
to protect against dilution), then the Purchase Price in effect at the
time of such change shall forthwith be increased or decreased to the
Purchase Price which would be in effect immediately after such change
had such Options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially granted,
issued or sold.
(e) On the partial or complete expiration of any Options or
termination of any right to convert or exchange Convertible
Securities, the Purchase Price then in effect hereunder shall
forthwith be increased or decreased to the Purchase Price which would
be in effect at the time of such expiration or termination had such
Options or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been
issued.
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5.6 Dividends of Capital Stock, Options or Convertible
Securities. In the event that the Company shall declare a dividend or make any
other distribution upon any stock of the Company payable in capital stock,
Options or Convertible Securities, then any capital stock, Options or
Convertible Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued or sold without
consideration unless such dividend or distribution is subject to Section 3
hereof.
5.7 Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold by the Company, or shall become subject to
issue upon the conversion or exchange of any stock (or Other Securities) of the
Company (or any other issuer of Other Securities or any other person referred
to in Section 4) or to subscription, purchase or other acquisition pursuant to
any rights or options granted by the Company (or such other issuer or person),
for a consideration per share such as to dilute the purchase rights evidenced
by this Warrant, the computations, adjustments and readjustments provided for
in this Section 5 with respect to the Purchase Price and the number of shares
of Common Stock issuable upon exercise of this Warrant shall be made as nearly
as possible in the manner so provided and applied to determine the amount of
Other Securities from time to time receivable on the exercise of this Warrant,
so as to protect the holders of this Warrant against the effect of such
dilution.
5.8 Stock Splits and Reverse Splits. In the event that the
Company shall at any time subdivide its outstanding shares of Common Stock into
a greater number of shares, the Purchase Price in effect immediately prior to
such subdivision shall be proportionately reduced and the number of Warrant
Shares purchasable pursuant to this Warrant immediately prior to such
subdivision shall be proportionately increased, and conversely, in the event
that the outstanding shares of Common Stock shall at any time be combined into
a smaller number of shares, the Purchase Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced. Except as provided in this
subsection 5.8, no adjustment in the Purchase Price and no change in the number
of Warrant Shares purchasable shall be made under this Section 5 as a result of
or by reason of any such subdivision or combination.
5.9 Determination of Consideration Received. For purposes of
this Section 5, the amount of consideration received by the Company in
connection with the issuance or sale of capital stock, Options or Convertible
Securities shall be determined in accordance with the following:
(f) In the event that shares of capital stock, Options or
Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
payable to the Company therefor, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or
allowed by the Company in connection therewith.
(g) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued or sold for a consideration
other than cash, the amount of the consideration other than cash
payable to the Company shall be deemed to be the fair value of such
consideration as reasonably determined by the Board of Directors of
the Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company
in connection therewith.
(h) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued in connection with any merger
in which the Company is the surviving corporation,
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the amount of consideration therefor shall be deemed to be the fair
value as reasonably determined by the Board of Directors of the
Company of such portion of the assets and business of the
non-surviving corporation as such Board shall determine to be
attributable to such capital stock, Options or Convertible Securities,
as the case may be.
(i) In the event that any capital stock, Options and/or
Convertible Securities shall be issued in connection with the issue
and sale of other securities or property of the Company, together
comprising one integral transaction in which no specific consideration
is allocated to such capital stock, Options or Convertible Securities
by the parties thereto, such capital stock, Options and/or Convertible
Securities shall be deemed to have been issued for such consideration
as determined in good faith by the Board of Directors of the Company.
5.10 Record Date as Date of Issue or Sale. In the event that
at any time the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them (i) to receive a dividend or other
distribution payable in capital stock, Options or Convertible Securities, or
(ii) to subscribe for or purchase capital stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue
or sale of the shares of capital stock, Options or Convertible Securities
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right of
subscription or purchase, as the case may be; provided, nothing contained
herein will be deemed to require the Company to issue or deliver such capital
stock, Options or Convertible Securities until the capital stock, Options or
Convertible Securities which are the subject of any such dividend, distribution
or subscription right are issued or delivered to the holders of Common Stock.
5.11 Treasury Stock. The number of shares of capital stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares (other than
their cancellation without reissuance) shall be considered an issue or sale of
capital stock for the purposes of this Section 5.
5.12 Certain Issues of Capital Stock Excepted. Anything
herein to the contrary notwithstanding, the Company shall not be required to
make any adjustment to the Purchase Price in the case of the issuance from time
to time after the date hereof of shares of capital stock reserved by the
Company for the grant and exercise of (a) options to purchase capital stock or
(b) rights under the Company's current employee stock purchase plan, in each
case, granted to directors, officers, employees, or consultants of the Company
pursuant to arrangements, plans or contracts approved by the Board of Directors
of the Company.
6. No Dilution or Impairment. The Company will not, by amendment
of its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holders of
this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value or
stated value of any shares of stock receivable on the exercise of this Warrant
above the amount payable therefor on such exercise, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of stock on the exercise
of this Warrant, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate
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with or merge into the Company (if the Company is not the surviving person),
unless such other person shall expressly assume in writing and become bound by
all the terms of this Warrant.
7. Certificate as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock (or Other Securities) issuable on
the exercise of this Warrant, the Company at its expense will promptly cause
its chief financial officer to compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based, including a statement of (a)
the consideration received or receivable by the Company for any additional
shares of capital stock (or, to the extent not constituting Common Stock, Other
Securities) issued or sold or deemed to have been issued or sold, (b) the
number of shares of each class or series of capital stock outstanding or deemed
to be outstanding, and (c) the Purchase Price and the number of shares of
Common Stock (and, to the extent not constituting Common Stock, Other
Securities) to be received upon exercise of this Warrant, in effect immediately
prior to such issue or sale and as adjusted and readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate to the
holder of this Warrant, and will, on the written request at any time of the
holder of this Warrant, furnish to such holder a like certificate setting forth
the Purchase Price at the time in effect and showing how it was calculated.
8. Registration Rights. The holder(s) of this Warrant and any
other Warrants issued pursuant to the terms hereof from time to time shall be
entitled to the registration rights in respect thereof as provided in the
Registration Rights Agreement between the Company and i2, dated October 12,
1999, in accordance with the terms thereof.
9. Notices of Record Date, etc. In the event of:
(j) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(k) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company to or consolidation or merger of the Company with or into any
other person, or
(l) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, (ii)
the date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock (or, to the extent not constituting Common Stock, Other
Securities) shall be entitled to exchange their shares of Common Stock (or, to
the extent not constituting Common Stock, Other Securities) for securities or
other property deliverable on such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or other
securities, or rights or options with respect
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thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least ten Business
Days prior to the date specified in such notice on which any such action is to
be taken.
10. Reservation of Stock, etc. Issuable on Exercise of Warrants.
The Company will at all times reserve and keep available, solely for issuance
and delivery on the exercise of this Warrant, all shares of Common Stock (or,
to the extent not constituting Common Stock, Other Securities) from time to
time issuable upon the exercise of this Warrant.
11. Exchange of Warrants. On surrender for exchange of this
Warrant, properly endorsed, to the Company, the Company at its expense will
issue and deliver to or on the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (on
payment by such holder of any applicable transfer taxes) may direct, filling in
the aggregate on the face or faces thereof the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered; provided,
however, that in no event will the Company be obligated to recognize or permit
any transfer of this Warrant that would result in the assignor or any assignee
receiving a Warrant exercisable with respect to 25,000 or fewer shares of
Common Stock.
12. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
13. Remedies. [Deleted.]
14. Negotiability, etc. This Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof
consents and agrees, subject to the limitation on transfer set forth in Section
11:
(m) title to this Warrant may be transferred by endorsement
(by the holder hereof executing the form of assignment at the end
hereof) and delivery in the same manner as in the case of a negotiable
instrument transferable by endorsement and delivery; and
(n) any person in possession of this Warrant properly
endorsed for transfer to such person (including endorsed in blank) is
authorized to represent himself as absolute owner hereof and is
empowered to transfer absolute title hereto by endorsement and
delivery hereof to a bona fide purchaser hereof for value; each prior
taker or owner waives and renounces all of his equities or rights in
this Warrant in favor of each such bona fide purchaser, and each such
bona fide purchaser shall acquire absolute title hereto and to all
rights represented hereby. Nothing in this paragraph (b) shall create
any liability on the part of the Company beyond any liability or
responsibility it has under law.
15. Notices, etc. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid at such address as may have been furnished
to the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
10
<PAGE> 11
16. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the internal substantive laws of the State of
Texas, without regard to the conflicts of law principles thereof and, to the
maximum extent practicable, will be deemed to call for performance in Dallas
County, Texas. The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof. The invalidity
or unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provision.
17. Expiration. The right to exercise this Warrant shall expire
at 5:00 p.m. (Dallas, Texas time), October 12, 2001.
18. Warrant Holders Not Deemed Shareholders. No holder of this
Warrant shall, as such, be entitled to vote or to receive dividends or be
deemed the holder of Common Stock or, to the extent not constituting Common
Stock, Other Securities that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or for the election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issue or reclassification of stock, change
of par value or change of stock to no par value, consolidation, merger or
conveyance or otherwise), or to receive notice of meetings, or to receive
dividends or subscription rights, until such holder shall have exercised this
Warrant and been issued Common Stock or, to the extent not constituting Common
Stock, Other Securities in accordance with the provisions hereof.
11
<PAGE> 12
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
THE viaLINK COMPANY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _____________
shares (the "Shares") of Common Stock of The viaLink Company and herewith makes
payment of $________ therefor, and requests that the certificate for such
Shares be issued in the name of, and delivered to
______________________________, federal taxpayer identification number
______________________, whose address is ____________________
_________________________________________.
In connection with the exercise of this Warrant, the undersigned
represents and warrants as follows:
(o) The undersigned is purchasing the Shares for the account
of the undersigned and not as a nominee or agent, and the undersigned
has no present intention of granting any participation in the same,
and does not have any contract, undertaking, agreement or arrangement
with any person to grant participation to such person or to any third
person, with respect to any of such Shares;.
(p) The undersigned has received or has had full access to
all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Shares. The
undersigned has had an opportunity to ask questions of and receive
answers from the Company and to obtain additional information (to the
extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify any
information furnished to undersigned or to which the Company has
access.
(q) The undersigned understands that the Shares are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the
"Securities Act") only in certain limited circumstances. In this
connection, the undersigned represents that it is familiar with
Securities and Exchange Commission ("SEC") Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by
the Securities Act.
(r) The undersigned is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(s) The undersigned agrees not to offer, sell, exchange,
transfer, pledge or otherwise dispose of any of the Shares unless at
that time either:
(1) such transaction is permitted pursuant to the
provisions of Rule 144 under the Securities Act or
another exemption from registration under the
Securities Act and all applicable state securities
laws;
(2) a registration statement under the Securities Act
and all applicable state securities laws covering
such securities proposed to be sold, transferred or
otherwise disposed of, describing the manner and
terms of the
<PAGE> 13
proposed sale, transfer or other disposition, and
containing a current prospectus, is filed with the
SEC and all applicable state securities law agencies
and made effective under the Securities Act and all
applicable state securities laws; or
(3) an authorized representative of the SEC and all
applicable state securities agencies shall have
rendered written advice to undersigned (with a copy
thereof and of all other related communications
delivered to the Company) to the effect that the SEC
and/or such state securities agencies will take no
action, or that the staff of the SEC and/or such
state securities agencies will recommend that the
SEC and such state securities agencies, as
applicable, take no action, with respect to the
proposed offer, sale, exchange, transfer, pledge or
other disposition if consummated.
(t) All certificates representing the Shares and any
certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend that such securities may
only be sold or disposed of in accordance with (i) the provisions of
the Securities Act, the rules and regulations thereunder and any
applicable state securities laws, (ii) pursuant to an effective
registration statement or (iii) pursuant to an exemption from the
registration/qualification requirements of the Securities Act and any
applicable state securities laws. The Company, at its reasonable
discretion, may cause stop transfer orders to be placed with its
transfer agent with respect to the certificates for the Shares but not
as to the certificates for any part of such Shares as to which said
legend is no longer required.
Dated:
--------------------- --------------------------------------------
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------------
(Address)
Signed in the presence of:
- --------------------------
---------------------------
2
<PAGE> 14
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _____________ _________________________, federal taxpayer
identification number ___________, whose address is
___________________________________________________, the right represented by
the within Warrant to purchase ___________ shares of Common Stock of The
viaLink Company to which the within Warrant relates, and appoints
___________________________ Attorney to transfer such right on the books of The
viaLink Company with full power of substitution in the premises.
Dated:
--------------------- --------------------------------------------
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------------
(Address)
Signed in the presence of:
- --------------------------
3
<PAGE> 15
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
THE viaLINK COMPANY
By: /s/ J. Andrew Kerner
--------------------------------
Name: J. Andrew Kerner
Title: Chief Financial Officer
[SIGNATURE PAGE TO WARRANT]
<PAGE> 1
EXHIBIT 10.1
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
ALLIANCE AND MARKETING AGREEMENT
This Alliance and Marketing Agreement ("Agreement") is executed as of
the 12th day of October, 1999 by and among The viaLink Company, an Oklahoma
corporation ("viaLink") and i2 Technologies, Inc., a Delaware corporation
("i2").
WHEREAS, viaLink provides certain services via the Internet known as
viaLink's Item Catalog Services (as hereinafter defined) and Chain Pricing
Services (as hereinafter defined) to customers in the Consumer Packaged Goods
and/or Food Service Industries; and
WHEREAS, viaLink and i2 have executed a Securities Purchase Agreement,
a Common Stock Purchase Warrant, and other documents related thereto in
conjunction with this Agreement.
WHEREAS, viaLink desires to utilize the sales, marketing and
technology resources of i2 to market its viaLink Services (as hereinafter
defined) to viaLink's Market (as hereinafter defined) and to other industries;
and
WHEREAS, viaLink and i2 desire to provide connectivity between their
respective products and services; and
WHEREAS, i2, subject to the terms, covenants and conditions of this
Agreement, desires to offer the viaLink Services to its existing and future
customers and Potential Customers (as hereinafter defined); and
WHEREAS, viaLink, subject to the terms and conditions of this
Agreement, desires to allow i2 to offer such viaLink Services to i2's existing
and future customers and Potential Customers; and
WHEREAS, i2, subject to the terms, covenants and conditions of this
Agreement, agrees to market such viaLink Services to its existing and future
customers and Potential Customers; and
WHEREAS, i2 and viaLink desire to execute and enter into certain other
agreements to set forth their mutual agreements regarding the marketing and use
of certain products and services of the parties to accomplish the above
premises, all as more fully described herein and the attachments hereto.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants, agreements, representations and warranties hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1
<PAGE> 2
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1. DEFINITIONS. The following capitalized terms shall have the meanings
given to them below when used in this Agreement:
1.1. "AGREEMENT" means this Alliance and Marketing Agreement, the
License, all Exhibits and Schedules attached hereto, and any
further documents expressly incorporated herein by reference
1.2. "AFFILIATE" shall mean i2 Midwest,Inc., i2 North, Inc., i2
Northwest, LLC, i2 Southwest, Inc. i2 Logistics, and i2 Great
Lakes, Inc., i2 Mid-Market, LLC., i2 New England, Inc., i2
Solutions, Inc., i2 Mid Atlantic, LLC, i2 Southeast, Inc.,
and any Person who is controlled by, or is under common
control with, a Party hereto. The term "control" (including,
with correlative meaning, the terms "controlled by" and
"under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
1.3. "EFFECTIVE DATE" shall be the date upon which the Closing
occurs under the Securities Purchase Agreement executed by
and between the parties hereto as of the Execution Date and
execution by viaLink of the Warrant Agreement to purchase
common stock of viaLink and delivery of such warrant to i2.
1.4. "EXECUTION DATE" shall be the date first shown above.
1.5. "LICENSE" shall be the License to be signed by i2 and
viaLink, which shall be in the form set forth in Exhibit A
hereto.
1.6. "PROPRIETARY INFORMATION" means:
1.6.1. with respect to viaLink, the viaLink Services and
all confidential information and trade secrets
disclosed in connection with the negotiation,
execution, and/or performance of this Agreement,
including, without limitation, information related
to the viaLink Services, all code and writings and
documents relating to the viaLink Services, results,
prices, product information or other data of
viaLink, database formats of viaLink and any other
information of viaLink's licensors, customers or
subscribers, product designs and specifications of
viaLink, release management and version control
standards of viaLink, viaLink's localization support
requirements and technical reference manuals,
customer lists and marketing plans of viaLink,
information disclosed by viaLink in writing that is
marked as confidential at the time of disclosure,
and the terms of this Agreement.
1.6.2. with respect to i2, any information of i2 which i2
identifies in writing as confidential or which, by
its nature, is generally understood to be
confidential information.
1.6.3. Notwithstanding the foregoing however, information
is not Proprietary Information to the extent that
it:
2
<PAGE> 3
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1.6.3.1. is or becomes publicly available through no
fault of the receiving party; or
1.6.3.2. was previously known to the receiving
party, not by improper means, as of the
time of its disclosure by the disclosing
party;
1.6.3.3. is rightfully acquired from a third party
which, to the receiving party's knowledge,
is not obligated to keep that information
confidential; or
1.6.3.4. is independently developed by the receiving
party without use of or reference to any
Proprietary Information of the disclosing
party.
1.7. "INITIAL TERM" is defined in Section 9.1 below.
1.8. "viaLINK'S ITEM CATALOG SERVICES" means the subscription
catalog and item information data services offered by
viaLink, excluding Item Movement and Scan Based Trading.
1.9. "viaLINK'S CHAIN PRICING SERVICES" means the subscription
service offered by viaLink that reports aggregated supply
chain pricing.
1.10. "viaLINK'S SERVICES" means, unless otherwise stated,
viaLink's Item Catalog Services and viaLink's Chain Pricing
Services.
1.11. "POTENTIAL CUSTOMER" means a potential user of viaLink
Services with whom i2 and/or viaLink may engage in marketing
activities according to this Agreement.
1.12. "SUBSCRIPTION SERVICE REVENUE" means only those gross
subscription revenues paid directly to viaLink by a customer
of viaLink in the viaLink Market for the access to and/or use
of the viaLink Services, as such viaLink Services are
provided from time to time to customers in the viaLink
Market.
1.12.1. Notwithstanding the foregoing, Subscription Service
Revenue shall not include (a) any fees or other
revenues received by viaLink from customization,
implementation, set-up, licenses, outsourcing, data
management, custom data or support services,
hosting, consulting and other similar and/or related
services; (b) any revenues from other services which
viaLink currently, or may in the future, offer to
its customers other than the viaLink Services; and
(c) any revenues from business ventures, marketing
alliances or other relationships with any third
parties in which viaLink is currently engaged or may
engage in at any time in the future.
1.12.2. Furthermore, and notwithstanding anything to the
contrary in this Agreement, any sums received by i2
pursuant to Section 5.1 and/or any sums paid by i2
to viaLink pursuant to Sections 5.2, 5.3 and/or 5.4
shall not be included in or otherwise be considered
in or affect the calculation of Subscription Service
Revenue.
1.13. "OVERRIDE PAYMENT REVENUE" means only those gross
subscription revenues paid directly to viaLink for the access
to and/or use of the viaLink Services, as such viaLink
Services are provided from time to time to customers in the
viaLink Market, inclusive of the amounts paid to viaLink
pursuant to 5.2 and/or 5.3 of this Alliance Agreement, but
less
3
<PAGE> 4
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
and except any refunds, credits, or similar discounts or
reimbursements provided or allowed by viaLink to its
customers, and
1.13.1. Notwithstanding the foregoing, Override Payment
Revenue shall not include (a) any fees or other
revenues received by viaLink from customization,
implementation, set-up, licenses, outsourcing, data
management, custom data or support services,
hosting, consulting and other similar and/or related
services; (b) any revenues from other services which
viaLink currently, or may in the future, offer to
its Customers other than the viaLink Services; and
(c) any revenues from business ventures, marketing
alliances or other relationships with any third
parties in which viaLink is currently engaged or may
engage in at any time in the future. .
1.13.2. Furthermore, any sums paid by i2 to viaLink pursuant
to section 5.4 shall not be included in or otherwise
be considered in or affect the calculation of
Override Payment Revenue.
1.14. "viaLINK'S SUBSCRIPTION SERVICES AGREEMENT" shall mean such
Service Agreement(s) regarding the viaLink Services as
viaLink may use or amend, in its sole discretion, from time
to time in connection with the sale of viaLink Services to
viaLink's customers.
1.15. "TERM" shall mean both the Initial Term and any and all
Renewal Terms.
1.16. "RENEWAL TERM" is defined in Section 9.1 of this Agreement
1.17. "PUBLIC EXCHANGE" means service offered via the Internet or
other online computer network whereby multiple companies have
the opportunity to establish electronic connectivity for the
purpose of exchanging information with multiple trading
partners.
1.18. "PRIVATE EXCHANGE" means service offered via the Internet or
other online computer network whereby one single company
establishes electronic connectivity for the purpose of
exchanging information with its trading partners.
1.19. "FOREIGN ENTITY" means a Person which desires to utilize
viaLink Services in its operations outside of the United
States.
1.20. "viaLINK'S MARKET" means the manufacturers, wholesalers,
distributors, brokers, and retailers of consumer packaged
goods and/or food and beverage products for: the food service
industry; grocery, drug, convenience and mass merchandisers;
commissaries; and other specific customers that are agreed to
by i2 and viaLink.
1.20.1. Customers in the mass merchandisers channel shall be
specifically agreed to during the business planning
process set forth in Section 4.7. In the event the
parties fail to reach agreement as to whether such a
customer in the mass merchandiser channel is within
the viaLink Market, the parties shall resolve such
issue pursuant to Section 5.10, with the factor for
such determination being the business attributable
to fast-moving consumer goods.
1.21. "INTELLECTUAL PROPERTY RIGHTS" is defined in Section 11.1.
4
<PAGE> 5
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1.22. "SECURITIES PURCHASE AGREEMENT" means that Securities and
Purchase Agreement by and between the parties hereto executed
of even date herewith.
1.23. "LICENSED TRADEMARKS" shall means the respective trademarks
of the parties hereto which are licensed to the other party
pursuant to the terms and conditions of Section 7 of this
Agreement.
1.24. "i2" shall mean i2 Technologies, Inc., and its Affiliates.
1.25. "viaLINK" shall mean The viaLink Company and its Affiliates.
1.26. "PERSON" shall mean any person or entity, whether an
individual, trustee, corporation, general partnership,
limited partnership, limited liability company, trust,
unincorporated organization, business association, firm,
joint venture, governmental agency or authority.
2. RESPONSIBILITIES OF viaLINK During the Term of this Agreement:
2.1. viaLink will form a team to support the relationship
established with i2 pursuant to this Agreement. viaLink will
assign to such team a minimum of five viaLink employees, each
of whom will spend such time as is reasonably necessary to
carry out viaLink's obligations set forth in this Agreement.
One of such persons shall have appropriate authority to
coordinate viaLink's activities with i2 pursuant to this
Agreement.
2.2. viaLink will provide i2 with such marketing and related
information as i2 reasonably needs to perform its duties
under this Agreement, and, as reasonably necessary, shall
update the same.
2.3. viaLink at no charge to i2 will provide such training as the
parties mutually determine is reasonably necessary to train
i2's team, as established pursuant to Section 3.1, with
respect to the nature and use of viaLink's Services, at such
times and places as the parties mutually agree.
Notwithstanding the foregoing, i2 shall be responsible for
any of its costs incurred in attending the training or the
reasonable travel costs of viaLink employees to travel to an
i2 location to conduct the training.
2.4. viaLink will provide i2 with a current reference copy of
viaLink's Subscription Services Agreement, as the same may be
amended from time to time.
2.5. viaLink shall provide i2 with ninety (90) days advance notice
regarding any price changes relating to the viaLink Services.
2.6. viaLink shall allow i2 to establish and maintain an Internet
link to viaLink's website so as to allow its customers to
view the viaLink website.
2.7. viaLink shall participate as a member of the Alliance Program
in and, if reasonably requested by i2, assist in the
organization and implementation of jointly sponsored
marketing events, conferences, executive conferences and
committee meetings related to the subject matter of this
Agreement.
2.8. If i2 establishes a Private or Public Exchange with a
customer who is within the viaLink Market, viaLink shall make
the viaLink Services available to i2 for the purpose of
servicing such Private or Public Exchange.
5
<PAGE> 6
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
2.9. viaLink shall not be required to host and/or sell any
services or products of i2 unless the parties by mutual
agreement enter into a separate, mutually satisfactory
written agreement relating to the terms and conditions of the
hosting and the amount of compensation to be paid by i2 to
viaLink for the same.
2.10. viaLink will name i2 as the exclusive supply chain planning
member of the viaLink Alliance and will include i2 as a
member of viaLink's industry advisory council.
2.11. Subject to the terms of this Agreement and of the License,
viaLink agrees that i2 may market the viaLink Services
outside of the viaLink Market, as an i2 branded product, any
Public or Private Exchange which is owned, operated or
participated in by i2 in which the Software (as defined in
the License) is utilized by i2.
2.12. viaLink agrees that, during the term of this Agreement if (a)
i2 meets the Goal Basis Revenue targets set forth in Sections
3.12.1, 3.12.2 and 3.12.3, or exercises its right to avoid
termination pursuant to 3.12.5 in reference to said target,
(b) continues to pay all sums due to viaLink pursuant to
Section 5.4, and (c) the License remains in effect and is
extended pursuant to its terms, then, subject to the terms of
this Agreement and of the License, i2 will have exclusive
rights to offer the viaLink Services to customers outside of
the viaLink Market. Provided however, i2 agrees that this
shall not in any manner prevent or prohibit viaLink from
linking or otherwise connecting to or otherwise offering
viaLink Services in the viaLink Market to or through other
Public or Private Exchanges, which Exchanges may or may not
be in competition with similar exchanges, owned, operated or
participated in by i2 ("i2 Exchanges") which may or may not
also offer services similar to those offered by such i2
Exchanges to customers outside of the viaLink Market, or
prevent or prohibit such Public or Private Exchanges from
connecting or linking to or otherwise accessing the viaLink
Services in order to allow both viaLink and or such Public or
Private Exchanges from providing viaLink Services to
customers within the viaLink Market.
3. RESPONSIBILITIES OF i2. During the Term of this Agreement:
3.1. i2 will form a team to support the relationship established
with viaLink pursuant to this Agreement. i2 will assign to
such team a minimum of five i2 employees, each of whom will
spend such time as is reasonably necessary to carry out i2's
obligations set forth in this Agreement. One of such persons
shall have appropriate authority to coordinate i2's
activities with viaLink pursuant to this Agreement.
3.2. i2 shall send its employees who are to provide technical
and/or marketing training with respect to said viaLink
Services to other i2 employees or representatives and/or to
the customers of i2 to such training programs, seminars
and/or meetings as may be mutually determined by the parties
to be reasonably necessary, at such times and places as the
parties mutually agree.
6
<PAGE> 7
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
3.3. i2 shall use its best efforts to: market, promote, advertise
and publicize the viaLink Services in both the viaLink Market
and other industries and provide Potential Customers with the
marketing, technical and/or training materials relating to
the viaLink Services and any such other relevant,
non-confidential information provided to i2 by viaLink, and
any such Proprietary Information of viaLink as is reasonably
necessary to further said activities; provided, however, that
such Proprietary Information shall, prior to any disclosure
to any third party, be made subject to a written
confidentiality agreement acceptable to viaLink, and binding
on said third party.
3.4. i2 shall not make any warranties, representations, assurances
or statements to any third parties, including, without
limitation, customers and/or Potential Customers of i2,
concerning the features and/or functionality of the viaLink
Services, that are misleading or materially different from
the descriptive literature supplied by viaLink or which
alters, amends or conflicts with the warranties, limitations,
terms and/or conditions of viaLink's then current
Subscription Service Agreement; provided i2 and viaLink agree
that if subsequent to execution of this Agreement, i2 or
viaLink determines that market conditions require i2 to offer
warranties or limitations different from those in the current
Subscription Service Agreement, viaLink and i2 shall
negotiate in good faith to change the warranties or
limitations which i2 may agree to with a customer based on
such market conditions.
3.5. i2 shall assist viaLink in facilitating viaLink's access to
international markets by providing advice and assistance in
determining market requirements and viaLink's capabilities.
3.6. i2 shall participate in and, if reasonably requested by
viaLink, assist in the organization and implementation of
jointly sponsored marketing events, conferences, executive
conferences and committee meetings related to the subject
matter of this Agreement.
3.7. i2 shall use its commercially reasonable efforts to increase
the visibility of both viaLink and the viaLink Services in
the viaLink Market and shall use commercially reasonable
efforts to promote the use of the viaLink Services.
3.8. During the term of this Agreement, viaLink shall be deemed to
have met all the requirements for being a complimentary gold
sponsorship Global Alliance Partner pursuant to i2's
Complementary Software Provider Program ("Alliance Program").
At no additional cost to viaLink, viaLink shall be entitled
to a complimentary gold level sponsorship at all i2 functions
and to all of the Global Alliance Partner benefits under such
Alliance Program, as such benefits are described and
explained on i2's Internet website or other i2 publications,
as the same may be amended from time to time, which
publications are incorporated herein by reference. It is
understood there may be fees charged to i2 Global Alliance
Partners to participate in certain marketing and sales
activities
7
<PAGE> 8
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
from time to time. Such fees will be charged to viaLink on
the same basis as other i2 Global Alliance Partners.
3.9. During the Term of this Agreement, i2 shall use viaLink
Licensed Trademarks and/or such other designations as are
reasonably required by viaLink in connection with all
advertising, marketing, promotion and/or participation by i2
in any Private Exchanges and/or Public Exchanges relating to
viaLink and to identify viaLink as the provider of viaLink
Services and/or the use of the software functionality
relating thereto.
3.10. If, during the Term of this Agreement, i2 establishes any
Private and/or Public Exchange(s) involving customers in the
viaLink Market, i2 shall exclusively utilize the viaLink
Services for and/in relation thereto.
3.11. i2 shall cause its Affiliates and any permitted
subcontractors to execute such agreements as reasonably
required by viaLink in order to protect confidentiality and
otherwise obtain full compliance by such Affiliates and/or
permitted subcontractors with, to the extent applicable, this
Agreement and the License.
3.12. i2 warrants and represents as follows:
3.12.1. that for the calendar year ended December 31, 2000,
i2 will generate gross revenue which forms the basis
for sums due to viaLink and/or i2 pursuant to
Sections 5.1 through 5.4 inclusive of this Agreement
("Goal Basis Revenue") in an amount of at least
$5,000,000; and
3.12.2. that for the calendar year ended December 31, 2001,
i2 will generate at least $25,000,000 in Goal Basis
Revenue.
3.12.3. that for the calendar year ended December 31, 2002,
i2 will generate at least $50,000,000 in Goal Basis
Revenue.
3.12.4. Within thirty (30) days after the end of each
calendar year covered by this Section 3.12, i2 shall
deliver to viaLink a detailed accounting of all such
gross revenues which relate to a determination of
whether or not i2 has met its obligations under this
Section 3.12. i2 shall also make available to
viaLink all records and documents relating to such
accounting.
3.12.5. If i2 breaches any of its obligations under this
Section 3.12, viaLink's sole remedy for such breach
shall be limited to the following:
8
<PAGE> 9
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
3.12.5.1. Within thirty (30) days after viaLink
receives all of the information required by
Section 3.12.4 and all additional documents
that viaLink reasonably requests in
conjunction therewith, viaLink may provide
a thirty (30) day prior written notice of
termination. If within the period of said
thirty (30) notice i2 pays to viaLink
seventy percent (70%) of the difference
between the actual Goal Basis Revenue and
the required Goal Basis Revenue for the
relevant year as set forth in section
3.12.1, 3.12.2, or 3.12.3, respectively. If
i2 does not pay such additional amount,
this Agreement shall terminate as set forth
in viaLink's termination notice under this
Section.
3.12.5.2. viaLink's exercise of such right shall not
however affect the obligations of either
party to pay to the other such sums as may
due to the party for transactions with
customers occurring before the effective
date of such termination or such other
rights or obligations which survive the
termination of this Agreement.
3.13. i2, at no cost to viaLink, shall provide training to viaLink
on its products and services to viaLink employees at such
times and places as the parties mutually agree.
Notwithstanding the foregoing, viaLink shall be responsible
for any of its costs incurred in attending the training or
the reasonable travel costs of i2 employees to travel to a
viaLink location to conduct the training.
3.14. Unless otherwise agreed, i2 shall only use viaLink to host
viaLink Services for any customers in the viaLink Market.
3.15. Unless otherwise agreed, in addition to other sums due under
this Agreement, i2 agrees that in the event that viaLink
hosts viaLink Services for customers outside of the viaLink
Market, viaLink shall be reimbursed for all of its costs of
implementing, developing, operating and/or hosting such
viaLink Services plus ten percent (10%) thereof; provided i2
shall have no obligation to use viaLink to host viaLink
Services for customers outside of the viaLink Market.
3.16. i2 shall be solely responsible for, and shall indemnify,
reimburse, defend, protect and hold viaLink harmless from,
any and all taxes on all transactions permitted pursuant to
the License and this Agreement.
4. JOINT RESPONSIBILITIES OF THE PARTIES
4.1. Each party shall regularly inform the other party about
general market developments and factors relating to the
viaLink Services in the marketplace and the possibility of
incorporating viaLink Services into projects and customer
implementations in which they are involved. This information
shall be treated as Proprietary Information of the party
providing the information.
4.2. Each party shall inform the appropriate personnel in its
organization of the existence of this Agreement and its
material obligations under this Agreement.
9
<PAGE> 10
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
4.3. Each party shall endeavor to keep the other party apprised of
new products and services relating to the viaLink Services.
4.4. The parties shall exchange such other information and conduct
such other activities as the parties mutually agree.
4.5. The parties through their respective project coordinators
will meet monthly to review each party's respective sales
efforts, contacts and plans relating to the marketing of the
viaLink Services and the parties' respective compliance with
the terms and conditions of this Agreement.
4.6. The parties shall meet at least quarterly to perform a
detailed review of the status of the relationship established
pursuant to this Agreement and the compliance of the parties
with their respective obligations under this Agreement.
4.7. The parties will create a mutually agreed business and
marketing communication plan within ninety (90) days from the
Effective Date that will outline the targeted business
objectives and sales/marketing activities of the parties
pursuant to the relationship created by this Agreement. Each
of the parties agrees to use reasonable commercial efforts to
perform its obligations delineated in such business plan.
4.8. Subject to the terms and conditions set forth in the License,
the parties will cooperate to jointly develop interfaces as
necessary between i2 and viaLink products and services
relevant to this Agreement. Ownership of any jointly
developed interfaces shall be as set forth in the License.
4.9. During the Term of this Agreement, each party shall comply
with all applicable laws.
5. COMMISSIONS AND PAYMENTS.
5.1. During the term of this Agreement, viaLink shall pay i2
[****] percent ([****]%) of the Subscription Service Revenue
with respect to which i2 had Significant Involvement (as
hereinafter defined) ("i2 Commission Fee"). Notwithstanding
the foregoing, such amount otherwise due to i2 with respect
to such a customer shall be increased to [****] percent
([****]%) if such customer is a Foreign Entity; provided,
however, that before viaLink is obligated to provide any
viaLink Services to any Foreign Entity, viaLink and i2 first
must have reached a mutually acceptable agreement pursuant to
which i2 agrees to reimburse viaLink for any additional costs
or expenses incurred by viaLink as a result of providing
viaLink Services to such Foreign Entity. If this Agreement
expires or is terminated for other than breach by i2, i2
shall, for a period of two years thereafter, continue to
receive the i2 Commission Fee based upon the service levels
during the last full month of the Term of the Agreement,
subject however to adjustment thereon for any changes in
viaLink's standard subscription prices, but less any amount
attributable to any viaLink customer which terminates its
Subscription Services Agreement with viaLink to the extent
any part of said final month's i2 Commission Fee was
attributable to the Subscription Services Agreement of such
customer.
5.1.1. "Significant Involvement" shall be determined by the
following factors:
10
<PAGE> 11
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
5.1.1.1. the extent to which i2 participated in the
introduction of the viaLink Services to an
individual whose position with a Potential
Customer entitles such person to either
make or substantially influence the
decision of the Potential Customer to enter
into a Subscription Services Agreement for
viaLink Services;
5.1.1.2. the extent to which i2 participated in the
selling process, including, but not limited
to, determining Potential Customer
requirements and suitability of viaLink
Services, identification of the appropriate
final decision makers, cost-benefit
analysis, proposal development and
presentation, technology and/or
interoperability assessment and
closing/contracting;
5.1.1.3. the extent to which i2 participates in
and/or undertakes responsibility with
regard to account management of the viaLink
customer, including, but not limited to,
relationship management and additional
business development activity; and
5.1.1.4. such other factors as may be relevant to a
particular customer of the viaLink
Services.
5.2. During the Term of this Agreement, if i2 establishes,
operates, participates in or otherwise operates a Private
Exchange for any customer which is involved in any commercial
activity within the viaLink Market, i2 shall pay to viaLink a
fee equal to [****] percent ([****]%) of the subscription
fees that viaLink would charge such customer and its trading
partners with which such customer is connected or otherwise
linked on such i2 Private Exchange (based on viaLink's then
current listed standard subscription prices without discount)
if such customer and/or trading partners had instead elected
to use viaLink's Services ("Private Exchange Service Fee").
Notwithstanding the foregoing, the Private Exchange Service
Fee payable to viaLink with respect to such customer shall be
reduced to [****] percent ([****]%) if such customer is a
Foreign Entity provided, however, that before viaLink is
obligated to provide any viaLink Services to any Foreign
Entity, viaLink and i2 first must have reached a mutually
acceptable agreement pursuant to which i2 agrees to reimburse
viaLink for any additional costs or expenses incurred by
viaLink as a result of providing viaLink Services to such
Foreign Entity. Nothing in this Section shall be construed as
in any way changing any restrictions otherwise placed on i2
pursuant to the License or elsewhere in this Agreement.
5.2.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Private Exchange Service Fees
to viaLink for the duration of the License.
5.3. During the Term of this Agreement, for any viaLink Services
provided to any customer within the viaLink Market through a
Public Exchange which is owned, marketed, operated or
participated in by i2, i2 shall pay viaLink [****] percent
([****]%) of the subscription fees that viaLink would charge
such customer and its trading partners, as the case may be,
with which such customer is connected or otherwise linked on
such Public Exchange
11
<PAGE> 12
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
(based on viaLink's then current listed standard subscription
prices without discount) if such customer had instead elected
to use viaLink's Services ("Public Exchange Service Fee").
Nothing in this Section shall be construed as in any way
changing any restrictions otherwise placed on i2 pursuant to
the License or elsewhere in this Agreement.
5.3.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Public Exchange Service Fees to
viaLink for the duration of the License.
5.4. During the Term of this Agreement, if i2 provides viaLink
Services or other services that, when considered in the
aggregate, are the same or substantially similar to the
viaLink Services to any customer not within the viaLink
Market on either a Private Exchange or on a Public Exchange
not hosted by viaLink, i2 shall pay to viaLink a fee equal to
[****] percent ([****]%) of the subscription fees that
viaLink would charge such customer and/or its trading
partners with which such customer is connected or otherwise
linked on such Private or Public Exchange (based on viaLink's
then current listed standard subscription prices without
discount) if such customer had elected to use viaLink's
Services. ("Undifferentiated Service Fee"). Nothing in this
Section shall be construed as in any way changing any
restrictions otherwise placed on i2 pursuant to the License
or elsewhere in this Agreement. If i2 and viaLink disagree as
to whether i2 is providing other services that, when
considered in the aggregate, are the same or substantially
similar to the viaLink Services to any customer not within
the viaLink Market, i2 and viaLink agree to submit the matter
to arbitration in accordance with Section 5.10 of this
Agreement.
5.4.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Undifferentiated Service Fees
to viaLink for the duration of the License. If i2
elects not to extend such License after the
termination of this Agreement, i2 shall, for a
period of two years thereafter, continue to pay to
viaLink an amount equal to the sum which it received
for the last full month of the Term of the Agreement
less the amount attributable to any customer of i2
(upon which such sum is based) who terminates its
services agreement with i2.
5.5. Notwithstanding anything to the contrary in this Agreement,
if, on or before January 31, 2000, viaLink enters into
subscription and/or services agreements of any kind with
[**********], [**********], [**********], [**********],
[**********], or [**********], unless the parties mutually
agree otherwise, viaLink shall not, at any time, be obligated
to pay i2 any sums which would otherwise be due to i2
pursuant to Section 5 of this Agreement or any of its
subsections based on any revenue from such companies or their
affiliated companies, divisions or subsidiaries.
5.6. During the Term of this Agreement, viaLink shall pay to i2
five percent (5%) of all Override Payment Revenue collected
by viaLink in each month of this Agreement.
12
<PAGE> 13
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
5.7. Any sums payable by a party pursuant to Sections 5.1 through
5.5 inclusive shall be paid by the last day of the month
following the month of collection.
5.8. Any sums payable by viaLink pursuant to Section 5.6 shall be
paid to i2 by the last day of the month following the month
in which such amounts were received by viaLink.
5.9. Any sums which are not reasonably disputed due by a party
pursuant to this Agreement and which are not paid when due
shall bear interest at the rate of (i) one percent (1%) per
month or (ii) the maximum amount allowed by law, whichever is
less.
5.10. The parties agree and acknowledge that determination of
whether i2 is entitled to the i2 Commission Fee set forth in
Section 5.1 and/or the determination of whether a customer or
trading partner is within the viaLink Market may not always
be clear. As such, if the respective coordinators of the
parties cannot agree on a resolution of either such issue,
then within ten (10) days after either party notifies the
other party that they cannot so agree, one senior management
employee of each party will meet in person or by
teleconference to attempt to resolve the issue. If at such
meeting, such senior management employees cannot agree on the
resolution of said issue, then the only further method of
resolving said issue shall be for either party to submit the
matter to binding arbitration. If the parties cannot agree on
an arbitrator, the American Arbitration Association ("AAA")
shall be used to choose the arbitrator to arbitrate the issue
pursuant to the AAA's then current commercial arbitration
rules. The arbitrator shall be a person who is familiar with
the issue(s) involved in the arbitration. The arbitration
shall be held in the Dallas, Texas offices of the AAA, or, if
the parties agree, may be handled by teleconference. The
arbitration shall be completed within forty-five (45) days of
the date that the arbitration demand is made. Prior to such
arbitration each party shall make available to the other
party such documents as are reasonably relevant to the issues
which are the subject of the arbitration. All such documents
produced pursuant to this Section shall be deemed to be
Proprietary Information. Each party shall bear its own costs
incurred in or as a result of the arbitration; provided
however the costs or expenses incurred by the arbitrator
shall be split equally by the parties. All information
relating to the arbitration process shall be Proprietary
Information of each party; and provided, however, such
information may be revealed if it becomes relevant to any
litigation between the parties or if such disclosure is
required by law. The decision of the Arbitrator in regards to
the issues before him shall be final and binding upon the
parties
6. CONFIDENTIALITY/NONDISCLOSURE:
6.1. It is expected that the parties may disclose to each other
certain Proprietary Information
13
<PAGE> 14
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
6.2. RIGHTS AND OBLIGATIONS. All Proprietary Information owned
solely by one party and disclosed to the other party shall
remain solely the property of the disclosing party. The
parties agree to hold each other's Proprietary Information in
confidence. The receiving party will limit disclosure of the
disclosing party's Proprietary Information to the receiving
party's employees who have a need to know and who have signed
written agreements enabling the receiving party to fully
comply with its obligations hereunder. The receiving party
shall not make the disclosing party's Proprietary Information
available in any form to any third party, except to
contractors with a need to know and with which the receiving
party has written agreements in place enabling the receiving
party to fully comply with its obligations hereunder. Each
party agrees not to use the other party's Proprietary
Information for any purpose other than the implementation of
this Agreement. This Section shall survive termination or
expiration of this Agreement. Each party will be liable for
any unauthorized disclosure or uses by its employees, agents
and/or contractors of the other party's Proprietary
Information. Without prejudice to the rights and remedies
otherwise available to a party hereto, each of the parties
shall be entitled to equitable relief by way of injunction or
otherwise if the other party hereto or any of its employees,
agents or contractors breach or threaten to breach any of the
provisions of this Section.
7. TRADEMARK USAGE:
7.1. For the Term of this Agreement, and subject to the terms of
this Agreement, i2 grants to viaLink a nonexclusive,
worldwide, royalty free, fully paid-up license to use in
connection with advertising and marketing the relationship
created by this Agreement, i2's product names, service marks
and trademarks ("i2 Licensed TradeMarks"). viaLink shall use
such i2 Licensed Trademarks as designated by i2 when
marketing or promoting i2 products or services. viaLink shall
not have any right to sublicensee such rights granted
pursuant to this Section 7.1.
7.2. For the Term of this Agreement, and subject to the terms of
this Agreement, viaLink grants to i2 a nonexclusive,
worldwide, royalty free, fully paid-up license to use in
connection with advertising and marketing viaLink's Services
in the viaLink's Market, viaLink's service and or product
names relating to the viaLink Services, including, without
limitation, viaLink(R) Item Catalog and viaLink(R) Chain
Pricing ("viaLink Licensed TradeMarks"). i2 shall use such
viaLink Licensed Trademarks as designated by viaLink when
marketing or promoting viaLink products or services. i2 shall
not have any right to sublicense such rights granted pursuant
to this Section 7.2.
7.3. RIGHTS AND OBLIGATIONS REGARDING TRADEMARK LICENSES:
7.3.1. PARTIES. For purposes of this Agreement the party
granting the license in the Licensed TradeMarks
shall be referred to as the "Trademark Licensor" and
the party receiving the rights to use the
14
<PAGE> 15
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
Licensed TradeMarks of the other party hereto shall
be referred to as the "Trademark Licensee".
7.3.2. MAINTENANCE OF QUALITY. In the course of producing
and distributing the products or services authorized
by this Agreement under the Licensed TradeMarks, the
Trademark Licensee shall maintain and adhere to
standards of quality and technical specifications
("Standards and Specifications") as reasonably
required from time to time by the Trademark
Licensor. The Standards and Specifications are
and/or shall be designed to ensure that the quality
of any of the services or products produced,
packaged, and licensed under the Licensed TradeMarks
are consistent with the quality of the products
distributed under the Licensed TradeMarks by the
Trademark Licensor or with the reputation enjoyed by
the Licensed TradeMarks.
7.3.3. To ensure that the Standards and Specifications
hereinabove described are maintained, the Trademark
Licensor and its authorized agents and
representatives shall have the right at all
reasonable times, with prior notice to the Trademark
Licensee, to inspect reasonable samples of the
products and to inspect the books and records of a
party, all as they relate to such party's compliance
with the Standards and Specifications.
7.3.4. The Trademark Licensee shall, from time to time,
upon the request of the Trademark Licensor, furnish
without cost to Trademark Licensor a reasonable
number of samples of the Products, which samples may
be selected at random by Trademark Licensor.
7.3.5. Trademark Licensee acknowledges Trademark Licensor's
exclusive right, title, and interest in Trademark
Licensor's Licensed Trademarks and acknowledges that
nothing herein shall be construed to accord to
Trademark Licensee any rights in any of the Licensed
TradeMarks except as otherwise expressly so provided
in this Agreement. Trademark Licensee acknowledges
that its use of the Licensed TradeMarks hereunder
will not create in it any right, title or interest
in the Trademark Licensor's Licensed TradeMarks and
that all such use of the Licensed Marks and the
goodwill generated thereby will inure to the benefit
of Trademark Licensor. Trademark Licensee warrants
and represents with respect thereto as follows:
15
<PAGE> 16
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
7.3.5.1. Trademark Licensee will not at any time
challenge Trademark Licensor's right,
title, or interest in the Licensed
TradeMarks or the validity of any of the
Licensed Marks or any registration thereof;
7.3.5.2. Trademark Licensee will not do or cause to
be done or omit to do anything, the doing,
causing, or omitting of which would contest
or in any way impair or tend to impair the
rights of Trademark Licensor in the
Licensed TradeMarks;
7.3.5.3. Trademark Licensee will not represent that
it has any ownership in or rights with
respect to the Licensed TradeMarks other
than rights conferred by this Agreement;
and
7.3.5.4. Trademark Licensee will not, either during
or subsequent to the term of this
Agreement, use any trademark, service mark,
trade name, insignia or logo that is
confusingly similar to or a colorable
imitation of any of the Licensed
TradeMarks.
7.3.5.5. Trademark Licensee will comply with all
laws governing production, distribution,
licensing, and marketing of the Products.
7.3.5.6. Trademark Licensee shall display, in a
manner consistent with Trademark Licensor's
Standards and Specifications, the Licensed
TradeMarks on packaging for each of the
products and services, visual displays on
initial computer screens, and in marketing
activities respecting the products and
services.
7.3.5.7. Trademark Licensee shall not use the
Licensed TradeMarks on or in connection
with any screen display, packaging, or
marketing material to which Trademark
Licensor at any time reasonably objects.
7.3.5.8. Trademark Licensee shall (1) cause the
appropriate designation "TM" "SM" or the
registration symbol "(R)" to be placed
adjacent to the Licensed TradeMarks in
connection with each use or display thereof
and to indicate such additional information
as Trademark Licensor shall reasonably
specify from time to time concerning the
license rights under which Trademark
Licensee uses the Licensed Marks; and (2)
comply with all laws pertaining to
trademarks in force.
7.3.6. CHANGES AND MODIFICATIONS TO THE LICENSED MARKS.
Trademark Licensor expressly reserves the right from
time to time to modify and change the Licensed
TradeMarks. The Licensed TradeMarks, as so modified
or changed, shall for all purposes be deemed to be
the Licensed TradeMarks referred to in this
Agreement. Any and all such modifications or changes
in said Licensed TradeMarks developed or adopted by
Trademark Licensor shall be the sole and absolute
property of Trademark Licensor, and Trademark
Licensor may incorporate the same in the Licensed
TradeMarks and shall have the exclusive right to
register such modified or changed marks as
trademarks and/or service marks.
7.3.7. INFRINGEMENT:
16
<PAGE> 17
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
7.3.7.1. Trademark Licensee and Trademark Licensor
shall each provide the other with prompt
notice of any actual or apparent
infringement of the Licensed TradeMarks,
any petition to cancel any registration of
any of the Licensed TradeMarks, or any
attempted use of or any application to
register any mark confusingly similar to,
or a colorable imitation of, any of the
Licensed TradeMarks of which it becomes
aware. Trademark Licensor shall have
primary responsibility to:
7.3.7.1.1. Institute and prosecute any
actions for such infringement of
the Licensed Marks;
7.3.7.1.2. Defend any petition to cancel
any registration of any of the
Licensed TradeMarks; and
7.3.7.1.3. Oppose any attempted use of or
any application to register any
mark confusingly similar to, or a
colorable imitation of, any of
the Licensed TradeMarks.
7.3.7.2. Any damages and costs recovered through
such proceedings shall belong exclusively
to Trademark Licensor, and Trademark
Licensor shall be solely responsible for
all costs and expenses (including
attorney's fees) of prosecuting such
actions. Trademark Licensee shall provide
Trademark Licensor with reasonably
requested assistance in connection with
such proceedings, and Trademark Licensor
shall reimburse Trademark Licensee's
reasonable out-of-pocket costs of providing
such assistance. Trademark Licensor shall
keep Trademark Licensee informed of the
status of any such proceeding and supply
Trademark Licensee with any reasonably
requested documents regarding such
proceeding.
7.3.8. Trademark Licensee shall defend, indemnify and save
harmless Trademark Licensor, its subsidiaries and
affiliates, and their respective successors and
assigns from all losses, costs, liabilities,
damages, claims, and expenses of every kind and
description, including reasonable attorney's fees,
arising out of or resulting from any act or omission
of Trademark Licensee or any permitted sublicensee
relating to the production, distribution, licensing,
or marketing of any of the products or services in
connection with which the Licensed TradeMarks are
used, including, but not limited to (1) unfair or
fraudulent advertising claims, warranty claims, and
product defect or liability claims pertaining to the
products or services; and (2) claims for
unauthorized use or misuse of any patent, trademark,
copyright, or other proprietary right owned, used or
controlled by any third party pertaining to the
production, distribution, licensing, or marketing of
the products or services.
7.3.8.1. In addition to any other rights or remedies
granted under this Agreement, but subject
to the Trademark Licensee's right to cure
as hereinafter set forth, Trademark
Licensor may, at its option, upon written
notice to Trademark Licensee, without
prejudice to
17
<PAGE> 18
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
any other remedies it may have, terminate
the rights granted to the Trademark
Licensee in the Licensed Trademarks
pursuant to this Agreement if the Trademark
Licensee violates any of its obligations
under this Section 7; provided however
Trademark Licensee shall have ten (10) days
after receipt of such notice to cure any
alleged breach.
7.3.8.2. Trademark Licensee agrees that the remedy
at law of Trademark Licensor for any act or
event that constitutes an event of
termination under Section 7 of this
Agreement, Trademark Licensor shall be
entitled to seek and/or obtain injunctive
relief, specific performance or other such
equitable relief.
7.3.9. Upon the termination of this Agreement for any
reason, all rights of Trademark Licensee to use the
Licensed TradeMarks in the Territory shall
immediately thereafter cease. Trademark Licensee
shall not thereafter operate or conduct business
under any name or in any manner that might tend to
give the general public the impression that this
Agreement is still in force, or that Trademark
Licensee any right to use any of the Licensed
TradeMarks.
7.3.10. The indemnification obligations and set forth in
this Section 7 shall survive the termination and/or
expiration of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES:
8.1. Representations and Warranties of viaLink:
8.1.1. viaLink is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Oklahoma and has full corporate power and
authority to enter into this Agreement.
8.1.2. The execution, delivery and performance by viaLink
of this Agreement and the agreements, instruments
and documents contemplated by this Agreement do not
breach any term or provision of or constitute a
default under any material indenture, mortgage, deed
of trust, contract, agreement, lease or other
commitment or instrument to which viaLink is a party
or by which viaLink or its assets or properties are
bound, do not conflict with any provision of the
certificate of incorporation or bylaws of viaLink
and do not constitute an event which, with the lapse
of time or action by a third party, could result in
any default under any of the foregoing.
8.1.3. The execution, delivery and performance by viaLink
of this Agreement and the agreements, instruments
and documents contemplated by this Agreement do not
violate any provision of, or constitute default
under, any law, rule or regulation, or any court
order, writ, injunction or decree, of any court or
other governmental agency or instrumentality
applicable to or binding upon viaLink. viaLink has
full power, authority and legal right to enter into
this Agreement and the agreements, instruments and
documents
18
<PAGE> 19
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
contemplated by this Agreement and to consummate the
contemplated transactions.
8.1.4. This Agreement and the agreements, instruments and
documents contemplated by this Agreement have been
duly authorized by all requisite action of the
directors and shareholders of viaLink. Upon
execution and delivery by viaLink of this Agreement
and the agreements, instruments and documents
contemplated by this Agreement, they will each be a
valid and binding obligation of viaLink, enforceable
in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights
of creditors generally. Notwithstanding the
foregoing, no representation or warranty is made
regarding the availability of equitable remedies.
8.1.5. There is no agent's, broker's or finder's fee or
commission payable in connection with this Agreement
by virtue of or resulting from any action or
agreement of viaLink or its affiliates or
associates.
8.1.6. REPRESENTATIONS AND WARRANTIES OF i2.
8.1.6.1. i2 is a corporation duly organized, validly
existing and in good standing under the
laws of the State of Delaware and has full
corporate power and authority to enter into
this Agreement.
8.1.6.2. The execution, delivery and performance by
i2 of this Agreement and the agreements,
instruments and documents contemplated by
this Agreement by do not breach any term or
provision of or constitute a default under
any material indenture, mortgage, deed of
trust, contract, agreement, lease or other
commitment or instrument to which i2 is a
party or by which i2 or its assets or
properties are bound, do not conflict with
any provision of the certificate of
incorporation or bylaws of i2 and do not
constitute an event which, with the lapse
of time or action by a third party, would
result in any default under any of the
foregoing.
8.1.6.3. The execution, delivery and performance by
i2 of this Agreement and the agreements,
instruments and documents contemplated by
this Agreement do not violate any provision
of, or constitute default under, any law,
rule or regulation, or any court order,
writ, injunction or decree, of any court or
other governmental agency or
instrumentality applicable to or binding
upon i2. i2 has full power, authority and
legal right to enter into this Agreement
and the agreements, instruments and
documents contemplated by this Agreement
and to consummate the contemplated
transactions.
8.1.6.4. This Agreement and the agreements,
instruments and documents contemplated by
this Agreement have been duly authorized by
all requisite action of the directors and
shareholders of i2. Upon execution and
delivery by i2 of this Agreement and the
agreements, instruments and documents
19
<PAGE> 20
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
contemplated by this Agreement, they will
each be a valid and binding obligation of
i2, enforceable in accordance with its
terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of
creditors generally. Notwithstanding the
foregoing, no representation or warranty is
made regarding the availability of
equitable remedies. There is no agent's,
broker's or finder's fee or commission
payable in connection with this Agreement
by virtue of or resulting from any action
or agreement of i2 or its affiliates or
associates.
9. TERM AND TERMINATION
9.1. The Initial Term of this Agreement shall commence on the
Effective Date and, unless sooner terminated in accordance
with its terms, shall end on December 31, 2003. It will
thereafter automatically renew on a year to year basis
("Renewal Term") unless a party, upon at least three (3)
months written notice prior to end of the Initial Term or the
then current Renewal Term, as the case may be, notifies the
other party that it will terminate the Agreement as of the
end of such Term or Renewal Term.
9.1.1. Notwithstanding anything to the contrary in this
Agreement, the parties agree and understand that if
the Closing of the Securities Purchase Agreement
does not occur, this Agreement is null and void and
of no further force and effect.
9.2. In addition to such rights of termination as may be expressly
provided to one or both parties elsewhere in this Agreement,
a party may terminate this Agreement:
9.2.1. If the other party fails to pay any sums due
hereunder to that party and fails to cure the same
within ten (10) days after receipt of written notice
of such default;
9.2.2. If the other party materially fails to fulfill any
of its material obligations under this Agreement or
under the License (a "breach"), if such breach does
not otherwise permit the non-breaching party to
terminate pursuant to any other term of this
Agreement or the License, and the breaching party
fails to cure such breach within thirty (30) days
after receiving written notice from the
non-breaching party of such breach and the intention
of such non-breaching party to terminate this
Agreement; provided however that with respect to
those breaches which are curable but which cannot be
reasonably cured within such thirty (30) day period,
the breaching party shall have such period of time
to cure such breach as would be required by a party,
in the exercise of good faith and commercially
reasonable efforts, to cure such breach; provided
further, that such breaching party shall in fact
exercise such good faith and such commercially
reasonable efforts to attempt to cure such breach.
The failure to cure such breach as stated in the
preceding sentence will result in the termination of
this Agreement as of the end of such period without
prejudice to any other rights the parties may have;
or
20
<PAGE> 21
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
9.2.3. Immediately, and notwithstanding the foregoing, upon
written notice if
9.2.3.1. The other party is adjudged insolvent or
bankrupt, or upon the institution of any
proceeding against the other party seeking
relief, reorganization, or arrangement
under any laws relating to insolvency, or
for the making of any assignment for the
benefit of creditors, or upon the
appointment of a receiver, liquidator or
trustee of any of the other party's
property or assets, or upon liquidation,
dissolution or winding up of the other
party's business; or
9.2.3.2. The other party breaches the
confidentiality provisions set forth in
Section 6; or
9.2.3.3. The other party breaches the License.
9.3. Within thirty (30) days after the termination or expiration
of this Agreement, except to the extent otherwise allowed
under the License, each party shall return to the other party
all Proprietary Information and shall return or dispose of
(as mutually agreed) all advertising materials and other
property, including all Proprietary Information, furnished to
it by the other party pursuant to this Agreement. Each party
shall certify in writing to the other that it has done so.
10. INDEMNIFICATION.
10.1. Subject to the provisions of this Section 10 and all of its
subsections, viaLink will indemnify in respect of, and hold
i2 and its affiliates and their respective officers,
directors, employees and agents harmless against, any and all
damages, claims, deficiencies, losses, including taxes, and
all expenses (including interest, penalties, and attorneys'
and accountants' fees and disbursements but reduced by any
tax savings, benefits or offsets to which any party shall be
entitled directly or indirectly by reason thereof)
(collectively "Damages") resulting from any
misrepresentation, breach of warranty or nonfulfillment or
failure to perform any covenant or agreement on the part of
viaLink under this Agreement.
10.2. Subject to the provisions of this Section 10 and all of its
subsections, i2 agrees to indemnify in respect of, and hold
viaLink and its affiliates and their respective officers,
directors, employees and agents harmless against, any and all
Damages resulting from any misrepresentation, breach of
warranty, or nonfulfillment or failure to perform any
covenant or agreement on the part of i2 or any of its
Affiliates under this Agreement or the License.
10.3. METHOD OF ASSERTING CLAIMS, ETC. The party or parties
claiming indemnification under the Agreement (whether one or
more) are hereinafter collectively referred to as the
"Indemnified Party" and the party against whom such claims
are asserted hereunder is hereinafter referred to as the
"Indemnifying Party." All claims for indemnification by any
21
<PAGE> 22
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
Indemnified Party under this Agreement will be asserted and
resolved as follows:
10.3.1. (a) In the event that any claim or demand for which
an Indemnifying Party would be liable to an
Indemnified Party hereunder is asserted against or
sought to be collected from such Indemnified Party
by a third party (a "Third Party Claim"), such
Indemnified Party will with reasonable promptness
notify the Indemnifying Party of such claim or
demand, specifying the nature of and specific basis
for such claim or demand and the amount or the
estimated amount thereof to the extent then feasible
(which estimate will not be conclusive of the final
amount of such claim and demand (the "Claim
Notice"). The Indemnifying Party will not be
obligated to indemnify such Indemnified Party with
respect to any such claim or demand to the extent
the failure of such Indemnified Party to promptly
notify the Indemnifying Party of such a claim or
demand materially prejudices the Indemnifying
Party's ability to defend against the claim or
demand. The Indemnifying Party will have thirty (30)
days from the personal delivery or mailing of the
Claim Notice (the "Notice Period") to notify such
Indemnified Party (i) whether or not it disputes the
liability of the Indemnifying Party to such
Indemnified Party hereunder with respect to such
claim or demand and (ii) whether or not it desires
at the sole cost and expense of the Indemnifying
Party, to defend such Indemnified Party against such
claim or demand; provided, however, that such
Indemnified Party is hereby authorized prior to and
during the Notice Period to file any motion, answer
or other pleading which it deems necessary or
appropriate to protect its interests or those of the
Indemnifying Party and not materially prejudicial to
the Indemnifying Party; provided, further, nothing
contained in the immediately preceding proviso will
be deemed to authorize the Indemnified Party to make
any filings referenced therein after the
Indemnifying Party has given notice of the
Indemnifying Party's intent to assume the defense of
the applicable Third Party Claim. In the event that
the Indemnifying Party notifies such Indemnified
Party within the Notice Period that it desires to
defend such Indemnified Party against such claim or
demand, except as hereinafter provided, the
Indemnifying Party will have the exclusive right to
defend by all appropriate proceedings. If such
Indemnified Party desires to participate in, but not
control, any such defense or settlement it may do so
at its sole cost and expense. If requested by the
Indemnifying Party, such Indemnified Party agrees to
cooperate with the Indemnifying Party and its
counsel in contesting any claim or demand which the
Indemnifying Party elects to contest, and, if
appropriate and related to the claim in question, in
making any counterclaim against the person asserting
the third party claim or demand, or any
cross-complaint against any person. No claim may be
settled by the Indemnifying Party without the
consent of such Indemnified Party, which consent
22
<PAGE> 23
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
will not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, in
connection with a Third Party Claim asserted against
both such Indemnified Party and the Indemnifying
Party, if (i) such Indemnified Party has available
to it defenses which are in addition to those
available to the Indemnifying Party, (ii) such
Indemnified Party has available to it defenses which
are inconsistent with the defenses available to the
Indemnifying Party or (iii) a conflict exists or may
reasonably be expected to exist in connection with
the representation of both such Indemnified Party
and the Indemnifying Party by the legal counsel
chosen by the Indemnifying Party, such Indemnified
Party will have the right to select its own legal
counsel subject to the approval of such legal
counsel by the Indemnifying Party, such approval not
to be unreasonably withheld, conditioned or delayed.
If such Indemnified Party selects its own legal
counsel pursuant to the immediately preceding
sentence and the underlying Third Party Claim is
otherwise subject to the scope of the
indemnification obligations of the Indemnifying
Party pursuant to this Agreement, the reasonable
fees and expenses of such legal counsel will be
included within the indemnification obligations of
the Indemnifying Party; provided that under no
circumstances will the Indemnifying Party be
obligated to indemnify such Indemnified Party
against the fees and expenses of more than one law
firm selected by such Indemnified Party in
connection with a single claim (notwithstanding the
number persons against whom the Third Party Claim
may be asserted).
10.3.2. In the event any Indemnified Party should have a
claim against any Indemnifying Party hereunder which
does not involve a claim or demand being asserted
against or sought to be collected from it by a third
party, such Indemnified Party will send a Claim
Notice with respect to such claim to such
Indemnifying Party. If such Indemnifying Party does
not notify such Indemnified Party within the Notice
Period that such Indemnifying Party disputes such
claim, the amount of such claim will be conclusively
deemed a liability of such Indemnifying Party
hereunder.
10.4. Except to the extent such right of indemnification arises
under Section 9.1 of the License, viaLink will, at its own
expense, indemnify and hold harmless (except with respect to
the value of the time of an employee of i2 and/or any
Affiliate of i2) i2 and its Affiliates against any suits,
claims, actions, losses, damages, expenses (including
attorney's fees and costs) or liabilities that may result
from any allegations that any products or services provided
by viaLink pursuant to this Agreement constitute an
infringement, misappropriation or misuse of any patent,
copyright, trademark or trade name or trade secret or other
intellectual property right protected by the laws of the any
state thereof ("viaLink Challenged Products/Services");
provided i2 gives viaLink prompt notice, in writing, of the
institution of such suit or the assertion of such claim and
23
<PAGE> 24
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
permits viaLink through its counsel to defend the same and
gives viaLink all reasonably available information and
assistance and authority to enable viaLink to do so. viaLink
will have control of the defense of any such suit including
appeals, and of all negotiations with respect thereto,
including the right to effect settlement or compromise. If,
at any time, in viaLink's opinion any products or services
provided by viaLink pursuant to this Agreement are likely to
become the subject of such an infringement, misappropriation
or misuse claim or suit, viaLink will have the following
options: (a) procure for i2, at viaLink's expense, the right
to continue using such products or services; (b) replace or
modify such products or services, at viaLink's expense, so
that such products or services become non-infringing but
without substantially and adversely changing their original
functionality; (c) permit i2 to procure, at viaLink's
expense, substitute products or services of comparable
quality and function to replace the viaLink Challenged
Products/Services; or (d) if none of (a), (b) nor (c) is
commercially reasonable, discontinue providing the viaLink
Challenged Product/Service, and release i2 from any further
obligations with respect to such viaLink Challenged
Product/Service. viaLink will have no liability under any
provision of this Section 10 with respect to any claim if (a)
the infringement, misappropriation or misuse is based upon
(and would not have occurred without) (i) the use of the
viaLink Challenged Products/Services with any equipment or
software not made, provided or contracted for by viaLink
(unless such use is authorized by viaLink or is mutually
agreed to by the parties), (ii) any modification of such
viaLink Challenged Products/Services by i2 (unless such
modification is authorized by viaLink or is mutually agreed
to by the parties), or (iii) compliance by viaLink with i2's
unique written specifications or instructions (excluding
general product/services functionality requirements of i2) or
(b) a demand for indemnification arises, directly or
indirectly out of an allegation of infringement,
misappropriation or misuse asserted by the parents,
subsidiaries or other Affiliates of i2. The foregoing states
the entire liability of viaLink with respect to infringement
of patents, copyrights, trade secrets, trade marks or other
third party intellectual property rights by the viaLink
Challenged Products/Services, and any resulting
unavailability of the viaLink Challenged Products/Services.
viaLink agrees that the limitations set forth in Section
10.6, including, without limitation, the limitation on
viaLink's maximum aggregate liability, will not apply to
viaLink's liability under the provisions of this Section
10.4.
10.5. Except to the extent such right of indemnification arises
under Section 9.1 of the License, i2 will, at its own
expense, indemnify and hold harmless (except with respect to
the value of the time of an employee of viaLink and/or any
Affiliate of viaLink) viaLink and its Affiliates against any
suits, claims, actions, losses, damages, expenses (including
attorney's fees and costs) or liabilities that may result
from any allegations that any products or services provided
by i2 pursuant to this Agreement constitute
24
<PAGE> 25
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
an infringement, misappropriation or misuse of any United
States patent, copyright, trademark or trade name or trade
secret or other intellectual property right protected by the
laws of the United States or any state thereof ("i2
Challenged Products/Services"); provided viaLink gives i2
prompt notice, in writing, of the institution of such suit or
the assertion of such claim and permits i2 through its
counsel to defend the same and gives i2 all reasonably
available information and assistance and authority to enable
i2 to do so. i2 will have control of the defense of any such
suit including appeals, and of all negotiations with respect
thereto, including the right to effect settlement or
compromise. If, at any time, in i2's opinion any products or
services provided by i2 pursuant to this Agreement are likely
to become the subject of such an infringement,
misappropriation or misuse claim or suit, i2 will have the
following options: (a) procure for viaLink, at i2's expense,
the right to continue using such products or services; (b)
replace or modify such products or services, at i2's expense,
so that such products or services become non-infringing but
without substantially and adversely changing their original
functionality; (c) permit viaLink to procure, at i2's
expense, substitute products or services of comparable
quality and function to replace the i2 Challenged
Products/Services; or (d) if none of (a), (b) nor (c) is
commercially reasonable, discontinue providing the i2
Challenged Product/Service, and release viaLink from any
further obligations with respect to such i2 Challenged
Product/Service. i2 will have no liability under any
provision of this Section 10.5 with respect to any claim if
(a) the infringement, misappropriation or misuse is based
upon (and would not have occurred without) (i) the use of the
i2 Challenged Products/Services with any equipment or
software not made, provided or contracted for by i2 (unless
such use is authorized by i2 or is mutually agreed to by the
parties), (ii) any modification of such i2 Challenged
Products/Services by viaLink (unless such modification is
authorized by i2 or is mutually agreed to by the parties), or
(iii) compliance by i2 with viaLink's unique written
specifications or instructions (excluding general
product/services functionality requirements of viaLink) or
(b) a demand for indemnification arises, directly or
indirectly out of an allegation of infringement,
misappropriation or misuse asserted by the parents,
subsidiaries or other Affiliates of viaLink. The foregoing
states the entire liability of i2 with respect to
infringement of patents, copyrights, trade secrets, trade
marks or other third party intellectual property rights by
the i2 Challenged Products/Services, and any resulting
unavailability of the i2 Challenged Products/Services. i2
agrees that the limitations set forth in Section 10.6,
including, without limitation, the limitation on i2's maximum
aggregate liability, will not apply to i2's liability under
the provisions of this Section 10.5.
10.6. EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, THE OTHER PARTY HAS NOT MADE ANY
REPRESENTATION OR WARRANTY
25
<PAGE> 26
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
REGARDING THE PRODUCTS AND/OR SERVICES TO BE PROVIDED BY SUCH
OTHER PARTY PURSUANT TO THIS AGREEMENT. EACH PARTY DISCLAIMS
ANY IMPLIED WARRANTY WITH RESPECT TO THE MERCHANTABILITY,
DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY,
CAPACITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PRODUCTS AND SERVICES PROVIDED BY IT. Each
party agrees that the other party will not be liable for
exemplary, special, incidental, consequential or punitive
damages or "costs of cover" (including, without limitation,
costs of procuring substitute products or services) which
arise directly or indirectly out of the purchase, sale and/or
use of the products and/or services to be provided by such
other party pursuant to this Agreement whether such damages
are asserted in an action brought in contract, in tort or
pursuant to some other theory and whether the possibility of
such damages was made known or was foreseeable. Each party
further acknowledges that, except as set forth in Sections 6,
10.4 and/or 10.5, or as such liability may arise under the
License, each party's maximum aggregate liability to the
other party under any legal theory (including its own
negligence) for damages arising directly or indirectly out of
the purchase, sale and/or use of the products and/or services
to be provided pursuant to this Agreement will not in any
event exceed the lesser of (i) the actual damages suffered or
(ii) $500,000. Accordingly, each party agrees to assume the
responsibility for insuring against or otherwise bearing the
risk of greater damages. Each party acknowledges that the
pricing of the products and/or services to be provided
pursuant to this Agreement reflects the intent of the parties
to limit each party's liability as provided herein. The
limitations of liability set forth in this Section 10.6 are
intended to limit each party's liability and will apply
notwithstanding the failure of the essential purpose of any
limited remedy.
11. OWNERSHIP OF INTELLECTUAL PROPERTY
11.1. Other than as set forth in the License, viaLink shall retain
all right, title and interest in and to all patent,
copyright, trade secret, trademark and other intellectual
property rights ("Intellectual Property Rights") in the
viaLink software and technology and any modifications,
extensions or derivative works of or relating thereto
regardless of whether made by i2 or viaLink. i2 agrees to
execute and deliver (upon request of viaLink) and any and all
deeds, assignments, conveyances, applications or other
documents or instruments necessary to vest title thereto in
viaLink or to protect or perfect viaLink's rights with
respect thereto. Other than as set forth in the License, i2
shall retain all right, title and interest in and to all
patent, copyright, trade secret, trademark and other
intellectual property rights ("Intellectual Property Rights")
in the i2 software and technology and any modifications,
extensions or derivative works of or relating thereto
regardless of whether made by i2 or viaLink. viaLink agrees
to execute and deliver (upon request of i2) and any and all
deeds, assignments, conveyances, applications or other
documents or
26
<PAGE> 27
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
instruments necessary to vest title thereto in i2 or to
protect i2's rights with respect thereto. Ownership of any
Interface Software developed shall be as set forth in the
License.
12. MISCELLANEOUS
12.1. RELATIONSHIP OF PARTIES. i2 and viaLink are independent
contractors acting for their own account, and neither party
is authorized to make any representation or commitment on
behalf of the other party. Nothing contained herein will be
deemed to create any agency, partnership, joint venture or
similar relationship between the parties.
12.2. FORCE MAJEURE. Neither party shall be liable to the other for
failure or delay in the performance of a required obligation
if such failure or delay is caused by riot, fire, flood,
explosion, earthquake or other natural disaster, government
regulation, or other similar cause beyond such party's
control, provided that such party gives prompt written notice
of such condition and resumes its performance as soon as
possible, and provided further that the other party may
terminate this Agreement if such condition continues for a
period of one hundred eighty (180) days or more.
12.3. NON-SOLICITATION. For a period of twelve (12) months
following the date a party's employee ceases to perform
services pursuant to this Agreement, neither party (without
the prior written consent of the other party) shall solicit
or hire or independently contract with that employee or for
any of the other party's employees performing such service.
This provision shall not restrict the right of either party
to solicit or recruit generally in the media.
12.4. NOTICES. All notices, reports, requests, acceptances and
other communications required or permitted under this
Agreement will be in writing and shall be sufficient only if
personally delivered, delivered by a major commercial
overnight delivery courier service (such as Federal Express),
sent via facsimile, or mailed, postage or charges prepaid, by
certified or registered mail, return receipt requested to a
party at its address/telephone number, as applicable, as set
forth below or to such other address/telephone number as
applicable that the receiving party may have provided for
purposes of receiving notices as provided in this Section.
Notices will be deemed given when actually received, except
that if not received sooner, notice by mail shall be deemed
received five (5) days after deposit in the U.S. mail:
12.4.1. IF TO i2, TO:
i2 Technologies, Inc.
909 E. Las Colinas Blvd., 16th Floor
Irving, Texas 75039
Attention: Robert C. Donohoo
Fax: 1-214-850-6893
27
<PAGE> 28
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
with a copy (which shall not constitute notice) to:
Brobeck, Phleger & Harrison LLP
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Attention: Ronald G. Skloss
Fax: 512-477-5813
12.4.2. If to viaLink, to:
The viaLink Company
13800 Benson Road
Edmond, Oklahoma 73103
Attention: Lewis B. Kilbourne, CEO
Fax: 405-936-2599
with a copy (which shall not constitute notice) to:
Richard M. Klinge and Associates, P.C.
510 East Memorial Road, Suite C-1
Oklahoma City, Oklahoma 73114
Attention: Richard M. Klinge, General Counsel
Fax: 405-775-9003
12.5. ENTIRE AGREEMENT. This Agreement, all Exhibits hereto, and
any work orders hereunder constitute the entire agreement
between the parties with respect to the subject matter hereof
and supersede all agreements and understanding between
viaLink and i2 with respect to the subject matter hereof made
prior to the date hereof; provided, however, the
Nondisclosure Agreement dated the 23rd day of August, 1999
("Nondisclosure Agreement") shall remain in full force and
effect according to its terms.
12.6. CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas,
without reference to its choice of law rules.
12.7. ATTORNEY'S FEES. In any action to enforce this Agreement,
other than an arbitration pursuant to section 5.10 of this
Agreement, the prevailing party will be entitled to its costs
and reasonable attorneys' fees.
12.8. SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent
be determined by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect.
12.9. WAIVER. Unless otherwise agreed in writing by the parties, no
waiver or failure to exercise any option, right or privilege
under the terms of this Agreement by either of the parties
hereto on any occasion or occasions shall be construed to be
a waiver of the same on any other occasion or of any other
option, right or privilege and no extension of time granted
by any party for the performance of any obligation or act by
any other party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
28
<PAGE> 29
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
12.10. HEADINGS. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement
12.11. NEGOTIATION. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted
fairly and in accordance with its terms and without strict
construction in favor of or against either party
12.12. COUNTERPARTS This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. A facsimile signature shall be binding as an
original signature.
12.13. ASSIGNMENT. Neither party may assign any rights, duties,
obligations or privileges under this Agreement without the
prior written consent of the other party, which consent shall
not be unreasonably withheld; provided however and
notwithstanding anything to the contrary herein, a party may
assign or delegate, without the other party's consent, any of
its rights, duties, obligations and/or privileges under this
Agreement to any person or entity (i) to which all or
substantially all of its assets are sold, (ii) into which it
is merged or (iii) which as a result of a merger or
acquisition becomes the surviving company, except the
non-assigning party may terminate this Agreement on this
assignment on 180 days prior written notice to the assignee,
which notice cannot be given until the effective date of the
assignment.
12.14. AUDIT. Each party shall keep accurate books of account and
records pertaining to its all of its activities and
obligations in regards to this Agreement and revenues billed
and received in relation thereto. No more than once per
calendar quarter, the other party at its sole expense, may
itself and/or by employing an independent Certified Public
Accountant who is not compensated based on the results of the
audit, and who is reasonably acceptable to the other party,
inspect such books of account and records upon reasonable
notice to such party, and at a reasonable time during normal
business hours for the purpose of verifying such other
party's compliance with all of the terms, covenants,
warranties, representations and conditions of this Agreement,
including without limiting the generality of the foregoing,
all fees, royalties and other payments due under this
Agreement. All information obtained pursuant to the audit
shall be Proprietary Information of the audited party.
12.15. PUBLICITY: Neither party shall issue any press release,
public announcement or publicity concerning this Agreement or
any matters arising under this Agreement without the prior
written approval of the other party, except to the extent
required by law or judicial order or decree, or the rules of
any securities exchange or interdealer quotation system on
which its securities are listed or qualified for inclusion.
29
<PAGE> 30
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
12.16. WAIVER OF CONSUMER RIGHTS UNDER DTPA. EACH OF i2 AND viaLink
HEREBY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, SECTIONS 17.41 THROUGH
17.63 INCLUSIVE, OF THE TEXAS BUSINESS AND COMMERCE CODE, A
LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS.
AFTER CONSULTATION WITH LEGAL COUNSEL OF THEIR OWN SELECTION,
EACH OF i2 AND viaLink VOLUNTARILY CONSENTS TO THIS WAIVER.
It is the intent of i2 and viaLink that the rights and
remedies with respect to this transaction shall be governed
by legal principles other than the Texas Deceptive Trade
Practices-Consumer Protection Act. The waiver set forth
herein shall expressly survive the termination of this
Agreement and the transactions contemplated herein. Each of
i2 and viaLink represents and warrants that (i) it is a
business consumer, (ii) it has knowledge and experience in
financial and business matters that enables it to evaluate
the merits and risks of the subject transaction, (iii) it is
not in a significantly disparate bargaining position with
respect to the subject transaction, (iv) it has been
represented by legal counsel of its own selection in
connection with the subject transaction and, (v) its legal
counsel was not directly or indirectly identified, suggested
or selected by any other party, or any agent of any other
party, to this Agreement. Each of i2 and viaLink has waived
its rights pursuant to the Deceptive Trade Practices-Consumer
Protection Act without duress or coercion and fully
acknowledges and understands the effect of the waiver.
12.17. Except as specifically limited by the terms of the Agreement,
the parties agree that the rights and remedies set forth
herein are in addition to and not in lieu of other rights and
remedies which may be available at law or in equity.
12.18. NO SUBCONTRACTORS. Neither party shall use or hire any
subcontractor or other third party to carry out its
obligations or perform any of the terms of this Agreement or
the License, without the prior written consent of viaLink,
which shall not be unreasonably withheld.
12.19. BENEFIT. This Agreement shall be binding upon and shall inure
to the benefit of i2 and viaLink and their respective
successors and permitted assigns.
12.20. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by both Parties.
12.21. SURVIVAL. The following provisions of this Agreement shall in
all events survive its termination or expiration: Sections 5
(to the extent and for the length of time any amounts are
amount thereunder), 6, 7, 8, 10, 11 and 12
30
<PAGE> 31
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
IN WITNESS WHEREOF, the parties hereto have caused this Alliance and Marketing
Agreement to be duly executed and delivered by their respective officers
thereto duly authorized, all as of the day and year first above written.
i2 TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ ROBERT C. DONOHOO
-------------------------------------
Name: Robert C. Donohoo
------------------------------------
Title: Corporate Counsel
-----------------------------------
THE viaLINK COMPANY,
an Oklahoma corporation
By: /s/ J. ANDREW KERNER
--------------------------------------
Name: J. Andrew Kerner
------------------------------------
Title: Chief Financial Officer
-----------------------------------
31
<PAGE> 1
**CONFIDENTIAL**
EXHIBIT 10.2
viaLINK
SOFTWARE LICENSE
This Software License ("License") is entered into as of this 12th day
of October, 1999 by and between The viaLink Company, an Oklahoma corporation
with its principal place of business at 13800 Benson Road, Edmond, Oklahoma
("viaLink") and i2 Technologies, Inc., a Delaware corporation with its principal
place of business at 11701 Luna Road, Dallas, Texas 75234 .
WHEREAS, viaLink and i2 have contemporaneously herewith entered into an
Alliance and Marketing Agreement of even date herewith ("Alliance Agreement");
and
WHEREAS, this License is entered into to pursuant to and in furtherance
of said Alliance Agreement.
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS: When used in this License, the capitalized terms listed
below shall have the following meanings. Any capitalized terms used in
this License that are not otherwise specifically defined in this
License shall have the meanings provided for by the definitions of such
terms as set forth in the Alliance Agreement, which definitions are
herein incorporated by reference as if fully set forth.
1.1. "CODE" shall mean computer programming code including, without
limitation, any programming code, scripts, HTML files,
configuration files, graphic files, database structures or other
software components of the viaLink Software and any Interface
Software, as such terms are hereinafter defined, excluding
therefrom, however, all code created and/or owned by any third
party (including, without limitation, operating systems and other
third party software and/or code which may be required or necessary
for its operation). Any reference to Code in this License shall
include both source and object Code.
1.2. "DERIVATIVE WORK" shall mean a work in any media that is based upon
one or more preexisting works (including, without limitation, the
viaLink Software and any Interface Software, all Code relating
thereto, Enhancements, Maintenance Modifications, and the
Documentation) so as to constitute a revision, modification,
translation, abridgement, condensation, expansion, equivalent, or
any other form into which such preexisting work(s) may be and/or
have been recast, transformed, and/or adapted, regardless of who
creates or participates in creation of such work,
1
<PAGE> 2
**CONFIDENTIAL**
and regardless of the degree of its similarity to or difference
from the preexisting work(s) from which it has been derived. For
purposes hereof, a Derivative Work shall also include any
compilation or group of works that incorporates such a work or
preexisting work.
1.3. "DOCUMENTATION" shall mean user and operator manuals and other
written materials that relate to the viaLink Software and/or any
Interface Software. Documentation shall include written information
concerning Maintenance Modifications and Enhancements thereto.
1.4. "EFFECTIVE DATE" shall mean the Effective Date of the Alliance
Agreement.
1.5. "ENHANCEMENTS" shall mean modifications, additions, or
substitutions, other than Maintenance Modifications, made to Code
or Documentation that accomplish incidental, performance,
structural, functional, or other improvements and/or changes to
such Code.
1.6. "i2" shall only mean i2 Technologies, Inc. and (notwithstanding the
definition of "i2" set forth in the Alliance Agreement) shall not
include any of i2's Affiliates or subcontractors.
1.7. "MAINTENANCE MODIFICATIONS" shall mean modifications, updates, or
revisions made to Code or Documentation that correct errors,
support new releases of operating systems, or support new models of
input-output (I/O) devices with which such Code is designed to
operate.
1.8. "viaLINK SOFTWARE" shall mean the Code of the software identified
by viaLink as its Item Catalog and Chain Pricing software existing
as of the date of delivery to i2 pursuant to this License.
1.9. "INTERFACE SOFTWARE" shall mean such Code that may be developed
pursuant to the terms of this License and/or said Alliance
Agreement in order to facilitate or allow access to the viaLink
Services or viaLink Software.
1.10. "OWNED" means that the party(s) designated in this License as
owning certain Code and/or Documentation shall be deemed the author
and owner of such Code and/or Documentation for all purposes,
including copyright, patent and/or trademark and the holder of all
other rights and privileges pertaining to such ownership interest.
2. DELIVERY. viaLink shall deliver to i2 a copy of the Code of the viaLink
Software, including appropriate Documentation therefore, within thirty
(30) days following execution of this License.
2.1. During the Term of this License, each party shall deliver to the
other any Code for any Interface Software, and Enhancements and/or
Maintenance
2
<PAGE> 3
**CONFIDENTIAL**
Modifications to the viaLink Software and/or any Interface Software
except to the extent that such Interface Software Code,
Enhancements or Maintenance Modifications have been developed
pursuant to a contract with a customer of viaLink or i2, as the
case may be, which restricts or prohibits the delivery of the same
as contemplated herein.
2.2. OWNERSHIP AND CROSS-LICENSING. During the Term of this License:
2.2.1. Any Interface Software and any Enhancements and/or Maintenance
Modifications to the Interface Software and/or viaLink
Software, including all Documentation relating thereto, (1)
developed at viaLink's sole effort or expense or (2) which are
designed or intended to operate within, on, or as part of the
viaLink Services operated, offered and/or maintained by
viaLink in the viaLink Market regardless of whether developed
or paid for by viaLink or i2, or any combination thereof,
shall be Owned by viaLink.
2.2.2. Any Interface Software and any Enhancements and/or Maintenance
Modifications to the Interface Software and/or viaLink
Software, including all Documentation relating thereto (1)
developed at i2's sole effort or expense and (2) which is
designed or intended to operate solely within, on, or as part
of the services and/or software operated, offered and/or
maintained by i2 on i2's or on an i2 customer's equipment
shall be Owned by i2.
2.2.3. Any Interface Software and any Enhancements and/or Maintenance
Modifications to the Interface Software and/or viaLink
Software, including all Documentation relating thereto that
are jointly developed by i2 and viaLink, except to the extent
set forth above, shall be deemed jointly Owned by both i2 and
viaLink, and neither party shall be entitled to assert such
jointly held Ownership against the other and neither party
shall be required to account to the other for any license fees
collected by a party for a subsequent license of such
software.
2.2.4. The Owner of any Code and/or Documentation covered by this
Section 2.2 shall (1) provide to the other party hereto the
source and object Code and Documentation for all such
Interface Software and any Enhancements and/or Maintenance
Modifications to the Interface Software and/or viaLink
Software, and (2) such other party, subject to the terms of
Section 3.2.1, shall be deemed to have a nonexclusive,
unrestricted, assignable, perpetual, world-wide, fully
paid-up, non-revocable license to use, modify, enhance, sell,
sublicense, and otherwise transfer and/or dispose of the same,
subject to the terms and conditions of this License.
3
<PAGE> 4
**CONFIDENTIAL**
2.2.5. Each party shall execute such documents as reasonably required
by the other to carry out the intent of this Section 2.2.
3. LICENSE AND PERMISSIBLE TRANSACTIONS.
3.1. Subject to all of the conditions and restrictions contained in
Section 3.2 and elsewhere in this License, and further subject to
the terms, conditions and restrictions set forth in the Alliance
Agreement, viaLink hereby grants to i2, and i2 hereby accepts, a
limited, nonexclusive, non-transferable, non-assignable, world-wide
license to do only the following:
3.1.1. install and configure the viaLink Software and any Interface
Software on i2's computers and telecommunications equipment;
3.1.2. use the viaLink Software and any such Interface Software as
allowed by the Alliance Agreement;
3.1.3. Make, use, reproduce, copy and display marketing materials in
any media ("Marketing Materials") for purposes of promoting,
marketing and demonstrating the viaLink Software and any
Interface Software; provided, however, that all such Marketing
Materials shall use the viaLink Licensed Trademarks in full
compliance with the terms, conditions and restrictions of the
Alliance Agreement;
3.1.4. Make an archival or backup copy of the viaLink Software and
any Interface Software;
3.1.5. Notwithstanding anything to the contrary in this License or in
the Alliance Agreement, i2 shall be solely responsible for
obtaining at i2's cost: (1) any and all appropriate and
necessary licenses to any and all third party software
required for the operation of the viaLink Software and any
Interface Software licensed hereunder, (2) any and all
hardware required for the operation of said viaLink Software
and any Interface Software, and (3) any and all necessary
telecommunications and/or Internet services and/or connections
required for the operation of the viaLink Software and any
Interface Software.
3.2. LICENSE RESTRICTIONS.
3.2.1. At no time during the Term of this License, and for such
additional period, if any, set forth in the Alliance
Agreement, shall i2 sell, offer to sell, give, transfer,
transmit, license, sublicense or otherwise provide access to
either the viaLink Software or the Interface Software or any
Enhancements or Maintenance Modifications, to any of its
Affiliates or any third party, permit any of its Affiliates or
any third party to have access to either the
4
<PAGE> 5
**CONFIDENTIAL**
viaLink Software or the Interface Software for the purpose of
accomplishing or attempting any of the foregoing, to permit or
offer to permit any of its Affiliates or any third party to
establish, operate, or offer any Public Exchange or Private
Exchange.
3.2.2. Except to the extent authorized in the Alliance Agreement for
private branding purposes, i2 shall not alter, conceal, or
remove any of viaLink's or any third party's copyright,
trademark or other proprietary rights notices, including
without limitation of any viaLink Licensed Trademarks,
appearing on or in any of the viaLink Software and any
Interface Software, Documentation, or Code, Owned by viaLink.
Further, viaLink shall not alter, conceal, or remove any of
i2's or any third party's copyright, trademark or other
proprietary rights notices on or in any of the Interface
Software, Enhancements and/or Maintenance Modifications or
Documentation relating thereto that may be Owned by i2.
3.2.3. At no time during the Term of this License, and for such
additional period, if any, set forth in the Alliance
Agreement, shall i2 transfer, sell, give, convey, assign,
lease, or otherwise transfer or deliver the viaLink Software
and any Interface Software or any copies thereof to any third
party or attempt to do any of the foregoing.
3.2.3.1. Notwithstanding the foregoing, during the Term of this
License, i2 shall have the right to sublicense the
object Code only of the viaLink Software and the
object Code only of any relevant Interface Software,
Enhancements and/or Maintenance Modifications to a
customer of i2 not engaged in commercial activity
within the viaLink Market. In no event, however shall
any such sublicense permitted hereunder expand or
extend, in any way, any of i2's rights and/or
obligations under this License or the Alliance
Agreement, or restrict or limit in any way viaLink's
rights or remedies, including without limitation the
right to payment of all fees which will be due under
the Alliance Agreement in relation to such sublicense
transaction(s) or expand viaLink's obligations under
this License or the Alliance Agreement. In no event
shall any such sublicense relieve i2 of any of its
obligations to viaLink under this License or the
Alliance Agreement.
3.2.4. No further rights to use, copy, sell, print, publish,
advertise, distribute, copy or display the viaLink Software
and any Interface Software, in whole or in part, is granted to
i2 except as expressly provided in this License.
5
<PAGE> 6
**CONFIDENTIAL**
4. FEES. During the Term of this License, including all renewal terms
hereof, i2 agrees to pay the fees and amounts set forth in the Sections
5.2 through 5.4 of the Alliance Agreement.
5. TERM AND TERMINATION.
5.1. TERM. The Initial Term of this License shall commence on the
Effective Date and, unless sooner terminated in accordance with its
terms, shall end on December 31, 2003. It will thereafter
automatically renew on a year to year basis ("Renewal Term") unless
a party, upon at least three (3) months written notice prior to end
of the Initial Term or the then current Renewal Term, as the case
may be, notifies the other party that it will terminate this
License as of the end of such Initial Term or Renewal Term.
5.1.1. if viaLink exercises its right to terminate this License as of
the end of its Initial Term or the then-current Renewal Term
("non-renewal"), then for a period of one (1) year following
the effective date of said non-renewal, i2 shall, subject to
the applicable terms of this License (including, without
limitation, Section 4), nonetheless be entitled to continue to
operate, provide and offer access to its then in operation
Public Exchanges and/or Private Exchanges for its then
existing customers of such Exchanges only (determined as of
the effective date of such non-renewal). Such extended
operations period as described in this section shall not, in
any event, otherwise extend the term of this License or expand
i2's rights hereunder, or alter the terms of the Alliance
Agreement regarding viaLink's rights on or after the effective
date of said non-renewal.
5.2. EXPIRED RIGHTS. Expiration of any intellectual property rights,
including, without limitation, copyrights, trademarks, or patents
related to the subject matter of this License shall not be deemed
to effect a termination of this License. In the event of an
expiration of a right described in this section, such terms herein
as may be affected by such event will remain binding to the extent
permitted by law.
5.3. TERMINATION UPON DEFAULT OF i2. viaLink may terminate this License
(1) if i2 violates any of its obligations under Sections 3, 4, 7, 8
or 9 of this License, in which event such termination shall be
effective immediately, or (2) in the event of any termination
arising from breach by i2 of the Alliance Agreement and i2 fails to
cure such breach, in which event such termination shall be
effective at the same time as the effective date of said Alliance
Agreement's termination, or (3) upon 30 days' written notice for
any other breach by i2 of this License if such breach is not cured
by the end of such 30 day period following receipt of such notice.
6
<PAGE> 7
**CONFIDENTIAL**
5.3.1. if viaLink exercises its right to terminate this License under
Section 5.3 hereof ("termination"), then for a period of
ninety (90) days following the effective date of said
termination, i2 shall, subject to the applicable terms of this
License (including, without limitation, Section 4),
nonetheless be entitled to continue to operate, provide and
offer access to its then in operation Public Exchanges and/or
Private Exchanges for its then existing customers of such
Exchanges only (determined as of the effective date of such
termination). Such extended operations period as described in
this section shall not, in any event, otherwise extend the
term of this License or expand i2's rights hereunder, or alter
the terms of the Alliance Agreement regarding viaLink's rights
on or after the effective date of said termination..
5.4. EFFECT OF TERMINATION ON LICENSE. Upon the expiration or any
termination of this License:
5.4.1. Except to the extend set forth in Section 2, all license
rights granted to i2 in this License shall cease;
5.4.2. Except to the extend set forth in Section 2, i2 shall return
to viaLink all copies of the viaLink Software and any
Interface Software (including all Code and Documents), shall
immediately cease operation thereof and shall delete all of
the viaLink Software and any Interface Software from its
computers and telecommunications equipment.
6. WARRANTIES.
6.1. WARRANTIES OF viaLINK. viaLink represents and warrants as follows::
6.1.1. NON-INFRINGEMENT. That, to viaLink's best knowledge, the
viaLink Software does not infringe or misappropriate any
rights of any third parties.
6.1.2. YEAR-2000. That the viaLink Software will not produce errors
processing date data in connection with the year change from
December 31, 1999 to January 1, 2000 when used with accurate
date data in accordance with the Documentation therefore,
provided all other products (including, without limitation,
other software, firmware, hardware, and operating systems)
used with it properly exchange date data with the viaLink
Software. The viaLink Software will recognize the year 2000 as
a leap year. The foregoing representation refers only to the
viaLink Software as of the date of its delivery by viaLink as
set forth in this License, and further does not constitute a
warranty or extend the terms of any existing warranty.
7
<PAGE> 8
**CONFIDENTIAL**
6.1.3. viaLink warrants that the Code for the viaLink Software as
delivered by viaLink hereunder is the same Code therefore
which is being used by viaLink to provide Item Catalog and
Chain Pricing Services to viaLink's existing production
customers as of the date of such delivery.
6.2. EXCLUSIVITY OF WARRANTIES. THE WARRANTIES SET FORTH IN SECTION 6.1
OF THIS LICENSE ARE THE ONLY WARRANTIES MADE BY viaLINK IN REGARDS
TO THE viaLINK SOFTWARE, AND viaLINK SPECIFICALLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR SAID WARRANTIES SET FORTH IN SECTION
6.1 OF THIS LICENSE, THE viaLINK SOFTWARE IS PROVIDED AND MADE
AVAILABLE TO i2 "AS IS". viaLINK DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED,
IN REGARDS TO THE INTERFACE SOFTWARE.
6.3. LIMITATION OF LIABILITY. The limitations of liability set forth in
Section 10.6 of the Alliance Agreement are incorporated by
reference herein as if fully set forth.
6.3.1. COMPATIBILITY DISCLAIMER. viaLink shall not be liable for any
for any claims, losses, demands, causes of action, damages,
costs or expenses of any kind suffered by i2 or its customers,
whether in contract, in tort, under any warranty theory, in
negligence, or otherwise including, without limitation, any
loss of data or loss of profits, or interruption of business,
which results or may result from the use or attempted use in
conjunction with the viaLink Software and any Interface
Software, by i2 or any of its customers, of any third party
product or any other software or hardware developed at any
time by anyone other than viaLink.
7. WARRANTIES OF i2: In addition to the representations and warranties
made by i2 in the Alliance Agreement, i2 represents and warrants that
it shall at all times follow such security policies and conditions as
viaLink shall from time to time require with regard to the viaLink
Services. THE WARRANTIES SET FORTH IN THIS SECTION 7 OF THIS LICENSE
ARE THE ONLY WARRANTIES MADE BY i2 AND i2 SPECIFICALLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8
<PAGE> 9
**CONFIDENTIAL**
8. CONFIDENTIALITY.
8.1. i2 acknowledges that viaLink claims that the viaLink Software, any
Interface Software, Code, all Derivative Works, Documentation,
business records, methods of doing business, and all other
proprietary information of viaLink, contain and comprise valuable
trade secret, confidential and proprietary information which is the
sole and exclusive property of viaLink and which has commercial
value by virtue of its confidential and/or proprietary status
(hereinafter "Confidential Information"). Further, i2 acknowledges
and agrees that the source Code for the viaLink Software and any
Interface Software, Enhancements and Maintenance Modifications
constitute Confidential Information as herein defined. i2 agrees
that it will not disclose Confidential Information to anyone other
than its own employees, that it will protect the confidentiality of
Confidential Information, and that it will take all appropriate
precautions to prevent any unauthorized use or disclosure of
viaLink Confidential Information. Notwithstanding anything to the
contrary herein, i2's obligations under this Section shall survive
the termination of this License. Confidential Information shall not
include information that (a) is known or available through other
lawful sources, not bound by a confidentiality obligation to
viaLink; (b) is or becomes publicly known through no fault of the
receiving party or its agents; (c) is required to be disclosed by
i2 pursuant to law or court order, provided that i2 provides
viaLink with reasonable prior notice of any such compulsory
disclosure and permits viaLink to object, intervene or appeal such
order; or (d) is developed by i2 independently of the disclosure to
i2 of the same by viaLink.
8.2. The foregoing section 8.1 is in addition to and not in lieu of any
confidentiality obligations arising between the parties hereto in
any other agreement, including, without limitation, the Alliance
Agreement and the Nondisclosure Agreement.
9. INDEMNIFICATION.
9.1. BY viaLINK. In the event any suit, claim, or proceeding is brought
against i2 or one of its customers based on a claim that the
viaLink Software delivered by viaLink pursuant to this License
infringes any existing patent, copyright, or trade secret, viaLink
agrees that it will:
9.1.1. to the extent that the claims or proofs of the suit involve
claims or factual allegations that the viaLink Software
infringes any existing patent, copyright, or trade secrets,
defend the suit at its expense and hold i2 and/or its
customers harmless therefrom, as long as viaLink is promptly
notified in writing and is given complete authority and
information required to defend the suit;
9
<PAGE> 10
**CONFIDENTIAL**
9.1.2. to the extent that any judgment in any such suit is based on
proof that the viaLink Software infringes any existing patent,
copyright, or trade secrets, pay all damages and costs awarded
against i2 and/or its customers related thereto; provided that
viaLink shall not be responsible for any cost, expense, or
compromise made or incurred by i2 and/or its customers without
viaLink's written consent;
9.1.3. allow i2 to participate in the defense of the suit at its own
expense, if it so elects.
9.1.4. Provided however, and notwithstanding anything to the contrary
in this License, viaLink shall have no obligation of indemnity
with regard to any modifications of the viaLink Software of
any kind by i2 or its customers, regardless of whether such
changes were authorized by viaLink.
9.1.5. Further, during the Term of this License, should the viaLink
Software or any part thereof, before any changes, Enhancements
or Maintenance Modifications thereto or Derivative Works
therefrom are made by or on behalf of i2 or any customers,
become, or in viaLink's opinion, be likely to become, the
subject of a claim for infringement, viaLink shall, at its own
expense and option, either procure for i2 the right to
continue using such viaLink Software or replace the same with
non-infringing software or modify the viaLink Software so that
it becomes non-infringing, or require that the viaLink
Software and all Enhancements, Maintenance Modifications or
other Derivative Works be returned and this License
terminated.
9.1.6. After one year after the Term of this License viaLink shall
not have any obligation under this Section 9.1.
10. MISCELLANEOUS.
10.1. NO IMPLIED LICENSES. No right or license shall be implied by
estoppel or otherwise, other than the rights and licenses expressly
granted in this License.
10.2. ASSIGNMENT. Neither party may assign any rights, duties,
obligations or privileges under this License without the prior
written consent of the other party, which consent shall not be
unreasonably withheld; provided however and notwithstanding
anything to the contrary herein, a party may assign or delegate,
without the other party's consent, any of its rights, duties,
obligations and/or privileges under this License to any person or
entity (i) to which all or substantially all of its assets are
sold, (ii) into which it is merged or (iii) which as a result of a
merger or acquisition
10
<PAGE> 11
**CONFIDENTIAL**
becomes the surviving company, except that the non-assigning party
may terminate this License on this assignment on 180 days prior
written notice to the assignee, which notice cannot be given until
the effective date of the assignment.
10.3. ENTIRE AGREEMENT. The parties agree that this License and the
Alliance Agreement, to the extent applicable thereto, constitutes
the complete and exclusive statement of the agreement between them
with regards to the subject matter hereof and supercedes all
proposals, oral or written, and all other communications between
them relating thereto; provided however the Nondisclosure Agreement
remains in full force and effect. The parties agree that to the
extent the terms of the Alliance Agreement are applicable to this
License, in the event of termination or expiration of the Alliance
Agreement, such applicable terms shall survive and be deemed a
material part of this License during the Term of this License.
10.4. AMENDMENTS. This License may only be amended or modified in a
writing signed by both parties hereto.
10.5. GOVERNING LAW. This License shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
10.6. NO WAIVER. The failure of either party to enforce any of the
provisions hereof shall not be construed to be a waiver of the
right of such party thereafter to enforce such provisions.
10.7. ATTORNEY'S FEES AND COSTS. In any action to enforce any rights or
obligations of this License, the prevailing party shall be entitled
to receive its costs and attorneys fees expended in such an action
from the other party.
10.8. RELATIONSHIP OF THE PARTIES. Each party hereto is acting as an
independent contractor and not as agent, partner, or joint venturer
with the other party for any purpose, and neither party shall
represent to others or knowingly conduct itself otherwise. Except
as provided in this License, neither party shall have any right,
power, or authority to act or to create any obligation, express or
implied, on behalf of the other.
10.9. NOTICES. All notices, demands and other communications ("Notices")
pertaining to this License shall be given in the same manner as set
forth in Section 12.4 of the Alliance Agreement.
10.10. REMEDIES. Except as expressly limited herein, the rights and
remedies granted to each party in this License are in addition to
and not in lieu of any other rights and remedies which each party
may have at law or in equity for any breach or default by the other
of this License, including, without limitation, the right to obtain
appropriate injunctive relief without
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**CONFIDENTIAL**
the necessity of bond to enforce this License against any breach of
threatened breach hereof.
10.11. BINDING. This License is binding on and inures to the benefit of
the parties and the successors and permitted assigns of the parties
hereto.
10.12. ACKNOWLEDGMENT OF ALLOCATED RISKS. The parties hereto each
acknowledge that the provisions of this License were negotiated to
reflect an informed, voluntary allocation between them of all risks
(both known and unknown) associated with the transactions
contemplated by this License. The warranties, disclaimers and
limitations of liability in this License are intended to limit and
define the circumstances of liability for each party.
10.13. FORCE MAJEURE. Neither party shall be responsible for failure of
performance due to causes beyond its control, including, without
limitation, accidents, acts of God, labor disputes, or the actions
of third parties or Government agencies.
10.14. CAPTIONS. The captions of the various sections hereof are for
convenience only and are not part of the body or text of this
License, nor are they intended to be used in interpreted the terms
of the License.
10.15. SEVERABILITY. If any provision of this License shall be held
invalid or unenforceable, the remaining provisions of the License
shall not be affected thereby and each remaining provisions shall
be valid and enforceable to the fullest extent permitted by law.
10.16. SUPPORT. i2 and viaLink agree to negotiate in good faith to
determine what support levels will be provided, who will provide
them, what additional fees will be charged therefore, and who will
pay such fee for such support, if any, which may be needed by i2
from viaLink to support the requirements of i2's customers.
10.17. SUBCONTRACTORS: Neither party shall use or hire any subcontractor
or other third party to carry out its obligations or perform any of
the terms of this License, without the prior written consent of the
other, which shall not be unreasonably withheld.
10.18. SURVIVAL. Sections 2.2, 3.2, 4, 5.4, 6, 7, 8 and 9 shall survive
the termination or expiration of this License.
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**CONFIDENTIAL**
IN WITNESS WHEREOF, the parties hereto have caused this Software
License to be duly executed and delivered by their respective officers thereto
duly authorized, all as of the day and year first above written.
i2 TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ ROBERT C. DONOHOO
----------------------------------------
Name: Robert C. Donohoo
--------------------------------------
Title: Corporate Counsel
-------------------------------------
THE viaLINK COMPANY,
an Oklahoma corporation
By: /s/ J. ANDREW KERNER
----------------------------------------
Name: J. Andrew Kerner
--------------------------------------
Title: Chief Financial Officer
-------------------------------------
