EXHIBIT 99.1
VOID AFTER 5:00 P.M. CENTRAL STANDARD TIME ON ,
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NO.
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Right to Purchase Shares of Common Stock, par value $.001 per share
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Date: , 2001
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THE VIALINK COMPANY
WARRANT
THIS CERTIFIES THAT, for value received, ______________________ (the "Initial
Holder," and together with any transferees as permitted under this Series A
Warrant (this "Warrant"), the "Holder"), or its registered assigns, is entitled
to purchase from THE VIALINK COMPANY, a Delaware corporation (the "Company"), at
any time or from time to time during the period specified in Section 2 hereof,
______________ fully paid and nonassessable shares of the Company's common
stock, par value $.001 per share (the "Common Stock"), at an initial exercise
price of $_______ per share (the "Exercise Price"). The term "Warrants" means
this Warrant.
This Warrant is subject to the following terms, provisions, and conditions:
1. Mechanics of Exercise.- Subject to the provisions hereof, including, without
limitation, the limitations contained herein, this Warrant may be exercised as
follows:
(a) Manner of Exercise. This Warrant may be exercised by the Holder, in whole or
in part, by the surrender of this Warrant (or evidence of loss, theft,
destruction or mutilation thereof), together with a completed exercise agreement
in the Form of Exercise Agreement attached hereto as Exhibit 1 (the "Exercise
Agreement"), to the Company at the Company's principal executive offices (or
such other office or agency of the Company as it may reasonably designate by
notice to the Holder), and upon payment to the Company in cash, by certified or
official bank check or by wire transfer for the account of the Company, of the
Exercise Price for the Warrant Shares specified in the Exercise Agreement.
Notwithstanding anything in the foregoing which may be to the contrary, the
exercise shall become effective and the Warrant Shares so purchased shall be
deemed to be issued to the Holder or Holder's designees, as the record owner of
such shares, as of the date on which the completed Exercise Agreement is
delivered to the Company, so long as this Warrant and payment of Exercise Price
is delivered to the Company within three (3) business days after such date.
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(b) Issuance of Certificates. Subject to Section 1(c), certificates for the
Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the Holder within a
reasonable time, not exceeding three (3) business days, after this Warrant shall
have been so exercised (the "Delivery Period"). The certificates so delivered
shall be in such denominations as may be requested by the Holder and shall be
registered in the name of Holder or such other name as shall be designated by
such Holder; provided, however, if any certificate for Warrant Shares is to be
issued in a name other than that in which the Warrant surrendered in exchange
therefor is registered, it shall be a condition of the issuance thereof that the
Warrant so surrendered is properly endorsed and otherwise in proper form for
transfer and that the person requesting such exchange will pay to the Company
any transfer or other taxes required by reason of the issuance of a certificate
for shares of the Company's Common Stock in any name other than that of the
registered Holder of the Warrant surrendered, or establish to the satisfaction
of the Company that such tax has been paid or is not payable. If this Warrant
shall have been exercised only in part, then, unless this Warrant has expired,
the Company shall, at its expense, at the time of delivery of such certificates,
deliver to the Holder a new Warrant representing the number of shares with
respect to which this Warrant shall not then have been exercised. In lieu of
delivering physical certificates representing the Common Stock issuable upon the
exercise of this Warrant, upon request of the Holder, the Company shall use its
commercially reasonable efforts to cause its transfer agent to electronically
transmit the Common Stock issuable upon exercise to the Holder by crediting the
account of the Holder's prime broker with DTC through its Deposit Withdrawal
Agent Commission ("DWAC") system or other electronic delivery system selected by
the Holder.
(c) Exercise Disputes. In the case of any dispute with respect to an exercise,
the Company shall promptly issue such number of shares of Common Stock as are
not disputed in accordance with Section 1(b) hereof.
2. Period of Exercise. This Warrant is exercisable at any time or from time to
time on or after the date hereof and before 5:00 P.M., Central Standard Time on
the ____ (___) anniversary of the date hereof (the "Exercise Period").
3. Certain Agreements of the Company. The Company hereby covenants and agrees as
follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid, and
non-assessable and free from all taxes, liens, claims and encumbrances.
(b) Reservation of Shares. During the Exercise Period, the Company shall at all
times have authorized, and reserved for the purpose of issuance upon exercise of
this Warrant, a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant, without limitation of the Company's obligation to have
authorized and reserved shares of Common Stock to provide for conversion of
shares of Series A Preferred Stock of the Company.
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(c) Certain Actions Prohibited. The Company will not, by amendment of its
charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such actions as may reasonably be requested by the Holder of this
Warrant in order to protect the exercise privilege of the Holder of this
Warrant, consistent with the tenor and purpose of this Warrant. Without limiting
the generality of the foregoing, the Company (i) will not increase the par value
of any shares of Common Stock receivable upon the exercise of this Warrant above
the Exercise Price then in effect, and (ii) will take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock upon the exercise of this
Warrant.
4. Issue Tax. The issuance of certificates for Warrant Shares upon the exercise
of this Warrant shall be made without charge to the Holder or such shares for
any issuance tax or other costs in respect thereof, provided that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than the Holder.
5. No Rights or Liabilities as a Stockholder. This Warrant shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Company. No
provision of this Warrant, in the absence of affirmative action by the Holder to
purchase Warrant Shares, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder for the
Exercise Price or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
6. Transfer Exchange Redemption and Replacement of Warrant.
(a) Transfer. This Warrant and the rights granted to the Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed assignment in the Form of Assignment attached hereto as
Exhibit 2, at the office or agency of the Company. Until due presentment for
registration of transfer on the books of the Company, the Company may treat the
registered holder hereof as the owner and holder hereof for all purposes, and
the Company shall not be affected by any notice to the contrary. In addition,
this Warrant may be pledged, and all rights of the Holder under this Warrant may
be assigned, without further consent of the Company, to a bona fide pledgee,
subject to the provisions of this Warrant.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the office or agency of
the Company referred to below, for new Warrants, in the form hereof, of
different denominations representing in the aggregate the right to purchase the
number of shares of Common Stock which may be purchased hereunder, each of such
new Warrants to represent the right to purchase such number of shares as shall
be designated by the Holder at the time of such surrender.
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(c) Replacement of Warrant. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant or,
in the case of any such loss, theft, or destruction, upon delivery, of an
indemnity agreement reasonably satisfactory in form and amount to the Company,
or, in the case of any such mutilation, upon surrender and cancellation of this
Warrant, the Company, at its expense, will execute and deliver, in lieu thereof,
a new Warrant or Warrants, in the form hereof, in such denominations as Holder
may request representing in the aggregate the right to purchase the number of
shares of Common Stock which may be purchased hereunder. .
(d) Cancellation; Payment of Expenses. Upon the surrender of this Warrant in
connection with any transfer, exchange, or replacement as provided in this
Section 8, this Warrant shall be promptly canceled by the Company. The Company
shall pay all issuance taxes (other than securities transfer taxes) and charges
payable in connection with the preparation, execution, and delivery of Warrants.
(e) Warrant Register. The Company shall maintain, at its principal executive
offices (or such other office or agency of the Company as it may reasonably
designate by notice to the Holder), a register for this Warrant, in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
7. Notices. Any notice herein required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by confirmed
telecopy, and shall be deemed delivered at the time and date of receipt (which
shall include telephone line facsimile transmission). The addresses for such
communications shall be:
If to the Company:
The viaLink Company
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
and if to the Holder, at such address as Holder shall have provided in writing
to the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section.
8. Governing Law; Jurisdiction. This Warrant shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in the State of Delaware. The Company irrevocably
consents to the jurisdiction of the United States federal courts located in the
County of Dallas in the State of Texas in any suit or proceeding based on or
arising under this Warrant and irrevocably agrees that all claims in respect of
such suit or proceeding may be determined in such courts. The Company
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Company agrees that a final nonappealable judgment
in any such suit or proceeding shall be
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conclusive and may be enforced in other jurisdictions by suit on such judgment
or in any other lawful manner.
9. Miscellaneous. This Warrant and any provision hereof may only be amended by
an instrument in writing signed by the Company and the Holder. The descriptive
headings of the several Sections of this Warrant are inserted for purposes of
reference only, and shall not affect the meaning or construction of any of the
provisions hereof. This Warrant shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Xxxxxx and its
successors and assigns. The Holder shall notify the Company upon the assignment
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Series A Warrant to be signed by
its duly authorized officer.
THE VIALINK COMPANY
By:
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Name:
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Title:
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Exhibit 1
FORM OF EXERCISE AGREEMENT
(To be Executed by the Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably exercises the right to purchase ___________
of the shares of common stock of THE VIALINK COMPANY, a Delaware corporation
(the "Company"), evidenced by the attached Warrant, and herewith makes payment
of the Exercise Price with respect to such shares in full, all in accordance
with the conditions and provisions of said Warrant.
(i) The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
(ii) The undersigned requests that stock certificates for such shares be issued,
and a Warrant representing any unexercised portion hereof be issued, pursuant to
the Warrant in the name of the Holder (or such other person or persons indicated
below) and delivered to the undersigned (or designee(s) at the address (or
addresses) set forth below:
Date:
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Signature of Holder:
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Name of Holder (Print):
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Address:
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Exhibit 2
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee:
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Address
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No. of Shares
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and hereby irrevocably constitutes and appoints _________________ as agent
and attorney-in-fact to transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Date:
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In the presence of
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Name:
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Signature:
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Title of Signing Officer or Agent (if any):
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Address:
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Note: The above signature should
correspond exactly with the
name on the face of the
within Warrant.
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