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As filed with the Securities and Exchange Commission on July 13, 2000
Registration No. 333-_____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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THE VIALINK COMPANY
(Exact name of issuer as specified in its charter)
DELAWARE 73-1247666
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
13155 NOEL ROAD, SUITE 800
DALLAS, TEXAS 75240
(Address of principal executive offices) (Zip Code)
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THE VIALINK COMPANY
1999 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plan)
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J. ANDREW KERNER
CHIEF FINANCIAL OFFICER
THE viaLINK COMPANY
13155 NOEL ROAD, SUITE 800
DALLAS, TEXAS 75240
(Name and address of agent for service)
(972) 934-5500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount to be Maximum Offering Maximum Aggregate Amount of
Title of Securities to be Registered Registered(1) Price per Share(2) Offering Price(2) Registration Fee
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<S> <C>
1999 Stock Option/ Stock Issuance Plan
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Common Stock, $0.001 par value 5,566,880 $ 9.875 $ 54,972,940 $ 14,513
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(1) This Registration Statement shall also cover any additional shares of
the Registrant's Common Stock which become issuable under the 1999
Stock Option/Stock Issuance Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without the Registrant's receipt of consideration which results in an
increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of the Registrant's Common
Stock on July 11, 2000, as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The viaLink Company (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999 filed with the SEC on March 21, 2000;
(b) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 2000 filed with the SEC on May 12, 2000;
(c) The Registrant's Current Reports on Form 8-K dated March 1, 2000;
March 22, 2000; April 7, 2000; and May 31, 2000.
(d) The Registrant's Registration Statement on Forms 8-A filed with
the SEC on November 14, 1996 in which there is described the
terms, rights and provisions applicable to the Registrant's
outstanding Common Stock, including any amendments or reports
filed for the purpose of updating such description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Capital Stock
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in effect, that any person made a party to any action by reason of
the fact that he is or was a director, officer, employee or agent of the
Registrant may and, in certain cases, must be indemnified by the Registrant
against, in the case of a non-derivative action, judgments, fines, amounts paid
in settlement and reasonable expenses (including attorneys' fees) incurred by
him as a result of such action, and in the case of a derivative action, against
expenses (including attorneys' fees), if in either type of action he acted in
good faith and in a manner he reasonably believed to be not opposed to the
Registrant's best interests. This indemnification does not apply, in a
derivative action, to matters as to which it is adjudged that the director,
officer, employee or agent is liable to the Registrant, unless upon court order
it is determined that, despite such adjudication of liability, but in view of
all the circumstances of the case, he is fairly and reasonably entitled to
indemnity for expenses, and, in a non-derivative action, to any criminal
proceeding in which such person had reasonable cause to believe his conduct was
unlawful.
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Article VII of the Registrant's Certificate of Incorporation, as
amended, provides that no director shall be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by the DGCL.
The Registrant has entered into Indemnification Agreements with
the each of its directors and officers. Pursuant to these agreements, the
Registrant will be obligated, to the extent permitted by applicable law, to
indemnify its directors and officers against all expenses, judgments, fines and
penalties incurred in connection with the defense or settlement of any actions
brought against them by reason of the fact that they were directors or officers
of the Registrant or assumed certain responsibilities at the Registrant's
direction. The Registrant also has purchased directors and officers liability
insurance in order to limit its exposure to liability of indemnification of
directors and officers.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining Rights of Shareholders. Reference is
made to Registrant's Registration
Statement on Form 8-A, as amended, and the exhibits
thereto, which are incorporated herein by
reference pursuant to Item 3(d) of this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Auditors.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 The viaLink Company 1999 Stock Option/Stock Issuance Plan.
99.2 Amendment No. 1 to The viaLink Company 1999 Stock
Option/Stock Issuance Plan.
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement; (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"),
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate
represent a fundamental change in the information set forth in this
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii)
shall not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into the registration statement; (2) that for the
purpose of determining any liability under the 1933 Act each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold upon the termination of the
1999 Stock Option/Stock Issuance Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that
is incorporated by reference into this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6
above, or otherwise, the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the 1933 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on this 13th day of
July, 2000.
THE VIALINK COMPANY
By /s/ LEWIS B. KILBOURNE
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Lewis B. Kilbourne
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Lewis B. Kilbourne and J. Andrew Kerner,
his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to sign any registration
statement for the same offering covered by this registration statement that is
to be effective upon filing pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, and all post-effective amendments thereto, and to file
the same, with all exhibits thereto and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his or their substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ LEWIS B. KILBOURNE Chief Executive Officer and Chairman of the July 13, 2000
---------------------------------------- Board
Lewis B. Kilbourne
/s/ ROBERT N. BAKER President, Chief Operating Officer and Director July 13, 2000
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Robert N. Baker
/s/ J. ANDREW KERNER Senior Vice President of Finance and Chief July 13, 2000
---------------------------------------- Financial Officer (principal financial and
J. Andrew Kerner accounting officer)
/s/ JIMMY M. WRIGHT Director July 12, 2000
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Jimmy M. Wright
/s/ SUE A. HALE Director July 13, 2000
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Sue A. Hale
/s/ WARREN D. JONES Director July 12, 2000
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Warren D. Jones
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4 Instruments Defining Rights of Shareholders. Reference is
made to Registrant's Registration
Statement on Form 8-A, as amended, and the exhibits
thereto, which are incorporated herein by
reference pursuant to Item 3(d) of this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Auditors.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 The viaLink Company 1999 Stock Option/Stock Issuance Plan.
99.2 Amendment No. 1 to The viaLink Company 1999 Stock
Option/Stock Issuance Plan.
