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EXHIBIT 4.6
NEITHER THIS WARRANT NOR ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
DISPOSED OF WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.
No. i2-001 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE viaLINK COMPANY
COMMON STOCK PURCHASE WARRANT
October 12, 1999
The viaLink Company, an Oklahoma corporation (the "Company"), hereby
certifies that, for value received, i2 Technologies, Inc., a Delaware
corporation ("i2"), or its permitted assigns, is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
before 5:00 p.m. (Dallas, Texas time), on October 12, 2001, up to 186,567 fully
paid and nonassessable shares (the "Warrant Shares") of the Company's Common
Stock, $0.001 par value, at a purchase price per share of $26.80 (such purchase
price per share as adjusted from time to time as herein provided is referred to
herein as the "Purchase Price"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Business Day" means any day except a Saturday
or a Sunday or other day on which the National Market (as hereinafter
defined), or any national securities exchange on which the Common
Stock (as hereinafter defined) is traded or admitted for unlisted
trading privileges, is closed for trading.
(b) The term "Company" shall include The viaLink Company, and
any corporation which shall succeed to, or assume the obligations of,
The viaLink Company hereunder.
(c) The term "Common Stock" includes the Company's common
stock, $0.001 par value, as authorized on October 12, 1999, and/or any
Other Securities into which or for which the Warrant Shares may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(d) The term "Fair Market Value" per share of Common Stock
means:
(1) If the Common Stock is traded on a national
securities exchange or admitted to unlisted trading
privileges on such an exchange, or is listed on the
National Market (the "National Market") of the
National Association of Securities Dealers Automated
Quotations System (the "NASDAQ"), the Fair Market
Value shall be the average of the last
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reported sale prices of the Common Stock on such
exchange or on the National Market over the five
consecutive Business Days immediately preceding the
date of determination or, if the last reported sale
price information is not available for such days,
the average of the mean of the closing bid and asked
prices for such days on such exchange or on the
National Market;
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the Fair Market Value
shall be the average of the mean of the last bid and
asked prices reported over the five consecutive
Business Days immediately preceding the date of
determination (A) by the NASDAQ or (B) if reports
are unavailable under clause (A) above, by the
National Quotation Bureau Incorporated; and
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and ask prices
are not reported, the Fair Market Value shall be the
price per share which the Company could obtain from
a willing buyer for shares of Common Stock, as such
price shall be determined by mutual agreement of the
Company and the holders of rights to purchase a
majority of the shares of Common Stock purchasable
under all warrants then outstanding and issued
(directly or indirectly) from that certain Common
Stock Purchase Warrant, dated October 12, 1999,
issued by the Company to i2 Technologies, Inc. which
originally granted to i2 Technologies, Inc. the
right to purchase 186,567 shares of Common Stock
(Warrant No. i2-001). If such holders and the
Company are unable to agree on such Fair Market
Value, the Company shall select a pool of three
independent and nationally-recognized investment
banking firms from which such holders shall select
one such firm to appraise the fair market value of
the Warrant and to perform the computations
involved. The determination of such investment
banking firm shall be binding upon the Company and
such holders in connection with any transaction
occurring at the time of such determination. All
expenses of such investment banking firm shall be
borne by the Company. In all cases, the
determination of fair market value shall be made
without consideration of the lack of a liquid public
market for the Common Stock and without
consideration of any "control premium" or any
discount for holding less than a majority or
controlling interest of the outstanding Common
Stock.
(e) The term "Other Securities" refers to any stock (other
than Common Stock) or other securities of the Company or any other
person (corporate or otherwise) (i) which the holder of this Warrant
at any time shall be entitled to receive, or shall have received, on
the exercise of this Warrant, in lieu of or in addition to shares of
the Company's common stock, $.001 par value per share, as authorized
on October 12, 1999, or (ii) which at any time shall be issuable or
shall have been issued in exchange for or in replacement of shares of
the Company's common stock, $.001 par value per share, as authorized
on October 12, 1999, or Other Securities pursuant to Section 4 or
otherwise.
1. Exercise of Warrant.
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1.1 Full Exercise. This Warrant may be exercised at any time
after the date hereof during normal business hours before its expiration in
full by the holder hereof by surrender of this Warrant, with the form of
subscription at the end hereof duly executed by such holder, to the Company at
its principal office, accompanied by payment, in cash, by bank cashier's check
payable to the order of the Company or by wire transfer, in the amount obtained
by multiplying the number of shares of Common Stock and/or Other Securities for
which this Warrant is then exercisable by the Purchase Price then in effect.
1.2 Partial Exercise. This Warrant may be exercised at any
time during normal business hours after the date hereof before its expiration
in part by surrender of this Warrant and payment of the Purchase Price then in
effect in the manner and at the place provided in subsection 1.1, except that
the amount payable by the holder on such partial exercise shall be the amount
obtained by multiplying (a) the number of shares of Common Stock and/or Other
Securities designated by the holder in the subscription at the end hereof by
(b) the Purchase Price then in effect. On any such partial exercise, the
Company at its expense will forthwith issue and deliver to or upon the order of
the holder hereof a new Warrant or Warrants of like tenor, in the name of the
holder hereof or as such holder (upon payment by such holder of any applicable
transfer taxes) may request, filling in the aggregate on the face or faces
thereof the number of shares of Common Stock and/or Other Securities for which
such Warrant or Warrants may still be exercised.
1.3 Company Acknowledgment. The Company will, at the time of
any exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to such holder any
rights to which such holder shall continue to be entitled after such exercise
in accordance with the provisions of this Warrant. If the holder shall fail to
make any such written request, such failure shall not affect the continuing
obligation of the Company to afford to such holder any such rights.
1.4 Trustee for Warrant Holders. In the event that a bank or
trust company shall have been appointed as trustee for the holder of this
Warrant pursuant to subsection 4.2, such bank or trust company shall have all
the powers and duties of a warrant agent appointed pursuant hereto and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, Etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten Business Days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof, or as such holder
(upon payment by such holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock (or, to the extent not constituting Common Stock, Other
Securities) to which such holder shall be entitled on such exercise, plus, in
lieu of any fractional share to which such holder would otherwise be entitled,
cash equal to such fraction multiplied by the then current Fair Market Value of
one full share, together with any other property (including cash, where
applicable) to which such holder is entitled upon such exercise pursuant to
Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock (or, to the extent not constituting Common Stock, Other
Securities) in their capacity as such shall have received, or (on or after the
record
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date fixed for the determination of shareholders eligible to receive)
shall have become entitled to receive, without payment therefor,
(a) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of capital stock issued as a stock dividend or in
a stock split (adjustments in respect of which are provided for in Section 5),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) determined by multiplying (i) the
amount of stock and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section) which such holder
would hold on the date of such exercise, if on the record date with respect to
or the date of the issuance of the stock, securities, property and cash
referred to in subdivisions (a), (b) or (c) of this Section 3, as applicable,
it had been the holder of record of the number of shares of Common Stock called
for on the face of this Warrant and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and all such other or additional stock and other securities and property
(including cash in the cases referred to in subdivisions (b) and (c) of this
Section 3) receivable by it as aforesaid during such period, giving effect to
all adjustments called for during such period by Sections 4 and 5 by (ii) the
percentage of this Warrant then being exercised.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1 Reorganization, Consolidation, Merger, etc. In case at
any time or from time to time, the Company shall (a) effect a reorganization,
reclassification or recapitalization (b) consolidate with or merge into any
other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, reclassification, recapitalization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Common Stock (or, to the extent not
constituting Common Stock, Other Securities) issuable on such exercise prior to
such consummation or such effective date, the amount of stock and other
securities and property (including cash) determined by multiplying (i) the
amount of the stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in connection
with such event, as the case may be, if such holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided in Sections 3 and 5 by (ii) the percentage of this
Warrant then being exercised.
4.2 Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its properties or
assets, the Company, prior to such dissolution, shall at its expense deliver or
cause to be delivered the Other Securities and property (including cash, where
applicable) receivable by the holders of this Warrant after the effective date
of such dissolution
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pursuant to this Section 4 to a bank or trust company having its principal
office in Dallas, Texas, as trustee for the holder of this Warrant.
4.3 Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 4, this Warrant shall continue in full force and
effect, subject to expiration in accordance with Section 17 hereof, and the
terms hereof shall be applicable to the Other Securities and property
receivable on the exercise of this Warrant after the consummation of such
reorganization, consolidation or merger or the effective date of dissolution
following any such transfer, as the case may be, and shall be binding upon the
issuer of any such Other Securities, including, in the case of any such
transfer, the person acquiring all or substantially all of the properties or
assets of the Company, whether or not such person shall have expressly assumed
the terms of this Warrant as provided in Section 6.
5. Anti-Dilution Adjustments.
5.1 General. The Purchase Price shall be subject to
adjustment from time to time as hereinafter provided. Upon each adjustment of
the Purchase Price, the holder of this Warrant shall thereafter be entitled to
purchase, at the Purchase Price resulting from such adjustment, the number of
shares obtained by multiplying the Purchase Price in effect immediately prior
to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
Purchase Price resulting from such adjustment.
5.2 Purchase Price Adjustments. If and whenever after the
date hereof the Company shall issue or sell any shares of its capital stock
(except (a) upon exercise of one or more of the Warrants or (b) pursuant to
options, warrants, rights or similar commitments obligating the Company to
issue shares of its capital stock which are in existence as of October 12,
1999) for a consideration per share less than the Purchase Price in effect
immediately prior to the time of such issue or sale, the Purchase Price shall
be reduced to the price (calculated to the nearest $0.01) obtained by dividing
(i) an amount equal to the sum of (A) the number of shares of capital stock
outstanding, or deemed to be outstanding, immediately prior to such issue or
sale multiplied by the Purchase Price prevailing immediately prior to such
issue or sale plus (B) the consideration, if any, received by the Company upon
such issue or sale, by (ii) the total number of shares of capital stock
outstanding, or deemed to be outstanding, immediately after such issue or sale.
Notwithstanding the foregoing, no adjustment of the Purchase Price shall be
made in an amount less than $0.01 per share, but any such lesser adjustment
shall be carried forward and shall be made at the time of and together with the
next subsequent adjustment which together with any adjustments so carried
forward shall amount to $0.01 per share or more.
5.3 Option Grants. In the event that at any time after
October 12, 1999 the Company shall in any manner grant (directly, by assumption
in a merger or otherwise) any rights to subscribe for or to purchase, or any
options for the purchase of, capital stock or any securities convertible into
or exchangeable for its capital stock (such rights or options being herein
called "Options" and such convertible or exchangeable stock or securities being
herein called "Convertible Securities"), whether or not such Options or the
right to convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which capital stock is issuable upon
the exercise of such Options or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the granting of such Options,
plus the minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus, in the case of any such
Options which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
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Convertible Securities and upon the conversion or exchange thereof, by (ii) the
total number of shares of capital stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Purchase
Price in effect immediately prior to the time of the granting of such Options,
then the total number of shares of capital stock issuable upon the exercise of
such Options or upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such Options shall (as of
the date of granting such Options) be deemed to be outstanding and to have been
issued for such price per share. Except as otherwise provided in subsection
5.5, no further adjustment of the Purchase Price shall be made upon the actual
issue of such capital stock or of such Convertible Securities upon exercise of
such Options or upon the actual issue of such capital stock upon conversion or
exchange of such Convertible Securities.
5.4 Convertible Security Grants. In the event that the
Company shall in any manner issue (directly, by assumption in a merger or
otherwise) or sell any Convertible Securities (other than pursuant to the
exercise of Options to purchase such Convertible Securities covered by
subsection 5.3), whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per share for which capital stock is
issuable upon such conversion or exchange (determined by dividing (i) the total
amount received or receivable by the Company as consideration for the issue or
sale of such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of capital stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Purchase Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares of capital stock
issuable upon conversion or exchange of all such Convertible Securities shall
(as of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share, provided
that, except as otherwise provided in Section 5.5, no further adjustment of the
Purchase Price shall be made upon the actual issue of such capital stock upon
conversion or exchange of such Convertible Securities.
5.5 Effect of Alteration to Option or Convertible Security
Terms. In connection with any change in, or the expiration or termination of,
the purchase rights under any Option or the conversion or exchange rights under
any Convertible Securities, the following provisions shall apply:
(d) If the purchase price provided for in any Option referred
to in subsection 5.3, the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities referred
to in subsection 5.3 or 5.4, or the rate at which any Convertible
Securities referred to in subsection 5.3 or 5.4 are convertible into
or exchangeable for capital stock shall change at any time (including,
but not limited to, changes under or by reason of provisions designed
to protect against dilution), then the Purchase Price in effect at the
time of such change shall forthwith be increased or decreased to the
Purchase Price which would be in effect immediately after such change
had such Options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially granted,
issued or sold.
(e) On the partial or complete expiration of any Options or
termination of any right to convert or exchange Convertible
Securities, the Purchase Price then in effect hereunder shall
forthwith be increased or decreased to the Purchase Price which would
be in effect at the time of such expiration or termination had such
Options or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been
issued.
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5.6 Dividends of Capital Stock, Options or Convertible
Securities. In the event that the Company shall declare a dividend or make any
other distribution upon any stock of the Company payable in capital stock,
Options or Convertible Securities, then any capital stock, Options or
Convertible Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued or sold without
consideration unless such dividend or distribution is subject to Section 3
hereof.
5.7 Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold by the Company, or shall become subject to
issue upon the conversion or exchange of any stock (or Other Securities) of the
Company (or any other issuer of Other Securities or any other person referred
to in Section 4) or to subscription, purchase or other acquisition pursuant to
any rights or options granted by the Company (or such other issuer or person),
for a consideration per share such as to dilute the purchase rights evidenced
by this Warrant, the computations, adjustments and readjustments provided for
in this Section 5 with respect to the Purchase Price and the number of shares
of Common Stock issuable upon exercise of this Warrant shall be made as nearly
as possible in the manner so provided and applied to determine the amount of
Other Securities from time to time receivable on the exercise of this Warrant,
so as to protect the holders of this Warrant against the effect of such
dilution.
5.8 Stock Splits and Reverse Splits. In the event that the
Company shall at any time subdivide its outstanding shares of Common Stock into
a greater number of shares, the Purchase Price in effect immediately prior to
such subdivision shall be proportionately reduced and the number of Warrant
Shares purchasable pursuant to this Warrant immediately prior to such
subdivision shall be proportionately increased, and conversely, in the event
that the outstanding shares of Common Stock shall at any time be combined into
a smaller number of shares, the Purchase Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced. Except as provided in this
subsection 5.8, no adjustment in the Purchase Price and no change in the number
of Warrant Shares purchasable shall be made under this Section 5 as a result of
or by reason of any such subdivision or combination.
5.9 Determination of Consideration Received. For purposes of
this Section 5, the amount of consideration received by the Company in
connection with the issuance or sale of capital stock, Options or Convertible
Securities shall be determined in accordance with the following:
(f) In the event that shares of capital stock, Options or
Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
payable to the Company therefor, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or
allowed by the Company in connection therewith.
(g) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued or sold for a consideration
other than cash, the amount of the consideration other than cash
payable to the Company shall be deemed to be the fair value of such
consideration as reasonably determined by the Board of Directors of
the Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company
in connection therewith.
(h) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued in connection with any merger
in which the Company is the surviving corporation,
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the amount of consideration therefor shall be deemed to be the fair
value as reasonably determined by the Board of Directors of the
Company of such portion of the assets and business of the
non-surviving corporation as such Board shall determine to be
attributable to such capital stock, Options or Convertible Securities,
as the case may be.
(i) In the event that any capital stock, Options and/or
Convertible Securities shall be issued in connection with the issue
and sale of other securities or property of the Company, together
comprising one integral transaction in which no specific consideration
is allocated to such capital stock, Options or Convertible Securities
by the parties thereto, such capital stock, Options and/or Convertible
Securities shall be deemed to have been issued for such consideration
as determined in good faith by the Board of Directors of the Company.
5.10 Record Date as Date of Issue or Sale. In the event that
at any time the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them (i) to receive a dividend or other
distribution payable in capital stock, Options or Convertible Securities, or
(ii) to subscribe for or purchase capital stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue
or sale of the shares of capital stock, Options or Convertible Securities
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right of
subscription or purchase, as the case may be; provided, nothing contained
herein will be deemed to require the Company to issue or deliver such capital
stock, Options or Convertible Securities until the capital stock, Options or
Convertible Securities which are the subject of any such dividend, distribution
or subscription right are issued or delivered to the holders of Common Stock.
5.11 Treasury Stock. The number of shares of capital stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares (other than
their cancellation without reissuance) shall be considered an issue or sale of
capital stock for the purposes of this Section 5.
5.12 Certain Issues of Capital Stock Excepted. Anything
herein to the contrary notwithstanding, the Company shall not be required to
make any adjustment to the Purchase Price in the case of the issuance from time
to time after the date hereof of shares of capital stock reserved by the
Company for the grant and exercise of (a) options to purchase capital stock or
(b) rights under the Company's current employee stock purchase plan, in each
case, granted to directors, officers, employees, or consultants of the Company
pursuant to arrangements, plans or contracts approved by the Board of Directors
of the Company.
6. No Dilution or Impairment. The Company will not, by amendment
of its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holders of
this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value or
stated value of any shares of stock receivable on the exercise of this Warrant
above the amount payable therefor on such exercise, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of stock on the exercise
of this Warrant, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate
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with or merge into the Company (if the Company is not the surviving person),
unless such other person shall expressly assume in writing and become bound by
all the terms of this Warrant.
7. Certificate as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock (or Other Securities) issuable on
the exercise of this Warrant, the Company at its expense will promptly cause
its chief financial officer to compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based, including a statement of (a)
the consideration received or receivable by the Company for any additional
shares of capital stock (or, to the extent not constituting Common Stock, Other
Securities) issued or sold or deemed to have been issued or sold, (b) the
number of shares of each class or series of capital stock outstanding or deemed
to be outstanding, and (c) the Purchase Price and the number of shares of
Common Stock (and, to the extent not constituting Common Stock, Other
Securities) to be received upon exercise of this Warrant, in effect immediately
prior to such issue or sale and as adjusted and readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate to the
holder of this Warrant, and will, on the written request at any time of the
holder of this Warrant, furnish to such holder a like certificate setting forth
the Purchase Price at the time in effect and showing how it was calculated.
8. Registration Rights. The holder(s) of this Warrant and any
other Warrants issued pursuant to the terms hereof from time to time shall be
entitled to the registration rights in respect thereof as provided in the
Registration Rights Agreement between the Company and i2, dated October 12,
1999, in accordance with the terms thereof.
9. Notices of Record Date, etc. In the event of:
(j) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(k) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company to or consolidation or merger of the Company with or into any
other person, or
(l) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, (ii)
the date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock (or, to the extent not constituting Common Stock, Other
Securities) shall be entitled to exchange their shares of Common Stock (or, to
the extent not constituting Common Stock, Other Securities) for securities or
other property deliverable on such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or other
securities, or rights or options with respect
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thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least ten Business
Days prior to the date specified in such notice on which any such action is to
be taken.
10. Reservation of Stock, etc. Issuable on Exercise of Warrants.
The Company will at all times reserve and keep available, solely for issuance
and delivery on the exercise of this Warrant, all shares of Common Stock (or,
to the extent not constituting Common Stock, Other Securities) from time to
time issuable upon the exercise of this Warrant.
11. Exchange of Warrants. On surrender for exchange of this
Warrant, properly endorsed, to the Company, the Company at its expense will
issue and deliver to or on the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (on
payment by such holder of any applicable transfer taxes) may direct, filling in
the aggregate on the face or faces thereof the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered; provided,
however, that in no event will the Company be obligated to recognize or permit
any transfer of this Warrant that would result in the assignor or any assignee
receiving a Warrant exercisable with respect to 25,000 or fewer shares of
Common Stock.
12. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
13. Remedies. [Deleted.]
14. Negotiability, etc. This Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof
consents and agrees, subject to the limitation on transfer set forth in Section
11:
(m) title to this Warrant may be transferred by endorsement
(by the holder hereof executing the form of assignment at the end
hereof) and delivery in the same manner as in the case of a negotiable
instrument transferable by endorsement and delivery; and
(n) any person in possession of this Warrant properly
endorsed for transfer to such person (including endorsed in blank) is
authorized to represent himself as absolute owner hereof and is
empowered to transfer absolute title hereto by endorsement and
delivery hereof to a bona fide purchaser hereof for value; each prior
taker or owner waives and renounces all of his equities or rights in
this Warrant in favor of each such bona fide purchaser, and each such
bona fide purchaser shall acquire absolute title hereto and to all
rights represented hereby. Nothing in this paragraph (b) shall create
any liability on the part of the Company beyond any liability or
responsibility it has under law.
15. Notices, etc. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid at such address as may have been furnished
to the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
10
11
16. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the internal substantive laws of the State of
Texas, without regard to the conflicts of law principles thereof and, to the
maximum extent practicable, will be deemed to call for performance in Dallas
County, Texas. The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof. The invalidity
or unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provision.
17. Expiration. The right to exercise this Warrant shall expire
at 5:00 p.m. (Dallas, Texas time), October 12, 2001.
18. Warrant Holders Not Deemed Shareholders. No holder of this
Warrant shall, as such, be entitled to vote or to receive dividends or be
deemed the holder of Common Stock or, to the extent not constituting Common
Stock, Other Securities that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or for the election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issue or reclassification of stock, change
of par value or change of stock to no par value, consolidation, merger or
conveyance or otherwise), or to receive notice of meetings, or to receive
dividends or subscription rights, until such holder shall have exercised this
Warrant and been issued Common Stock or, to the extent not constituting Common
Stock, Other Securities in accordance with the provisions hereof.
11
12
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
THE viaLINK COMPANY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _____________
shares (the "Shares") of Common Stock of The viaLink Company and herewith makes
payment of $________ therefor, and requests that the certificate for such
Shares be issued in the name of, and delivered to
______________________________, federal taxpayer identification number
______________________, whose address is ____________________
_________________________________________.
In connection with the exercise of this Warrant, the undersigned
represents and warrants as follows:
(o) The undersigned is purchasing the Shares for the account
of the undersigned and not as a nominee or agent, and the undersigned
has no present intention of granting any participation in the same,
and does not have any contract, undertaking, agreement or arrangement
with any person to grant participation to such person or to any third
person, with respect to any of such Shares;.
(p) The undersigned has received or has had full access to
all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Shares. The
undersigned has had an opportunity to ask questions of and receive
answers from the Company and to obtain additional information (to the
extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify any
information furnished to undersigned or to which the Company has
access.
(q) The undersigned understands that the Shares are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the
"Securities Act") only in certain limited circumstances. In this
connection, the undersigned represents that it is familiar with
Securities and Exchange Commission ("SEC") Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by
the Securities Act.
(r) The undersigned is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(s) The undersigned agrees not to offer, sell, exchange,
transfer, pledge or otherwise dispose of any of the Shares unless at
that time either:
(1) such transaction is permitted pursuant to the
provisions of Rule 144 under the Securities Act or
another exemption from registration under the
Securities Act and all applicable state securities
laws;
(2) a registration statement under the Securities Act
and all applicable state securities laws covering
such securities proposed to be sold, transferred or
otherwise disposed of, describing the manner and
terms of the
13
proposed sale, transfer or other disposition, and
containing a current prospectus, is filed with the
SEC and all applicable state securities law agencies
and made effective under the Securities Act and all
applicable state securities laws; or
(3) an authorized representative of the SEC and all
applicable state securities agencies shall have
rendered written advice to undersigned (with a copy
thereof and of all other related communications
delivered to the Company) to the effect that the SEC
and/or such state securities agencies will take no
action, or that the staff of the SEC and/or such
state securities agencies will recommend that the
SEC and such state securities agencies, as
applicable, take no action, with respect to the
proposed offer, sale, exchange, transfer, pledge or
other disposition if consummated.
(t) All certificates representing the Shares and any
certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend that such securities may
only be sold or disposed of in accordance with (i) the provisions of
the Securities Act, the rules and regulations thereunder and any
applicable state securities laws, (ii) pursuant to an effective
registration statement or (iii) pursuant to an exemption from the
registration/qualification requirements of the Securities Act and any
applicable state securities laws. The Company, at its reasonable
discretion, may cause stop transfer orders to be placed with its
transfer agent with respect to the certificates for the Shares but not
as to the certificates for any part of such Shares as to which said
legend is no longer required.
Dated:
--------------------- --------------------------------------------
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------------
(Address)
Signed in the presence of:
--------------------------
---------------------------
2
14
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _____________ _________________________, federal taxpayer
identification number ___________, whose address is
___________________________________________________, the right represented by
the within Warrant to purchase ___________ shares of Common Stock of The
viaLink Company to which the within Warrant relates, and appoints
___________________________ Attorney to transfer such right on the books of The
viaLink Company with full power of substitution in the premises.
Dated:
--------------------- --------------------------------------------
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------------
(Address)
Signed in the presence of:
--------------------------
3
15
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
THE viaLINK COMPANY
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
[SIGNATURE PAGE TO WARRANT]