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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 22, 2000
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THE VIALINK COMPANY
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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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, Suite 100, Edmond, Oklahoma 73013
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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.
On March 22, 2000, we entered into a Securities Purchase Agreement
pursuant to which i2 Technologies, Inc., Hewlett-Packard Company and Millennium
Partners, L.P., paid us an aggregate of $6.0 million in consideration for (1)
100,200 shares of our common stock and (2) warrants to purchase 15,030 shares of
our common stock at exercise price of $83.83 per share. The warrants can be
exercised at any time on or before March 24, 2003. The purchasers will receive
the benefit of the proposed stock split of our common stock to be effected as of
March 28, 2000 in the form of a stock dividend paid to the stockholders of
record on March 17, 2000.
We also amended our Shareholder Agreement with Hewlett-Packard dated
February 4, 1999 to provide certain demand and piggyback registration rights
with respect to the shares of common stock purchased by them and the shares of
common stock issuable upon exercise of the warrants issued to them in connection
with the Securities Purchase Agreement.
In addition, we amended our Registration Rights Agreement with i2
Technologies dated October 12, 1999 to provide certain demand and piggyback
registration rights with respect to the shares of common stock purchased by them
and the shares of common stock issuable upon exercise of the warrants issued to
them in connection with the Securities Purchase Agreement.
In connection with the Securities Purchase Agreement, we also granted
Millennium Partners certain automatic and piggyback registration rights pursuant
to a Registration Rights Agreement.
Copies of the Securities Purchase Agreement, the Common Stock Purchase
Warrants issued to each of Hewlett-Packard, i2 Technologies and Millennium
Partners, Amendment No. 1 to Shareholder Agreement with Hewlett-Packard,
Amendment No. 1 to Registration Rights Agreement with i2 Technologies and the
Registration Rights Agreement with Millennium Partners are attached hereto as
Exhibits 4.1, 4.2, 4.3. 4.4, 4.5 and 4.6, respectively. The Shareholder
Agreement with Hewlett-Packard is incorporated herein by reference to our
Current Report on Form 8-K dated February 4, 1999. The Registration Rights
Agreement with i2 Technologies is incorporated herein by reference to our
Current Report on Form 8-K dated October 12, 1999.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4.1 Securities Purchase Agreement dated as of March 22, 2000,
by and among The viaLink Company and the Purchasers listed
on Schedule I thereto.
4.2 Common Stock Purchase Warrant dated March 24, 2000 by The
viaLink Company in favor of Hewlett-Packard Company.
4.3 Common Stock Purchase Warrant dated March 24, 2000 by The
viaLink Company in favor of i2 Technologies, Inc.
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4.4 Common Stock Purchase Warrant dated March 24, 2000 by
The viaLink Company in favor of Millennium Partners,
L.P.
4.5 Amendment No. 1 to Shareholder Agreement dated as of
March 22, 2000 by and among The viaLink Company and
Hewlett-Packard Company.
4.6 Amendment No. 1 to Registration Rights Agreement dated
as of March 22, 2000 by and among The viaLink Company
and i2 Technologies, Inc.
4.7 Registration Rights Agreement dated as of March 22, 2000
by and between The viaLink Company and Millennium
Partners, L.P.
4.8(1) Shareholder Agreement dated as of February 4, 1999, by
and between The viaLink Company and Hewlett-Packard
Company. 4.9(2) Registration Rights Agreement dated
October 12, 1999 by and between The viaLink Company and
i2 Technologies, Inc.
4.9(2) Registration Rights Agreement dated October 12, 1999 by
and between The viaLink Company and i2 Technologies,
Inc.
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(1) Incorporated herein by reference to our Current Report on Form 8-K dated
February 4, 1999.
(2) Incorporated herein by reference to our Current Report on Form 8-K dated
October 12, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE VIALINK COMPANY
Dated: March 28, 2000 By: /s/ J. ANDREW KERNER
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J. Andrew Kerner
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Securities Purchase Agreement dated as of March 22,
2000, by and among The viaLink Company and the
Purchasers listed on Schedule I thereto.
4.2 Common Stock Purchase Warrant dated March 24, 2000 by
The viaLink Company in favor of Hewlett-Packard
Company.
4.3 Common Stock Purchase Warrant dated March 24, 2000 by
The viaLink Company in favor of i2 Technologies, Inc.
4.4 Common Stock Purchase Warrant dated March 24, 2000 by
The viaLink Company in favor of Millennium Partners,
L.P.
4.5 Amendment No. 1 to Shareholder Agreement dated as of
March 22, 2000 by and among The viaLink Company and
Hewlett-Packard Company.
4.6 Amendment No. 1 to Registration Rights Agreement
dated as of March 22, 2000 by and among The viaLink
Company and i2 Technologies, Inc.
4.7 Registration Rights Agreement dated as of March 22,
2000 by and between The viaLink Company and
Millennium Partners, L.P.
4.8(1) Shareholder Agreement dated as of February 4, 1999,
by and between The viaLink Company and
Hewlett-Packard Company.
4.9(2) Registration Rights Agreement dated October 12, 1999
by and between The viaLink Company and i2
Technologies, Inc.
</TABLE>
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(1) Incorporated herein by reference to our Current Report on Form 8-K dated
February 4, 1999.
(2) Incorporated herein by reference to our Current Report on Form 8-K dated
October 12, 1999.
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EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
AMONG
THE VIALINK COMPANY
AND
THE PURCHASERS LISTED ON
SCHEDULE I TO THIS AGREEMENT
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I PURCHASE AND SALE OF SECURITIES.....................................2
1.1 Purchase and Sale of Securities..................................2
1.2 Separate Sales...................................................2
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................................................3
3.3 Authority........................................................4
3.4 SEC Documents; Financial Statements..............................4
3.5 Absence of Undisclosed Liabilities...............................5
3.6 Broker's and Finders' Fees.......................................5
3.7 Board Approval...................................................5
3.8 No Material Adverse Change.......................................5
3.9 Litigation.......................................................5
3.10 Representations Complete.........................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASERS.......................6
4.1 Corporate Organization...........................................6
4.2 Authorization....................................................6
4.3 No Violation.....................................................6
4.4 Brokers and Finders..............................................7
4.5 Corporate Approval...............................................7
4.6 Investment Intent................................................7
4.7 Access to Information............................................7
4.8 Accredited Investor..............................................7
4.9 Restricted Securities............................................7
4.10 Further Limitations on Disposition...............................7
ARTICLE V COVENANTS 8
5.1 Further Assurances...............................................8
5.2 Market Stand-Off.................................................8
5.3 Registration Rights Agreements...................................8
5.4 Listing of Common Stock..........................................9
5.5 Issuance of Certificates.........................................9
ARTICLE VI DELIVERIES AT CLOSING..............................................9
6.1 Warrant .........................................................9
</TABLE>
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<TABLE>
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6.2 Lock-Up Agreements...............................................9
6.3 Registration Rights Agreement....................................9
6.4 Legal Opinion....................................................9
6.5 Payment of Consideration........................................11
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION......11
7.1 Survival of Representations.....................................11
7.2 Statements as Representations...................................11
7.3 Indemnification by the Company..................................11
7.4 Indemnification by Purchasers...................................11
7.5 Limitation of Liability.........................................12
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................12
8.1 Amendment and Modifications.....................................12
8.2 Waiver of Compliance............................................12
8.3 Expenses........................................................12
8.4 Remedies Waiver.................................................12
8.5 Notices.........................................................13
8.6 Assignment......................................................13
8.7 Publicity.......................................................13
8.8 Severability....................................................14
8.9 Arbitration of Disputes.........................................14
8.10 Governing Law...................................................14
8.11 Counterparts....................................................14
8.12 Headings........................................................14
8.13 Third Parties...................................................14
8.14 Further Assurances..............................................15
8.15 Schedules.......................................................15
8.16 Entire Agreement................................................15
</TABLE>
LIST OF SCHEDULES
Schedule I
Company Disclosure Schedule
LIST OF EXHIBITS
Exhibit A - Form of Common Stock Purchase Warrant
Exhibit B - Form of Registration Rights Agreement
Exhibit C - Form of Lock-Up Agreement
Exhibit D - Form of i2 Amendment No. 1
Exhibit E - Form of Hewlett-Packard Amendment No.1
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("AGREEMENT") is made and entered
into as of March 22, 2000, by and among THE VIALINK COMPANY, a Delaware
corporation (the "COMPANY"), and the persons listed on SCHEDULE I attached
hereto (individually, a "PURCHASER," and collectively, "PURCHASERS").
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; and
WHEREAS, in connection with and in consideration for the payment by the
Purchasers to the Company of a total aggregate consideration of $6,000,000 at
Closing (as hereinafter defined), the Company shall issue to Purchasers that
number of shares (the "SHARES") of Common Stock that shall equal $6,000,000
divided by 80% of the average closing bid price of the Common Stock on the
Nasdaq SmallCap Market for the five consecutive trading days ending one day
prior to the date on which the Company files its registration statement on Form
SB-2 (the "FORM SB-2") in connection with the Company's anticipated underwritten
public offering (the "PURCHASE PRICE PER SHARE"). Each individual Purchaser
shall receive its pro-rata portion of the Shares, which portion shall be
determined in accordance with such Purchaser's allocated percentage set forth
opposite such Purchaser's name on SCHEDULE I, attached hereto. Purchasers shall
also receive warrants (individually, a "WARRANT" and collectively, the
"WARRANTS") to purchase, in the aggregate, that number of shares (the "WARRANT
SHARES") that shall equal fifteen percent (15%) of the total number of Shares
acquired, in the aggregate, by Purchasers at the Closing. The exercise price of
the Warrants shall be equal to 140% of the Purchase Price Per Share. Each
individual Purchaser shall receive its pro-rata portion of the Warrants, which
such portion shall be determined in accordance with such Purchaser's allocated
percentage set forth opposite such Purchaser's name on SCHEDULE I, attached
hereto. The Warrants shall be in the form attached hereto as Exhibit A.
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:
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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 Purchasers, and Purchasers shall acquire from the Company, the
Shares and the Warrants 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 Purchasers) and Purchasers shall pay on the Closing Date
to the Company an aggregate amount of $6,000,000 (the "CASH CONSIDERATION") by
wire transfer to such account as is designated by the Company to Purchasers in
writing.
1.2 Separate Sales. The Company's agreement with each
Purchaser is a separate agreement, and the sale of Shares and Warrants to each
Purchaser is a separate sale.
ARTICLE II
CLOSING
2.1 The Closing. The consummation of the sale and purchase of
the Shares and the Warrants referred to in Section 1.1 (the "CLOSING") shall
take place on the first business day following the business day on which the
Company files the Form SB-2, but in no event shall the Closing take place later
than the third business day after the date of this Agreement. The Closing shall
take place at the offices of Brobeck, Phleger & Harrison LLP, 301 Congress Ave.,
Suite 1200, Austin, Texas 78701, 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 Purchasers prior to the execution and delivery of this
Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents and
warrants to Purchasers 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
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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 50,000,000 shares of Common Stock 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 March 3, 2000, 19,735,416 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 Warrants and the Warrant
Shares (collectively, the "SECURITIES") have been duly authorized for issuance
and sale to the Purchasers 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 liability with respect
to the obligations of the Company by reason of being such a holder. Other than
as set forth in Section 3.2(d) of the Company Disclosure Schedule, the Shares
and the Warrants 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 Purchasers
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.
On March 1, 2000, the Company declared a two-for-one stock
split of its Common Stock payable on March 27, 2000 in the form of a dividend of
one share of Common Stock to each holder of record at the close of business on
March 17, 2000. Effective as of the payment with respect to such stock split,
all outstanding share and per share amounts, and the number and Purchase Price
per share of the Shares and Warrants, shall be deemed to give effect to such
split.
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3.3 Authority. The Company has corporate power and authority
to enter into and perform its obligations under this Agreement, the Registration
Rights Agreement, dated March 22, 2000, between the Company and Millennium
Partners, L.P. in the form attached hereto as Exhibit B (the "REGISTRATION
RIGHTS AGREEMENT"), i2 Amendment No. 1 (defined below), the Hewlett-Packard
Amendment No. 1 (defined below) and the Warrants (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. The Operative Agreements are valid
and binding agreements of the Company enforceable in accordance with their
terms, except that: (a) the enforceability of the 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 the 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 the 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
Purchasers 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 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 the 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 Purchasers 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 Purchasers all exhibits to the
Company SEC
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Documents filed prior to the date hereof. Other than as set forth in Section 3.4
to the Company Disclosure Schedule, 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).
Except for the disclosure of the Company's proposed follow-on offering pursuant
to Form SB-2, the Company has not disclosed to Millennium any material
non-public information.
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 Annual Report on Form 10-KSB for the
year ended December 31, 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. Other than as set forth in
Section 3.6 of the Company Disclosure Schedule, 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.
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 fluctuating 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
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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 PURCHASERS
Each Purchaser severally, and not jointly, represents and warrants to
the Company as follows:
4.1 Corporate Organization. Such Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its jurisdictions of incorporation or organization. Such Purchaser has
full corporate power and authority to carry on its business as it is now being
conducted.
4.2 Authorization. Such Purchaser has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Such Purchaser has taken all action required by law, its
Certificates of Incorporation and Bylaws or otherwise to authorize the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby. This Agreement is a valid and binding agreement of such
Purchaser enforceable in accordance with its terms, except that: (a) the
enforceability of this Agreement 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 may be subject to
or limited by bankruptcy, 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, with respect to Millennium, the Registration Rights Agreement, does not,
and the consummation of the transactions contemplated hereby 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 Certificates of Incorporation or Bylaws of such 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 such 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 such Purchaser or in connection with the execution and delivery of
this Agreement and, with respect to Millennium, the Registration Rights
Agreement, by such Purchaser or the consummation by such Purchaser of the
transactions contemplated hereby.
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4.4 Brokers and Finders. Other than as set forth in Section
3.6 of the Company Disclosure Schedule, such 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 and any
fees or commissions owing to A.G. Edwards & Sons, Inc. by Millennium, shall, if
due and payable, be paid by the Company pursuant to the Letter Agreement
referred to in Section 3.6 of the Company Disclosure Schedule.
4.5 Corporate Approval. All necessary corporate actions have
been taken by such Purchaser for the approval of such Purchaser to enter this
Agreement and, with respect to Millennium, the Registration Rights Agreement,
and the transactions contemplated hereby.
4.6 Investment Intent. Such Purchaser is purchasing the Shares
and Warrants 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 such 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. Such 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. Such
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 such Purchaser or to
which the Company has access.
4.8 Accredited Investor. Such Purchaser is an "accredited
investors" within the meaning of SEC Rule 501 of Regulation D, as presently in
effect. The principal places of business and the principal offices of the
Purchasers are located in Texas in the case of i2 Technologies, Inc., California
in the case of Hewlett-Packard Company and New York in the case of Millennium.
4.9 Restricted Securities. Such 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 such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
such 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. Such Purchaser agrees
not to offer, sell, exchange, transfer, pledge or otherwise dispose of any of
the Securities unless at that time either:
7
<PAGE> 11
(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
such 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 such
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 necessary registrations and filings to be obtained in connection
with the transactions contemplated by this Agreement.
5.2 Market Stand-Off. At the Closing, i2 and Hewlett-Packard
will execute a 120-day underwriter's lock-up agreement in the form attached
hereto as Exhibit C (the "LOCK-UP AGREEMENT").
5.3 Registration Rights Agreements. At the Closing, i2
Technologies, Inc. and the Company shall execute Amendment No. 1 to the
Registration Rights Agreement, dated
8
<PAGE> 12
October 12, 1999, in the form attached hereto as Exhibit D ("i2 AMENDMENT NO.
1"); Hewlett-Packard Company and the Company shall execute Amendment No. 1 to
the Shareholders Agreement, dated February 4, 1999, in the form attached hereto
as Exhibit E ("HEWLETT-PACKARD AMENDMENT NO. 1"); and Millennium and the Company
shall execute the Registration Rights Agreement.
5.4 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.
5.5 Issuance of Certificates. Promptly following the Closing,
the Company shall cause its transfer agents to issue and deliver to each
Purchaser certificates representing the Shares purchased by such Purchaser.
ARTICLE VI
DELIVERIES AT CLOSING
6.1 Warrant. The Company shall execute and deliver to each
Purchaser the Warrants issuable to each Purchaser.
6.2 Lock-Up Agreements. The Company shall have no obligation
to enter into the transactions contemplated by this Agreement with i2 and
Hewlett-Packard until i2 and Hewlett-Packard shall have executed and delivered
to the Company their respective Lock-Up Agreement.
6.3 Registration Rights Agreement. The Company shall have no
obligation to enter into the transactions contemplated by this Agreement with
respect to each Purchaser, respectively, until: (i) i2 Technologies, Inc. shall
have executed the i2 Amendment No. 1; (ii) Hewlett-Packard Company shall have
executed the Hewlett-Packard Amendment No. 1; and (iii) Millennium shall have
executed the Registration Rights Agreement.
6.4 Legal Opinion. Counsel for the Company shall deliver, to
the Purchasers, 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 Delaware. The Company has 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 Purchasers 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 Warrants, 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
9
<PAGE> 13
obligations of the Company by reason of being such a holder. Other than
as set forth in Section 3.2(d) of the Company Disclosure Schedule, 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. The Operative Agreements
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) 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.
(e) 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 SEC Exhibit
to which the Company is a party or by which it may be bound (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
10
<PAGE> 14
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
6.5 Payment of Consideration. Purchasers 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 Purchasers, any subsidiary, director, officer, employee,
partner, agent or representative of any 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 or warranties will
be limited to an aggregate of Six Million and 00/100 Dollars ($6,000,000.00),
and $2,000,000 per Purchaser, plus any amounts paid by such Purchaser to
exercise the Warrants, 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 Purchasers agree to assume the responsibility for
insuring against or otherwise bearing the risk of greater damages.
7.4 Indemnification by Purchasers. Subject to the limitations
set forth in this Article VII, each Purchaser, severally and not jointly, 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
11
<PAGE> 15
out of any breach of any representation, warranty or agreement of such 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 a Purchaser of its representations, warranties or
agreements contained in this Agreement. The maximum liability of each individual
Purchaser pursuant to this Section 7.4 with respect to any breach by such
Purchaser of its representation and warranties will be limited to Two Million
and 00/100 Dollars ($2,000,000) per Purchaser, and Six Million and 00/100
Dollars ($6,000,000) in the Aggregate, plus any amounts paid by such Purchaser
to exercise the Warrants, 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 make known to or was foreseeable by the
Company.
7.5 Limitation of Liability. NO 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
Purchasers 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. Unless otherwise agreed to in writing or as set
forth in Schedule 3.6 of the Company Disclosure Schedule, 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.
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.
12
<PAGE> 16
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
13155 Noel Road, Suite 800
Dallas, TX 75240
Attn: J. Andrew Kerner
Fax: (972) 934-5555
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
if to a Purchaser, at the addresses set forth opposite each
Purchaser's name on SCHEDULE I, attached hereto.
with a copy (which shall not constitute notice) in
the case of i2 to:
Brobeck, Phleger & Harrison LLP
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Attention: Ronald G. Skloss, Esq.
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. Notwithstanding the foregoing, Millennium may assign its rights
hereunder, in whole or in part, in connection with any private resale of Common
Stock or Warrants purchased hereunder.
8.7 Publicity. Neither the Company nor any 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
13
<PAGE> 17
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. The Company
agrees to issue a press release announcing the transactions contemplated by this
Agreement promptly following the Closing.
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.
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.
14
<PAGE> 18
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.]
15
<PAGE> 19
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.
THE VIALINK COMPANY
By: /s/ J. Andrew Kerner
----------------------------
J. Andrew Kerner
Chief Financial Officer
PURCHASERS:
i2 TECHNOLOGIES, INC.
By: /s/ Robert C. Donohoo
-----------------------------
Name: Robert C. Donohoo
Title: Corporate Counsel
HEWLETT-PACKARD COMPANY
By: /s/ Craig White
-----------------------------
Name: Craig White
Title: Vice President
MILLENNIUM PARTNERS, L.P.
By: Millennium Management L.L.C.
General Partner
By: /s/ Terry Feeney
--------------------------
Name: Terry Feeney
Title: CAO
<PAGE> 20
SCHEDULE I
<TABLE>
<CAPTION>
ALLOCATION CASH
PURCHASER PERCENTAGE CONSIDERATION
<S> <C> <C> <C>
i2 Technologies, Inc. 33 1/3% $2,000,000
1 i2 Place
11701 Luna Road
Dallas, Texas 75234
Hewlett-Packard Company 33 1/3% $2,000,000
[Address]
Millennium Partners, L.P. 33 1/3% $2,000,000
c/o Millennium Management L.L.C.
666 Fifth Avenue
New York, New York 10103
---- ----------
Total 100% $6,000,000
</TABLE>
<PAGE> 21
EXHIBIT A
FORM OF WARRANT
<PAGE> 22
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
<PAGE> 23
EXHIBIT C
FORM OF LOCK-UP AGREEMENT
<PAGE> 24
EXHIBIT D
i2 AMENDMENT NO. 1
<PAGE> 25
EXHIBIT E
HEWLETT-PACKARD AMENDMENT NO. 1
<PAGE> 1
EXHIBIT 4.2
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. HP 1 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
March 24, 2000
The viaLink Company, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Hewlett-Packard Company, a Delaware
corporation ("HP"), 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 March 24, 2003, up to that number of
fully paid and nonassessable shares (the "Warrant Shares") of the Company's
Common Stock, $0.001 par value that shall equal 5,010. The purchase price per
share of the Warrant Shares shall be equal to $83.83 (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.
The term "Common Stock" includes the Company's common stock,
$0.001 par value, as authorized on March 24, 2000, 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
<PAGE> 2
Fair Market Value shall be the average of
the last 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 those certain
Common Stock Purchase Warrants, dated March
24, 2000, issued by the Company to [i2
Technologies, Inc. ("i2")/HP and Millennium
Partners, L.P. ("Millennium")], which
originally granted to each of i2, HP and
Millennium the right to purchase 5,010
shares of Common Stock. 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 (by a majority
vote) 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
March 24, 2000, 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
March 24, 2000, or Other Securities pursuant to Section 4 or otherwise.
2
<PAGE> 3
1. Exercise of Warrant.
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.
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1.5 Net Issue.
(a) Election. The holder hereof may elect to receive, without
the payment by the holder of any additional consideration, Warrant
Shares equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the net
issue election notice attached hereto, duly executed, at the office of
the Company. Thereupon, the Company shall issue to the holder hereof
such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
X=Y(A-B)
------
A
where X= the number of shares to be issued to the holder hereof
pursuant to this Section 1.5.
Y= the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.5.
A= the Fair Market Value of one share of Common Stock as of the time
the net issue election is made pursuant to this Section 1.5.
B= the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.5.
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 date
fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor,
(f) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(g) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
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(h) 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 Section 4 and Section 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 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
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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.
(a) If and whenever after the date hereof the Company shall
issue or sell any shares of its capital stock (except as set forth
below in subparagraph 5.2(b)), 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.
(b) The following issuance of the Company's securities shall
not result in an adjustment in the Purchase Price: (i) stock issued
pursuant to a bona fide, public offering of shares of Common Stock,
registered under the Securities Act, pursuant to a registration
statement; (ii) stock issued pursuant to the conversion or exercise of
convertible or exercisable securities outstanding as of the date
hereof; (iii) stock issued pursuant to or 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;
(iv) stock issued upon the exercise of any warrants issued as of the
date hereof (which do not have as their purpose an equity financing
element) approved by the Board; (v) stock issued upon the exercise of
one or more of the Warrants; or (vi) stock issued pursuant to options,
warrants, rights or similar commitments obligating the Company to issue
shares of its capital stock which are in existence as of the date
hereof.
5.3 Option Grants. Except as precluded in subsection 5.2(b), in
the event that at any time after March 22, 2000 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
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<PAGE> 7
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 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. Except as precluded in
subsection 5.2(b), 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 subsection 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:
(a) 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.
(b) 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
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<PAGE> 8
such expiration or termination had such Options or Convertible
Securities, to the extent outstanding immediately prior to such
expiration or termination, never been issued.
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:
(c) 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.
(d) 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.
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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<PAGE> 9
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.
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 with or merge into
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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 (i) with respect to i2, to the registration rights in respect thereof
as provided in the Registration Rights Agreement between the Company and i2,
dated October 12, 1999, as amended on March 22, 2000, in accordance with the
terms thereof, (ii) with respect to HP, to the registration rights in respect
thereof as provided in the Shareholder Agreement between the Company and HP,
dated February 4, 1999, as amended on March 22, 2000, in accordance with the
terms thereof, and (iii) with respect to Millennium, to the registration rights
in respect thereof as provided in the Registration Rights Agreement between the
Company and Millennium, dated March 22, 2000, in accordance with the terms
thereof. Any holder not a party to either of the two agreements described in
this Section 8 shall not be entitled to registration rights.
9. Notices of Record Date, etc. In the event of:
(a) 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
(b) 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
(c) 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
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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
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:
(a) 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
(b) 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
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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.
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), March 24, 2003.
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.
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<PAGE> 13
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> 14
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:
(a) 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;.
(b) 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.
(c) 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.
(d) The undersigned is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(e) 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 proposed
<PAGE> 15
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.
(f) 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> 16
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:
- -----------------------
<PAGE> 17
NET ISSUE ELECTION NOTICE
TO: THE VIALINK COMPANY Date:
------------------------
The undersigned hereby elects under Section 1.5 of the Warrant to
surrender the right to purchase _______ shares of Common Stock pursuant to this
Warrant. The certificate(s) for the shares issuable upon such net issue election
shall be issued in the name of:
------------------------------------
------------------------------------
(Please Print Name, Address and Taxpayer Identification No.)
------------------------------------
Name of holder of this Warrant or Assignee:
------------------------------------
(Please Print)
Address:
---------------------------------
Signature:
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular without alteration or
enlargement or any change whatever unless this Warrant has been assigned.
<PAGE> 1
EXHIBIT 4.3
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 1 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
March 24, 2000
The viaLink Company, a Delaware 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 March 24, 2003, up to that number of
fully paid and nonassessable shares (the "Warrant Shares") of the Company's
Common Stock, $0.001 par value that shall equal 5,010. The purchase price per
share of the Warrant Shares shall be equal to $83.83 (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 March 24, 2000, 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
<PAGE> 2
Fair Market Value shall be the average of the last 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 those certain Common Stock
Purchase Warrants, dated March 24, 2000, issued by the
Company to [i2/Hewlett-Packard Company ("HP") and Millennium
Partners, L.P. ("Millennium")], which originally granted to
each of i2, HP and Millennium the right to purchase 5,010
shares of Common Stock. 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 (by a
majority vote) 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 March 24, 2000, 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 March 24, 2000, or Other Securities pursuant to
Section 4 or otherwise.
2
<PAGE> 3
1. Exercise of Warrant.
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.
3
<PAGE> 4
1.5 Net Issue.
(a) Election. The holder hereof may elect to receive, without the
payment by the holder of any additional consideration, Warrant Shares
equal to the value of this Warrant or any portion hereof by the surrender
of this Warrant or such portion to the Company, with the net issue
election notice attached hereto, duly executed, at the office of the
Company. Thereupon, the Company shall issue to the holder hereof such
number of fully paid and nonassessable shares of Common Stock as is
computed using the following formula:
X = Y(A-B)
------
A
where X = the number of shares to be issued to the holder hereof pursuant
to this Section 1.5.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.5.
A = the Fair Market Value of one share of Common Stock as of the time the
net issue election is made pursuant to this Section 1.5.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.5.
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 date
fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor,
(f) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(g) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
4
<PAGE> 5
(h) 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 Section 4 and Section 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 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
5
<PAGE> 6
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.
(a) If and whenever after the date hereof the Company shall issue
or sell any shares of its capital stock (except as set forth below in
subparagraph 5.2(b)), 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.
(b) The following issuance of the Company's securities shall not
result in an adjustment in the Purchase Price: (i) stock issued pursuant
to a bona fide, public offering of shares of Common Stock, registered
under the Securities Act, pursuant to a registration statement; (ii)
stock issued pursuant to the conversion or exercise of convertible or
exercisable securities outstanding as of the date hereof; (iii) stock
issued pursuant to or 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; (iv) stock issued upon the
exercise of any warrants issued as of the date hereof (which do not have
as their purpose an equity financing element) approved by the Board; (v)
stock issued upon the exercise of one or more of the Warrants; or (vi)
stock issued pursuant to options, warrants, rights or similar commitments
obligating the Company to issue shares of its capital stock which are in
existence as of the date hereof.
5.3 Option Grants. Except as precluded in subsection 5.2(b), in the
event that at any time after March 22, 2000 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
6
<PAGE> 7
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 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. Except as precluded in subsection
5.2(b), 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 subsection
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:
(a) 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.
(b) 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
7
<PAGE> 8
such expiration or termination had such Options or Convertible Securities,
to the extent outstanding immediately prior to such expiration or
termination, never been issued.
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:
(a) 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.
(b) 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.
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, the
8
<PAGE> 9
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.
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 with or merge into
9
<PAGE> 10
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
(i) with respect to i2, to the registration rights in respect thereof as
provided in the Registration Rights Agreement between the Company and i2, dated
October 12, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, (ii) with respect to HP, to the registration rights in respect thereof
as provided in the Shareholder Agreement between the Company and HP, dated
February 4, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, and (iii) with respect to Millennium, to the registration rights in
respect thereof as provided in the Registration Rights Agreement between the
Company and Millennium, dated March 22, 2000, in accordance with the terms
thereof. Any holder not a party to either of the two agreements described in
this Section 8 shall not be entitled to registration rights.
9. Notices of Record Date, etc. In the event of:
(a) 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
(b) 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
(c) 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
10
<PAGE> 11
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
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:
(a) 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
(b) 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
11
<PAGE> 12
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.
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), March 24, 2003.
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.
12
<PAGE> 13
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> 14
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:
(a) 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;.
(b) 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.
(c) 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.
(d) The undersigned is an "accredited investor" within the meaning of
SEC Rule 501 of Regulation D, as presently in effect.
(e) 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 proposed
<PAGE> 15
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.
(f) 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> 16
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:
- -----------------------
<PAGE> 17
NET ISSUE ELECTION NOTICE
TO: THE VIALINK COMPANY Date:___________________________
The undersigned hereby elects under Section 1.5 of the Warrant to surrender
the right to purchase _______ shares of Common Stock pursuant to this Warrant.
The certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of:
------------------------------------------------------------
------------------------------------------------------------
(Please Print Name, Address and Taxpayer Identification No.)
----------
Name of holder of this Warrant or Assignee:
-------------------------------
(Please Print)
Address:
---------------
Signature:
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular without alteration or
enlargement or any change whatever unless this Warrant has been assigned.
<PAGE> 1
EXHIBIT 4.4
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. MLP 1 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
March 24, 2000
The viaLink Company, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Millennium Partners, L.P., a Cayman Islands
limited partnership ("Millennium"), 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 March 24, 2003,
up to that number of fully paid and nonassessable shares (the "Warrant Shares")
of the Company's Common Stock, $0.001 par value that shall equal 5,010. The
purchase price per share of the Warrant Shares shall be equal to $83.83 (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 March 24, 2000, 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
<PAGE> 2
Fair Market Value shall be the average of the last 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 those certain Common Stock Purchase
Warrants, dated March 24, 2000, issued by the Company to [i2
Technologies, Inc. ("i2")/Hewlett-Packard Company ("HP") and
Millennium, which originally granted to each of i2, HP and
Millennium the right to purchase 5,010 shares of Common
Stock. 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 (by a majority vote)
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 March 24, 2000, 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 March 24, 2000, or Other Securities pursuant to
Section 4 or otherwise.
2
<PAGE> 3
1. Exercise of Warrant.
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.
3
<PAGE> 4
1.5 Net Issue.
(a) Election. The holder hereof may elect to receive, without the
payment by the holder of any additional consideration, Warrant Shares equal
to the value of this Warrant or any portion hereof by the surrender of this
Warrant or such portion to the Company, with the net issue election notice
attached hereto, duly executed, at the office of the Company. Thereupon,
the Company shall issue to the holder hereof such number of fully paid and
nonassessable shares of Common Stock as is computed using the following
formula:
X=Y(A-B)
------
A
where X= the number of shares to be issued to the holder hereof pursuant to
this Section 1.5.
Y= the number of shares covered by this Warrant in respect of which the net
issue election is made pursuant to this Section 1.5.
A= the Fair Market Value of one share of Common Stock as of the time the
net issue election is made pursuant to this Section 1.5.
B= the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.5.
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 date
fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor,
(f) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(g) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
4
<PAGE> 5
(h) 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 Section 4 and Section 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 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
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<PAGE> 6
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.
(a) If and whenever after the date hereof the Company shall issue
or sell any shares of its capital stock (except as set forth below in
subparagraph 5.2(b)), 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.
(b) The following issuance of the Company's securities shall not
result in an adjustment in the Purchase Price: (i) stock issued pursuant to
a bona fide, public offering of shares of Common Stock, registered under
the Securities Act, pursuant to a registration statement; (ii) stock issued
pursuant to the conversion or exercise of convertible or exercisable
securities outstanding as of the date hereof; (iii) stock issued pursuant
to or 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; (iv) stock issued upon the exercise of any warrants
issued as of the date hereof (which do not have as their purpose an equity
financing element) approved by the Board; (v) stock issued upon the
exercise of one or more of the Warrants; or (vi) stock issued pursuant to
options, warrants, rights or similar commitments obligating the Company to
issue shares of its capital stock which are in existence as of the date
hereof.
5.3 Option Grants. Except as precluded in subsection 5.2(b), in the
event that at any time after March 22, 2000 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
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<PAGE> 7
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 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. Except as precluded in subsection
5.2(b), 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 subsection
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:
(a) 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.
(b) 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
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<PAGE> 8
such expiration or termination had such Options or Convertible Securities,
to the extent outstanding immediately prior to such expiration or
termination, never been issued.
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:
(a) 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.
(b) 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.
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, the
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<PAGE> 9
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.
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 with or
merge into
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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
(i) with respect to i2, to the registration rights in respect thereof as
provided in the Registration Rights Agreement between the Company and i2, dated
October 12, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, (ii) with respect to HP, to the registration rights in respect thereof
as provided in the Shareholder Agreement between the Company and HP, dated
February 4, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, and (iii) with respect to Millennium, to the registration rights in
respect thereof as provided in the Registration Rights Agreement between the
Company and Millennium, dated March 22, 2000, in accordance with the terms
thereof. Any holder not a party to either of the two agreements described in
this Section 8 shall not be entitled to registration rights.
9. Notices of Record Date, etc. In the event of:
(a) 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
(b) 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
(c) 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
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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
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:
(a) 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
(b) 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
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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.
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), March 24, 2003.
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.
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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> 14
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:
(a) 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;.
(b) 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.
(c) 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.
(d) The undersigned is an "accredited investor" within the meaning of
SEC Rule 501 of Regulation D, as presently in effect.
(e) 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 proposed
<PAGE> 15
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.
(f) 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> 16
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:
- --------------------------
<PAGE> 17
NET ISSUE ELECTION NOTICE
TO: THE VIALINK COMPANY Date:
-------------------------------
The undersigned hereby elects under Section 1.5 of the Warrant to surrender
the right to purchase _______ shares of Common Stock pursuant to this Warrant.
The certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of:
-------------------------------
-------------------------------
(Please Print Name, Address and
Taxpayer Identification No.)
Name of holder of this Warrant or Assignee:
-------------------------------------
(Please Print)
Address:
--------------------------------
Signature:
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular without alteration or
enlargement or any change whatever unless this Warrant has been assigned.
<PAGE> 1
EXHIBIT 4.5
AMENDMENT NO. 1
TO
SHAREHOLDER AGREEMENT
THIS AMENDMENT No. 1 TO SHAREHOLDER AGREEMENT (the
"Amendment") dated as of March 22, 2000, is entered into by and among viaLink
Company, a Delaware corporation (the "Company"), and Hewlett-Packard Company, a
Delaware corporation ("Hewlett-Packard"). Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in that certain
Shareholder Agreement dated February 4, 1999 (the "Shareholder Agreement").
I N T R O D U C T I O N
WHEREAS, the Company and Hewlett-Packard are parties to the
Shareholder Agreement and desire to amend such agreement to provide that any
shares of the capital stock of the Company acquired by Hewlett-Packard
subsequent to the execution date of the Shareholder Agreement shall become
subject to the Shareholder Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing premises and
for certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Amendment to Shareholder Agreement. The Shareholder
Agreement shall be amended by replacing in its entirety Paragraph 9 (iii) with
the following:
"Registrable Securities" means, with respect to Holder, (i)
the Company's Common Stock issued to Holder pursuant to any subsequent
Securities Purchase Agreement, including, but not limited to, those
shares of the Company's Common Stock issued pursuant to that certain
Securities Purchase Agreement, dated March 22, 2000 (the "Securities
Purchase Agreement"), and those shares of the Company's Common Stock
issuable upon the exercise of the Warrants purchased by Holder pursuant
to the Securities Purchase Agreement, (ii) the Company's Common Stock
issued to Holder upon conversion of the Convertible Note, and (iii) any
Common Stock or other equity securities issued or issuable with respect
to the securities referred to in clause (ii) by way of a stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities will cease to be
Registrable Securities (A) when they have been distributed to the
public pursuant to an offering registered under the Securities Act or
(B) after the Registrable Securities held by Holder may be sold in
90-day period pursuant to Rule 144 under the Securities Act (or any
similar rule then in effect).
<PAGE> 2
2. Counterparts. This Amendment may be executed in multiple
counterparts, each of which when so executed and delivered shall be an original,
but all of such counterparts together shall constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
<PAGE> 3
IN WITNESS WHEREOF, this Amendment No. 1 to the Shareholder
Agreement has been executed by the parties hereof.
VIALINK COMPANY
By: /s/ J. Andrew Kerner
--------------------
J. Andrew Kerner
Chief Financial
Officer
HEWLETT-PACKARD COMPANY
By: /s/ Craig White
--------------------
Name: Craig White
Title: Vice President
<PAGE> 1
EXHIBIT 4.6
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT No. 1 TO REGISTRATION RIGHTS AGREEMENT (the
"Amendment") dated as of March 22, 2000, is entered into by and among viaLink
Company, a Delaware corporation (the "Company"), and i2 Technologies, Inc., a
Delaware corporation ("i2"). Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in that certain Registration
Rights Agreement dated October 12, 1999 (the "Registration Rights Agreement").
I N T R O D U C T I O N
WHEREAS, the Company and i2 are parties to the Registration
Rights Agreement and desire to amend such agreement to provide that any shares
of the capital stock of the Company acquired by i2 subsequent to the execution
date of the Registration Rights Agreement shall become subject to the
Registration Rights Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing premises and
for certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Amendment to Registration Rights Agreement. The
Registration Rights Agreement shall be amended by replacing in its entirety
Recital (A) with the following:
A. The Company and the Holders are parties to a Securities
Purchase Agreement, dated October 12, 1999 (the "Purchase Agreement")
and a Securities Purchase Agreement, dated March 22, 2000 (the
"Subsequent Purchase Agreement"). The Purchase Agreement and the
Subsequent Purchase Agreement provide, among other things, for the
Holders' acquisition of shares of Common Stock, par value $0.001 per
share ("Shares") and warrants to purchase shares of Common Stock of the
Company (each a "Warrant" and collectively, the "Warrants"). Any
reference herein to an individual Warrant shall encompass all Warrants.
2. Counterparts. This Amendment may be executed in multiple
counterparts, each of which when so executed and delivered shall be an original,
but all of such counterparts together shall constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
<PAGE> 2
IN WITNESS WHEREOF, this Amendment No. 1 to the Registration
Rights Agreement has been executed by the parties hereof.
VIALINK COMPANY
By: /s/ J. Andrew Kerner
-----------------------
J. Andrew Kerner
Chief Financial Officer
i2 TECHNOLOGIES, INC.
By: /s/ Robert C. Donohoo
-----------------------
Name: Robert C. Donohoo
Title: Corporate Counsel
<PAGE> 1
EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE VIALINK COMPANY
AND
MILLENNIUM PARTNERS, L.P.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS...................................................1
ARTICLE 2 REGISTRATION RIGHTS...........................................3
2.1 Demand Registration Rights............................3
2.2 Piggyback Registrations...............................3
1.3 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.............................8
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.......................................11
4.3 Counterparts.........................................11
4.4 Entire Agreement.....................................11
4.5 Amendments and Waivers...............................11
4.6 Successors and Assigns...............................11
4.7 Severability.........................................11
4.8 Remedies Cumulative..................................11
4.9 Governing Law........................................12
4.10 Rules of Construction................................12
4.11 Currency.............................................12
</TABLE>
i
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of March 22, 2000, by and between The viaLink Company, a
Delaware corporation (together with any successor entity, the "Company"), and
Millennium Partners, L.P. (the "Holder").
R E C I T A L S:
A. The Company and the Holder are parties to a Securities Purchase
Agreement, dated March 22, 2000 (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
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 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
<PAGE> 4
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 that 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.
2
<PAGE> 5
ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand Registration Rights. The Company shall file with the
Commission a registration statement on Form S-3, if available, or such other
short form of registration statement which the Company is eligible to use and
which is appropriate for the contemplated transaction, 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 cause such Demand Registration to become or
be declared effective within 120 days after the Closing, but in no event shall
such Demand Registration occur within 30 days after the Commission has declared
effective a registration statement filed by the Company with respect to the
Company's Common Stock. The Company shall 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 this Agreement, if the managing underwriter determines in
good faith that marketing factors require a limitation of the number of
shares to be underwritten,
3
<PAGE> 6
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 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
4
<PAGE> 7
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;
(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,
5
<PAGE> 8
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;
(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;
6
<PAGE> 9
(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, 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
7
<PAGE> 10
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, 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
8
<PAGE> 11
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 the result of the losses, claims,
damages or liabilities referred to above in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements and omissions
that resulted in such losses, claims, damages or liabilities. 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
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shall not be unreasonably withheld, conditioned or delayed. The contribution
obligation of any Holder will be limited to the net amount of proceeds received
by such Holder from the sale of the Registrable Stock pursuant to such
Registration Statement.
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
13155 Noel Road, Suite 800
Dallas, Texas 75240
Attention: J. Andrew Kerner
Fax: (972) 934-5555
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
if to the Holder, at the address set forth opposite Holder's
name on Schedule I to the Purchase Agreement.
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.
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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.
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. Each party hereto agrees to indemnify the
other against any and all loss, liability, expenses, damages, and/or fees
(including reasonable attorneys fees) arising out of such party's breach or
non-performance of any provision of this Agreement, and/or arising out of the
enforcement of this indemnity. In addition, the Company acknowledges that each
Holder shall have the right to have the provisions of this Agreement
specifically enforced, since there may not be an adequate remedy at law for
non-performance.
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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
------------------------
J. Andrew Kerner
Chief Financial Officer
HOLDER:
MILLENNIUM PARTNERS, L.P.
Millennium Management L.L.C.
General Partner
By: /s/ Terry Feeney
------------------------
Name: Terry Feeney
Title: CAO
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