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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE VIALINK COMPANY
AND
MILLENNIUM PARTNERS, L.P.
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TABLE OF CONTENTS
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
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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
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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.
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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,
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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
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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,
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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;
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(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
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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 0000 Xxx) 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 0000 Xxx) 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 0000 Xxx) 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
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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 0000 Xxx) 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
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxxx & Associates, P.C.
000 X. Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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. Xxxxxx Xxxxxx
------------------------
J. Xxxxxx Xxxxxx
Chief Financial Officer
HOLDER:
MILLENNIUM PARTNERS, L.P.
Millennium Management L.L.C.
General Partner
By: /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: CAO
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