<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2000
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE VIALINK COMPANY
(Name of Issuer in Its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 7371 73-1247666
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C>
13800 BENSON ROAD J. ANDREW KERNER
EDMOND, OKLAHOMA 73013-6417 CHIEF FINANCIAL OFFICER
TELEPHONE: (405) 936-2500 THE VIALINK COMPANY
FACSIMILE: (405) 936-2599 13155 NOEL ROAD, SUITE 800
(Address and telephone number of principal DALLAS, TEXAS 75240
executive offices) TELEPHONE: (972) 934-5500
13155 NOEL ROAD, SUITE 800 FACSIMILE: (972) 934-5555
DALLAS, TEXAS 75240 (Name, address and telephone
(Address and telephone number of principal number of agent for service)
place of business or intended place of
business)
</TABLE>
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Copies to:
<TABLE>
<S> <C>
KAREN C. WEHNER
J. MATTHEW LYONS, P.C. AKASH D. SETHI
BROBECK, PHLEGER & HARRISON LLP BROBECK, PHLEGER & HARRISON LLP
301 CONGRESS AVE., SUITE 1200 2001 ROSS AVENUE, SUITE 2500
AUSTIN, TEXAS 78701 DALLAS, TEXAS 75201
TELEPHONE: (512) 477-5495 TELEPHONE: (214) 468-3700
FACSIMILE: (512) 477-5430 FACSIMILE: (214) 468-3704
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Registration Statement is expected to be made pursuant to
Rule 434, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED MAXIMUM
AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
TITLE OF SHARES TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.001
per share...................... 2,778,078(2) $9.6875(3) $26,912,631(3) $7,105(3)
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</TABLE>
(1) In addition to the shares set forth in the table, the amount to be
registered includes an indeterminate number of shares issuable as a result
of stock splits, stock dividends and similar transactions in accordance with
Rule 416.
(2) Includes, on an as converted basis, 1,750,662 shares of our common stock
reserved for issuance pursuant to common stock purchase warrants or options.
(3) Estimated pursuant to Rule 457(c) solely for the purposes of calculating the
amount of the registration fee based on the average high and low prices of
our common stock as reported by the Nasdaq National Market on June 19, 2000.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 21, 2000
PRELIMINARY PROSPECTUS
2,778,078 SHARES
THE VIALINK COMPANY
COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of up to 2,778,078 shares of our common stock by some of our
stockholders named in this prospectus or their respective pledgees, donees,
transferees or other successors in interest that receive these shares as a gift,
partnership distribution or other non-sale related transfer.
The prices at which these stockholders may sell the shares will be
determined by the prevailing market prices for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"VLNK." On June 19, 2000, the closing price for our common stock as reported by
the Nasdaq National Market was $9.875.
AN INVESTMENT IN OUR COMMON STOCK INVOLVES SUBSTANTIAL RISK. SEE THE
SECTIONS ENTITLED "RISK FACTORS" AND "ADDITIONAL FACTORS THAT MAY AFFECT FUTURE
RESULTS" IN THE DOCUMENTS WE FILE WITH THE SECURITIES AND EXCHANGE COMMISSION
THAT ARE INCORPORATED BY REFERENCE IN THIS PROSPECTUS FOR CERTAIN RISKS AND
UNCERTAINTIES THAT YOU SHOULD CONSIDER.
---------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THE DATE OF THIS PROSPECTUS IS , 2000.
<PAGE> 3
No person has been authorized to give any information or to make any
representations other than those contained in this prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized us, any
selling stockholder or by any other person. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that information herein is correct as of any time subsequent to
the date hereof. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the securities covered
by this prospectus, nor does it constitute an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation may not lawfully
be made.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are also
available to you without charge at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13a, 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
- our Annual Report on Form 10-KSB for the year ended December 31, 1999;
- our Quarterly Report on Form 10-QSB for the quarter ended March 31, 2000;
- our Current Reports on Form 8-K dated March 1, 2000, March 22, 2000,
April 7, 2000 and May 31, 2000;
- our Definitive Proxy Statement on Schedule 14A filed with the SEC on
April 24, 2000 for our annual meeting of stockholders on June 5, 2000;
and
- the description of our common stock contained in our registration
statement on Form 8-A filed with the SEC on November 14, 1996, including
any amendments or reports filed for the purpose of updating such
description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
J. Andrew Kerner
Senior Vice President of Finance and Chief Financial Officer
The viaLink Company
13155 Noel Road, Suite 800
Dallas, Texas 75240
(972) 934-5500
You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
1
<PAGE> 4
NOTE REGARDING FORWARD-LOOKING STATEMENTS
The materials incorporated herein by reference contain forward-looking
statements that involve substantial risks and uncertainties. You can identify
these statements by forwarding-looking words such as "may," "will," "expect,"
"intend," "anticipate," "believe," "estimate," "continue" and other similar
words. You should read statements that contain these words carefully because
they discuss our future expectations, make projections of our future results of
operations or of our financial condition or state other "forward-looking"
information. We believe that it is important to communicate our future
expectations to our investors. However, there may be events in the future that
we are not able to accurately predict or control. Our actual results could
differ materially from the expectations we describe in our forward-looking
statements as a result of certain factors, as more fully described in "Risk
Factors," "Additional Factors That May Affect Future Results" and elsewhere in
the documents we file with the SEC that are incorporated herein.
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2
<PAGE> 5
THE COMPANY
We were incorporated in the State of Oklahoma in 1985. We changed our name
to The viaLink Company in 1998 and reincorporated in the State of Delaware in
1999. Our principal executive offices are located at 13800 Benson Road, Edmond,
Oklahoma 73013-6413, and our telephone number is (405) 936-2500.
PLAN OF DISTRIBUTION
We are registering all 2,778,078 shares of our common stock on behalf of
the selling stockholders. 1,846,570 of the shares either originally were issued
by us or will be issued upon exercise of stock purchase warrants issued by us in
connection with two private placements or options issued by us in connection
with a settlement agreement. An additional 931,508 shares were reserved by us
for issuance upon exercise of certain stock purchase warrants to allow for
certain adjustments to the exercise price and the number of shares subject
thereto which may occur beginning one year from issuance based on the market
price of our common stock. The selling stockholders or pledgees, donees,
transferees or other successors in interest selling shares received as a gift,
partnership distribution or other non-sale related transfer after the date of
this prospectus, referred to herein as the "selling stockholders," may sell the
shares from time to time. The selling stockholders will act independently of us
in making decisions with respect to the timing, manner and size of each sale.
The sales may be made on one or more exchanges or in the over-the-counter market
or otherwise, at prices and at terms then prevailing or at prices related to the
then current market price, in negotiated transactions, or at such other price as
the selling stockholders may determine from time to time. The selling
stockholders may effect such transactions by selling the shares to or through
broker-dealers. The shares may be sold by one or more of, or a combination of,
the following:
- a block trade in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus;
- an exchange distribution in accordance with the rules of such exchange;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- in privately negotiated transactions; and
- through the writing of options on the shares or through short sales.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate in the resales.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with selling stockholders. The
selling stockholders also may sell shares short and redeliver the shares to
close out such short positions. The selling stockholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this prospectus. The selling stockholders also
may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
shares so loaned, or upon a default the broker-dealer may sell the pledged
shares pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular broker-dealer might be in excess of customary
commissions and will be in
3
<PAGE> 6
amounts to be negotiated in connection with the sale. Broker-dealers or agents
and any other participating broker-dealers or the selling stockholders may be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act in connection with sales of the shares. Accordingly, any such
commission, discount or concession received by them and any profit on the resale
of the shares purchased by them may be deemed to be underwriting discounts or
commissions under the Securities Act. Because selling stockholders may be deemed
to be "underwriters" within the meaning of Section 2(11) of the Securities Act,
the selling stockholders will be subject to the prospectus delivery requirements
of the Securities Act. In addition, any securities covered by this prospectus
which qualify for sale pursuant to Rule 144 promulgated under the Securities Act
may be sold under Rule 144 rather than pursuant to this prospectus. The selling
stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding
the sale of their securities. There is no underwriter or coordinating broker
acting in connection with the proposed sale of shares by selling stockholders.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the shares may not be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock during a period
beginning one or five business days prior to the commencement of such
distribution. In addition and without limiting the foregoing, each selling
stockholder will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Rule 102, which provisions may limit
the timing of purchases and sales of shares of common stock by the selling
stockholders.
We will file a supplement to this prospectus, if required, pursuant to Rule
424(b) under the Securities Act upon being notified by a selling stockholder
that any material arrangement has been entered into with a broker-dealer for the
sale of shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer. Such supplement will
disclose:
- the name of each such selling stockholder and of the participating
broker-dealer(s);
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
- that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this prospectus;
and
- other facts material to the transaction.
In addition, upon being notified by a selling stockholder that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
prospectus.
We will pay all costs and expenses incurred in connection with the
registration under the Securities Act of the shares. The selling stockholders
will bear all commissions and discounts, if any, attributable to the sales of
the shares.
The selling stockholders are under no obligation to sell all or any of the
shares. The selling stockholders are not restricted as to the prices at which
they may sell their shares and sales of such shares at less than the market
price may depress the market price of the common stock.
Pursuant to their respective registration rights agreements, we have agreed
to indemnify the selling stockholders and their respective directors, officers
and controlling persons against liabilities relating to the
4
<PAGE> 7
registration statement, including liabilities under the Securities Act. Each
selling stockholder has agreed to indemnify us and our directors, officers and
controlling persons against liabilities relating to the information given to us
by that selling stockholder in writing for inclusion in the registration
statement, including liabilities under the Securities Act. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities under the Securities Act.
USE OF PROCEEDS
We will receive the exercise price of the stock purchase warrants and
options, if such warrants and options are exercised, but will receive no
proceeds from the resale of the underlying shares which may be offered hereby.
---------------------
5
<PAGE> 8
SELLING STOCKHOLDERS
The following table presents certain information regarding the beneficial
ownership of our common stock by the selling stockholders. The selling
stockholders may offer to sell the shares covered by this prospectus from time
to time.
<TABLE>
<CAPTION>
SHARES OWNED
AFTER THE OFFERING(2)
SHARES OWNED SHARES ---------------------
PRIOR TO THE OFFERING OFFERED(1) NUMBER PERCENT(3)
--------------------- ---------- ------- -----------
<S> <C> <C> <C> <C>
NAME OF SELLING STOCKHOLDER:
Millennium Partners, L.P..................... 77,463(4) 77,463 0 *
RGC International Investors, LDC............. 2,660,615(5) 2,660,615 0 *
Harvey Barnett............................... 8,000(6) 8,000 0 *
Brad Fishman................................. 16,000(7) 16,000 0 *
Tony Schor................................... 16,000(8) 16,000 0 *
--------- --------- -- --
Total.............................. 2,778,078(9) 2,778,078 0 *
========= ========= == ==
</TABLE>
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* Less than 1%
(1) There is no assurance that the selling shareholders will sell any or all of
these shares.
(2) Assumes that all common stock purchase warrants and options are exercised,
that the selling stockholders will sell all of the shares being offered by
them in this prospectus, that the selling shareholders acquire no additional
shares of our common stock prior to the completion of this offering and that
the shares of our common stock which are not being offered pursuant to this
prospectus are not sold. This registration statement also shall cover any
additional shares of common stock which become issuable in connection with
the shares registered for sale hereby by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
outstanding shares of our common stock.
(3) Percentage of ownership is based on 21,055,918 shares of common stock
outstanding on June 14, 2000. Shares of common stock subject to stock
options or warrants which are currently exercisable or will become
exercisable within 60 days after June 21, 2000 are deemed outstanding for
computing the percentage of the person or group holding such options or
warrants, but are not deemed outstanding for computing the percentage of any
other person or group.
(4) Includes 10,662 shares underlying warrants which are exercisable within 60
days of this prospectus.
(5) Includes 960,615 shares of common stock and 1,700,000 shares of common stock
underlying stock purchase warrants. The number of shares represents an
estimate of the number of shares of common stock to be offered following the
exercise of the warrants. The actual number of shares of common stock
issuable upon exercise of warrants is indeterminate, is subject to
adjustment and could be materially more than such estimated number depending
on factors which cannot be predicted by us at this time, including, among
other factors, the future market price of our common stock. Under the terms
of the warrants, the warrants are exercisable by any holder only to the
extent that the number of shares of common stock issuable pursuant to those
securities, together with the number of shares of common stock owned by that
holder and its affiliates (but not including shares of common stock
underlying unexercised portions of the warrants) would not exceed 4.9% of
the then outstanding common stock as determined in accordance with Section
13(d) of the Exchange Act. Accordingly, the number of shares of common stock
set forth in the table for RGC International Investors exceeds the number of
shares of common stock that RGC International Investors could own
beneficially at any given time through their ownership of warrants. In that
regard, the beneficial ownership of the common stock by RGC International
Investors set forth in the table is not determined in accordance with Rule
13d-3 under the Exchange Act.
(6) Includes 8,000 shares underlying options which are exercisable within 60
days of this prospectus.
(7) Includes 16,000 shares underlying options which are exercisable within 60
days of this prospectus.
6
<PAGE> 9
(8) Includes 16,000 shares underlying options which are exercisable within 60
days of this prospectus.
(9) See notes (4) through (8).
CERTAIN RELATIONSHIPS AMONG THE SELLING STOCKHOLDERS AND VIALINK
We have been informed that Brad Fishman and Tony Schor has or had a direct
or indirect business relationship with Investor Awareness, Inc., a company which
provided investor relations services for us until January 1999. To our
knowledge, there is no other material relationship between either of these
holders and us.
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7
<PAGE> 10
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for us
by Brobeck, Phleger & Harrison LLP, Austin, Texas.
EXPERTS
The financial statements as of December 31, 1997 and 1998 and for each of
the two years in the period ended December 31, 1998 incorporated in this
Prospectus by reference to the Annual Report on Form 10-KSB for the year ended
December 31, 1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
KPMG LLP, independent certified public accountants, have audited our
financial statements as of December 31, 1999 and for the year then ended,
incorporated by reference herein, as set forth in their report which is also
incorporated herein by reference. Our financial statements and schedule have
been incorporated by reference in reliance on their reports given on their
authority as experts in accounting and auditing.
8
<PAGE> 11
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WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE A STATEMENT THAT DIFFERS FROM
WHAT IS IN THIS PROSPECTUS. IF ANY PERSON DOES MAKE A STATEMENT THAT DIFFERS
FROM WHAT IS IN THIS PROSPECTUS, YOU SHOULD NOT RELY ON IT. THIS PROSPECTUS IS
NOT AN OFFER TO SELL, NOR IS IT SEEKING AN OFFER TO BUY, THESE SECURITIES IN ANY
STATE IN WHICH THE OFFER OR SALE IS NOT PERMITTED. THE INFORMATION IN THIS
PROSPECTUS IS COMPLETE AND ACCURATE AS OF ITS DATE, BUT THE INFORMATION MAY
CHANGE AFTER THAT DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find Additional
Information......................... 1
Note Regarding Forward-Looking
Statements.......................... 2
The Company........................... 3
Plan of Distribution.................. 3
Use of Proceeds....................... 5
Selling Stockholders.................. 6
Legal Matters......................... 8
Experts............................... 8
</TABLE>
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THE VIALINK COMPANY
2,778,078 SHARES
OF COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 2000
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<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fees...................................... $ 7,105.00
*Legal Fees................................................. 25,000.00
*Accounting Fees and Expenses............................... 5,000.00
*Printing Fees.............................................. 5,000.00
*Transfer Agent's Fees and Costs of Certificates............ 2,000.00
*Miscellaneous.............................................. 10,000.00
----------
Total............................................. $54,105.00
==========
</TABLE>
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* Estimated
ITEM 15. 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 our director, officer, employee or agent may and, in certain cases,
must be indemnified by us 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 in our not opposed to our 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 us, 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.
Article VII of our Certificate of Incorporation provides that no director
shall be liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by the DGCL.
We have entered into Indemnification Agreements with the each of our
directors and officers. Pursuant to our agreements, we will be obligated, to the
extent permitted by applicable law, to indemnify our 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 our directors or officers or assumed certain
responsibilities at our direction. We also have purchased directors and officers
liability insurance in order to limit our exposure to liability of
indemnification of directors and officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.1(1) -- Securities Purchase Agreement dated as of March 22, 2000,
by and among the Registrant and the Purchasers listed on
Schedule I thereto
4.2(1) -- Common Stock Purchase Warrant dated March 24, 2000 by the
Registrant in favor of Millennium Partners, L.P.
4.3(1) -- Registration Rights Agreement dated as of March 22, 2000
by and between the Registrant and Millennium Partners,
L.P.
</TABLE>
II-1
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.4(2) -- Securities Purchase Agreement dated as of May 31, 2000 by
and between the Registrant and RGC International
Investors, LDC
4.5(2) -- Common Stock Warrant dated May 31, 2000, by the
Registrant in favor of RGC International Investors, LDC
4.6(2) -- Registration Rights Agreement dated as of May 31, 2000 by
and between the Registrant and RGC International, Inc.
4.7 -- Settlement Agreement dated as of June 15, 2000, by and
between the Registrant, Investor Awareness, Inc., Tony
Schor, Brad Fishman and Harvey Barnett.
5.1 -- Opinion of Brobeck, Phleger & Harrison LLP, regarding the
legality of the securities covered by this registration
statement.
23.1 -- Consent of KPMG LLP
23.2 -- Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Brobeck, Phleger & Harrison LLP (included in
its opinion filed as Exhibit 5.1)
24.1 -- Power of Attorney (included on the signature page to this
Registration Statement)
</TABLE>
---------------
(1) Incorporated herein by reference to the Registrant's Current Report of Form
8-K dated March 22, 2000.
(2) Incorporated herein by reference to the Registrant's Current Report on Form
8-K dated May 31, 2000.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales of securities
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or together,
represent a fundamental change in the information in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the commission pursuant
to rule 424(b) if, in the aggregate, the charges in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs, (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the
II-2
<PAGE> 14
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
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.
Insofar as indemnification for liabilities arising under the Securities
Act, may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Registrant of expenses incurred or paid
by a director, officer or controlling person of 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,
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 Securities Act and will be governed by the final adjudication
of such issue.
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by Registrant under Rule 424(b)(1), or (4), or
497(h) under the Securities Act shall be deemed to be a part of this
Registration Statement as of the time the SEC declared it effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus as a
new registration statement for the securities offered in the registration
statement, and that the offering of such securities at that time by the
initial bona fide offering of those securities.
II-3
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Edmond, State of Oklahoma, on June 21, 2000.
THE VIALINK COMPANY
By: /s/ LEWIS B. KILBOURNE
----------------------------------
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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE ------------------------------------------- TITLE -------------------------- DATE --------
<C> <S> <C>
/s/ LEWIS B. KILBOURNE Chief Executive Officer and June 15, 2000
----------------------------------------------------- Chairman of the Board
Lewis B. Kilbourne (principal executive officer)
/s/ ROBERT N. BAKER President, Chief Operating June 21, 2000
----------------------------------------------------- Officer and Director
Robert N. Baker
/s/ J. ANDREW KERNER Senior Vice President of June 15, 2000
----------------------------------------------------- Finance, Chief Financial
J. Andrew Kerner Officer (principal financial
and accounting officer)
Director June , 2000
-----------------------------------------------------
Jimmy M. Wright
/s/ SUE A. HALE Director June 21, 2000
-----------------------------------------------------
Sue A. Hale
Director June , 2000
-----------------------------------------------------
Warren D. Jones
</TABLE>
II-4
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<C> <S>
4.1(1) -- Securities Purchase Agreement dated as of March 22, 2000,
by and among the Registrant and the Purchasers listed on
Schedule I thereto
4.2(1) -- Common Stock Purchase Warrant dated March 24, 2000 by the
Registrant in favor of Millennium Partners, L.P.
4.3(1) -- Registration Rights Agreement dated as of March 22, 2000
by and between the Registrant and Millennium Partners,
L.P.
4.4(2) -- Securities Purchase Agreement dated as of May 31, 2000 by
and between the Registrant and RGC International
Investors, LDC
4.5(2) -- Common Stock Warrant dated May 31, 2000, by the
Registrant in favor of RGC International Investors, LDC
4.6(2) -- Registration Rights Agreement dated as of May 31, 2000 by
and between the Registrant and RGC International, Inc.
4.7 -- Settlement Agreement dated as of June 15, 2000, by and
between the Registrant, Investor Awareness, Inc., Tony
Schor, Brad Fishman and Harvey Barnett.
5.1 -- Opinion of Brobeck, Phleger & Harrison LLP, regarding the
legality of the securities covered by this registration
statement.
23.1 -- Consent of KPMG LLP
23.2 -- Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Brobeck, Phleger & Harrison LLP (included in
its opinion filed as Exhibit 5.1)
24.1 -- Power of Attorney (included on the signature page to this
Registration Statement)
</TABLE>
---------------
(1) Incorporated herein by reference to the Registrant's Current Report of Form
8-K dated March 22, 2000.
(2) Incorporated herein by reference to the Registrant's Current Report on Form
8-K dated May 31, 2000.
