<PAGE> 1
-------------------------------
OMB APPROVAL
-------------------------------
OMB Number: 3235-0056
Expires: January 31, 2002
Estimated average burden
hours per response:..........7
-------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
The viaLink Company
-------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 73-1247666
-----------------------------------------------------------------------------------------------------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
13800 Benson Road, Edmond, Oklahoma 73013
--------------------------------------------------------------------------------------------------------------- --------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
--------------------------------------- -------------------------------------
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. |X|
Securities Act registration statement file number to which this form
relates: ________________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.001 per share
--------------------------------------------------------------------------------
(Title of Class)
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
We are amending our Registration Statement on Form 8-A for our common
stock filed with the SEC on November 14, 1996, as amended by Amendment No. 1 to
the Registration Statement on Form 8-A/A filed with the SEC on November 17,
1999.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Our authorized capital stock consists of 150,000,000 shares of common
stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par
value $0.001 per share. The rights and preferences of the authorized preferred
stock may be designated from time to time by our board of directors. The
following summary is qualified by reference to our certificate of incorporation,
as amended, and our bylaws, both of which have been filed as exhibits to this
registration statement.
COMMON STOCK
Holders of our common stock are entitled to one vote per share on all
matters to be voted on by the stockholders. Holders of common stock are not
entitled to cumulated voting rights with respect to the election of directors,
and as a result, minority stockholders will not be able to elect directors on
the basis of their votes alone. Subject to limitations under Delaware law and
preferences that may apply to any outstanding shares of preferred stock, holders
of common stock are entitled to receive ratably such dividends or other
distribution, if any, as may be declared by our board of directors out of funds
legally available therefore. In the event of our liquidation, dissolution or
winding up, holders of common stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to the liquidation preference of
any outstanding preferred stock. The common stock has no preemptive, conversion
or other rights to subscribe for additional securities. There are no redemption
or sinking fund provisions applicable to the common stock. All outstanding
shares of common stock are validly issued, fully paid and nonassessable. The
rights, preferences and privileges of holders of common stock are subject to,
and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock that we may designated and issue and the future.
PREFERRED STOCK
Our board of directors has the authority, without further action by the
stockholders, to issue up to 10,000,000 shares of preferred stock in one or more
series, to fix rights, preferences, privileges and restrictions of the
authorized preferred stock and to issue shares of each such series. The issuance
of preferred stock could have the effect of restricting dividends on the common
stock, diluting the voting power for the common stock, impairing the liquidation
rights of the common stock or delaying or preventing our change in control
without further action by the stockholders. At present, we have no plans to
issue any shares of preferred stock.
We have agreed with the securities regulators of certain states that we
will not offer preferred stock to persons considered to be promoters of us
except on the same terms as offered to all other existing stockholders or new
stockholders, or unless the issuance of preferred stock is approved by the
majority of our disinterested, independent directors who have access, at our
expense, to legal counsel.
REGISTRATION RIGHTS
We have granted registration rights to the holders of underwriter
warrants and warrant underwriter warrants which we issued to the underwriters of
our initial public offering at the time of the offering and the shares of our
common stock issuable upon exercise of those warrants. Until November 20, 2000,
the holders of at least 50% of these registrable securities which are then
outstanding may request registration under the Securities Act of all or any part
of their registrable securities. The holders of these registrable securities are
entitled to request one such demand registration, the expenses of which shall be
paid for by us. In addition, the holders of these registrable securities also
have piggyback registration rights. In June 1999, we registered for resale
720,000 shares of common stock underlying these underwriter warrants and warrant
underwriter warrants, and we are obligated to keep the
<PAGE> 3
registration statement registering these shares effective at least nine
consecutive months or such longer period permitted by the Securities Act. As of
June 15, 2000, warrants to purchase 43,000 shares of our common stock were
outstanding.
We have also granted registration rights to some holders of options to
purchase 1,440,000 shares of our common stock. We originally issued these
options to John Simonelli and Larry E. Howell on October 15, 1996 in connection
with our acquisition of Vantage Capital Resources, Inc. If we propose to
register any of our securities under the Securities Act (other than by filing a
registration statement on Form S-8 or Form S-4) at any time, the option holders
may request to have the securities they hold included in such registration. Upon
this request, we shall use our best efforts, providing that it is permissible
under the Securities Act to register these securities on such registration
statement, to include the option holders' securities in the proposed
registration statement. However, we may determine for any reason, after
consultation with the option holders who have requested to have their securities
included in the registration statement, not to register or to delay the
registration of the option holders securities. In August 1999, we registered for
resale the 1,440,000 shares of common stock issuable upon the exercise of these
options, and we were obligated to keep the registration statement registering
these shares for resale effective until February 2000. As of June 15, 2000,
options to purchase 360,000 shares of our common stock were outstanding.
In connection with an agreement with Hewlett-Packard and the $6.0
million subordinated secured convertible promissory note issued to it, we have
granted registration rights to Hewlett-Packard with respect to shares of our
common stock issuable upon conversion of the note and with respect to the shares
of our common stock purchased by it and shares of our common stock issuable upon
exercise of a warrant we issued to it in connection with a private placement,
such registration to be effective for at least 180 days. Hewlett-Packard may
request that these securities be registered in up to four demand registrations;
however, only one of these demand registrations may be pursuant to a
registration statement on Form S-1, Form SB-2 or other similar forms of
registration statements. We have also granted Hewlett-Packard unlimited
piggyback registration rights. Both the demand and piggyback registration rights
contain cut-back provisions under which we may not have to register the shares
requested by Hewlett-Packard if such registration, in the opinion of the
underwriters of such offering, would be imprudent.
In connection with an agreement with Ernst & Young, we have granted
registration rights to Ernst & Young with respect to 1,000,000 shares of our
common stock we issued to Ernst & Young upon the exercise of a warrant we issued
to it and any shares of our common stock we issue to it as compensation under a
master services agreement. As of June 15, 2000, we had issued an additional
115,356 shares of our common stock to Ernst & Young in accordance with this
master services agreement. Ernst & Young may request that these securities be
registered in up to five demand registrations, however only two of these demand
registrations may be pursuant to a registration statement on Form S-1, Form SB-2
or other similar forms of registration statements. We have also granted Ernst &
Young unlimited piggyback registration rights. Both the demand and piggyback
registration rights contain cut-back provisions under which we may not have to
register the shares requested by Ernst & Young if such registration, in the
opinion of the underwriters of such offering, would be imprudent. In August
1999, we registered for resale 250,000 shares of common stock we issued to Ernst
& Young upon exercise of the warrant, and we are obligated to keep the
registration statement registering these shares for resale effective until all
of the shares have been sold pursuant to such registration statement.
In connection with various agreements with i2 Technologies and the
common stock and warrants issued thereunder, we have granted registration rights
to i2 Technologies with respect to shares of our common stock purchased by it
and shares of our common stock issuable upon the exercise of warrants we issued
to it. i2 Technologies may request that these securities be registered on a
registration statement on Form S-1, Form SB-2 or other similar forms or
registration statements pursuant to a demand registration right which we have
granted them, and we are obligated to keep such registration effective until the
earlier to occur of the sale of all of the shares pursuant to such registration
statement or 180 days. We have also granted to i2 Technologies unlimited
piggyback registration rights, and we are obligated to keep any such
registration effective until all of the shares have been sold pursuant to such
registration statement. We may delay a request to register these securities
pursuant to the demand registration right for a period not to exceed 60 days in
the case of certain limited circumstances which, in the opinion of our board of
directors, would make the registration of the securities at such time
unadvisable. The piggyback registration rights contain cutback provisions under
which we may not have to register the shares requested by i2 Technologies if
such registration, in the opinion of the underwriters of such offering, would be
imprudent.
<PAGE> 4
In connection with an agreement with Millennium Partners, we are
required to register all of the shares of our common stock issued to it and all
of the shares of our common stock issuable upon exercise of a warrant we issued
to Millennium Partners upon the later to occur of 120 days following the close
of the private placement with it. We have also granted Millennium Partners
unlimited piggyback registration rights. We may delay a request to register
these securities pursuant to the demand registration right for a period not
exceed 60 days in certain limited circumstances which, in the opinion of our
board of directors, would make the registration of the securities at such time
unadvisable. The piggyback registration rights contain cutback provisions under
which we may not have to register the shares requested by Millennium Partners if
such registration, in the opinion of the underwriters of such offering, would be
imprudent. We must keep any registration statement effective for at least 180
days.
In connection with an agreement with AGE Investments, Inc., we have
granted AGE unlimited registration rights on or after June 20, 2000 but prior to
March 22, 2005 with respect to the shares of our common stock issuable upon
exercise of the warrants we issued to AGE Investments, such registration to
remain effective until all of shares have been sold pursuant to such
registration statement. The piggyback registration rights contain cutback
provisions under which we may not have to register the shares requested by AGE
of such registration, in the opinion of the underwriters of such offering, would
be imprudent.
In connection with an agreement with RGC International Investors, LDC,
we are required to register all of the shares of our common stock issued to RGC
and 1,700,000 shares of our common stock reserved for issuance upon exercise of
a warrant we issued to RGC within 30 days following the close of the private
placement with it. We have also granted RGC unlimited piggyback registration
rights. The piggyback registration rights contain cutback provisions under which
we may not register the shares requested by RGC if such registration, in the
opinion of the underwriter's of such offering, would be imprudent. We are
obligated to keep any registration statement effective until the earlier of the
date on which all of the shares are sold pursuant to such registration statement
and the date on which all of the shares may be immediately sold to the public
without restriction.
In connection with a settlement agreement, we have granted certain
holders of options to purchase 20,000 shares of our common stock the right to
request the registration of these securities on Form S-3 or similar short form
registration. We are obligated to use our reasonable best efforts to keep this
registration effective until the later to occur of the sale of all of the shares
pursuant to the registration statement or 90 days. Upon a good faith
determination, we may delay the request to register these securities until we
believe it would be practicable to effect the registration.
ANTI-TAKEOVER EFFECTS
Our certificate of incorporation, our bylaws and certain provisions of
Delaware law could have the effect of delaying or preventing a third party from
acquiring us, even if the acquisition would benefit our stockholders. These
provisions are intended to enhance the likelihood of continuity and stability in
the composition of our board of directors and in the policies formulated by the
board of directors and to discourage certain types of transactions that may
involve an actual or threatened change of control of us. These provisions are
designed to reduce our vulnerability to an unsolicited proposal for a takeover
that does not contemplate the acquisition of all of our outstanding shares, or
an unsolicited proposal for the restructuring or sale of all or part of us.
Delaware anti-takeover statute. We are subject to the provisions of
Section 203 of the Delaware General Corporation Law, an anti-takeover law.
Subject to certain exceptions, the statute prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
o prior to such date, the board of directors of the corporation
approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder;
o upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding, for purposes of determining the number of shares
outstanding, those shares owned (1) by persons who are
directors and also officers and (2) by employee stock plans in
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tender or exchange offer; or
<PAGE> 5
o on or after such date, the business combination is approved by
the board of directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66-2/3% of the outstanding voting
stock which is not owned by the interested stockholder.
For purposes of Section 203, a "business combination" includes a
merger, asset sale or other transaction resulting in a financial benefit to the
interested stockholder, and an "interested stockholder" is a person who,
together with affiliates and associates, owns, or within three years prior to
the date of determination whether the person is an "interested stockholder," did
own, 15% or more of the corporation's voting stock.
In addition, provisions of our certificate of incorporation and bylaws
may also have an anti-takeover effect. These provisions may delay, defer or
prevent a tender offer or takeover attempt of our company that a stockholder
might consider in his or her best interest, including attempts that might result
in a premium over the market price for the shares held by our stockholders. The
following summarizes these provisions.
Classified board of directors. Our certificate of incorporation
provides that our board of directors is to be divided into three classes of
directors, as nearly equal in size as is practicable, serving staggered
three-year terms. As a result, approximately one-third of the board of directors
are elected each year. These provisions, when coupled with the provisions of our
certificate of incorporation and bylaws authorizing our board of directors to
fill vacant directorships or increase the size of our board, may deter a
stockholder from removing incumbent directors and simultaneously gaining control
of the board of directors. Our bylaws also provide that directors may only be
removed by the shareholders for cause by the affirmative vote of the holders of
not less than a majority of the total voting power of all outstanding securities
of viaLink then entitled to vote in the election of directors, voting together
as a single class.
Stockholder action; special meeting of stockholders. Our certificate of
incorporation eliminated the ability of stockholders to act by written consent.
Our bylaws provide that special meetings of our stockholders may be called only
a majority of our board of directors.
Advance notice requirements for stockholder proposals and director
nominations. Our bylaws provide that stockholders seeking to bring business
before an annual meeting of stockholders, or to nominate candidates for election
as directors at an annual meeting of stockholders, must provide us with timely
written notice of their proposal. To be timely, a stockholder's notice must be
delivered to or mailed and received at our principal executive offices not less
than 120 days before the date we released the notice of annual meeting to
stockholder in connection with the previous year's annual meeting. If, however,
no meeting was held in the prior year or the date of the annual meeting has been
changed by more than 30 days from the date contemplated in the notice of annual
meeting, notice by the stockholder, in order to be timely, must be received a
reasonable time before we release the notice of annual meeting to stockholders.
Our bylaws also specify certain requirements as to the form and content of a
stockholder's notice. These provisions may preclude stockholders from bringing
maters before an annual meeting of stockholders or from making nominations for
directors at an annual meeting of stockholders.
Authorized but unissued shares. Our authorized but unissued shares of
common stock and preferred stock are available for our board to issue without
stockholder approval. We may use these additional shares for a variety of
corporate purposes, including future public offerings to raise additional
capital, corporate acquisitions and employee benefit plans. The existence of our
authorized but unissued shares of common stock and preferred stock could render
it more difficult or discourage an attempt to obtain control of our company be
means of proxy context, tender offer, merger or other transaction.
Supermajority vote provisions. Delaware law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation of bylaws, unless
a corporation's certificate of incorporation or bylaws, as the case may be,
requires a greater percentage. Our certificate of incorporation imposes
supermajority vote requirements in connection with the amendment of certain
provisions of our certificate of incorporation, including the provisions
relating to the classified board of directors and action by written consent of
stockholders.
Indemnification. Our certificate of incorporation and bylaws require us
to indemnify our directors and officers to the fullest extent permitted by
Delaware law. In addition, our charter limits the personal liability of
<PAGE> 6
our board members for breaches by the directors of their fiduciary
duties to the fullest extent permitted under Delaware law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar of out common stock is UMB
Bank, N.A. and its address is 928 Grand Boulevard, P.O. Box 410064,
Kansas City, Missouri 64141.
NASDAQ NATIONAL MARKET LISTING
Our common stock is traded on the Nasdaq National Market under
the trading symbol "VLNK."
ITEM 2. EXHIBITS.
1. Certificate of Incorporation of The viaLink Company (filed as Appendix
E to Registrant's Definitive 14-A Proxy Statement dated April 19, 1999
(the "1999 Proxy Statement") and incorporated herein by reference)
2. Bylaws of The viaLink Company (filed as Appendix F to the 1999 Proxy
Statement and incorporated herein by reference)
3. Specimen Common Stock Certificate
4. Certificate of Amendment to Certificate of Incorporation of The viaLink
Company (filed as Appendix A to Registrant's Definitive Proxy Statement
dated April 24, 2000 and incorporated herein by reference).
<PAGE> 7
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
(Registrant) The viaLink Company
---------------------------------------------
Date: June 21, 2000
---------------------------------------------
By: /s/ J. ANDREW KERNER
---------------------------------------------
J. Andrew Kerner
Senior Vice President of Finance
and Chief Financial Officer
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
1. Certificate of Incorporation of The viaLink Company (filed as Appendix
E to Registrant's Definitive 14-A Proxy Statement dated April 19, 1999
(the "1999 Proxy Statement") and incorporated herein by reference)
2. Bylaws of The viaLink Company (filed as Appendix F to the 1999 Proxy
Statement and incorporated herein by reference)
3. Specimen Common Stock Certificate
4. Certificate of Amendment to Certificate of Incorporation of The viaLink
Company (filed as Appendix A to Registrant's Definitive Proxy Statement
dated April 24, 2000 and incorporated herein by reference).
</TABLE>
