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EXHIBIT 4.7
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-2 Right to Purchase 1,384,658
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
April 10, 2001
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 April 10, 2006, 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 1,384,658. The purchase price
per share of the Warrant Shares shall be equal to $3.75 (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 April 10, 2001, 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 HP. If HP 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 HP shall select one such
firm to appraise the fair market value of
the Common Stock and to perform the
computations involved. The determination of
such investment banking firm shall be
binding upon the Company and HP 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
April 10, 2001, 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
April 10, 2001, or Other Securities pursuant to Section 4 or
otherwise.
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.
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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, 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.
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.
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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. Adjustments for Stock Splits and Subdivisions. In the event
the Company at any time shall 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.
4. 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 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.
5. 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
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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.
6. 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
Shareholder Agreement between the Company and HP, dated February 4, 1999, as
amended on April 10, 2001 (the "Shareholder Agreement"), in accordance with the
terms thereof.
7. 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 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.
8. 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.
9. 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
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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.
10. 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.
11. Remedies. [Deleted.]
12. 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 9:
(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.
13. 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.
14. 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.
15. Expiration. The right to exercise this Warrant shall
expire at 5:00 p.m. (Dallas, Texas time), April 10, 2006.
16. 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
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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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Chief Financial Officer
and General Counsel
[SIGNATURE PAGE TO WARRANT]
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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 sale, transfer or
other disposition, and containing a current
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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:
--------------------------
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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:
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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:
------------------------------------
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(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.