EXHIBIT 4.1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGEFinancial Printing GroupFinancial Printing Group
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION UNDER
SUCH ACT AND APPLICABLE LAWS, OR IN A TRANSACTION WHICH, IN THE OPINION OF
COUNSEL TO THE HOLDERS OF THIS WARRANT (WHICH COUNSEL SHALL BE SATISFACTORY TO
THE COMPANY), QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE SECURITIES ACT AND
THE RULES PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION THEREUNDER.
THIS WARRANT IS NOT TRANSFERABLE TO ANY PERSON OR ENTITY OTHER THAN AN ENTITY
AFFILIATED WITH ERNST & YOUNG U.S. LLP, AND THEN ONLY IN COMPLIANCE WITH THE
PROVISIONS HEREOF.
No. EY-001 May 3, 1999
$8.00 WARRANT TO PURCHASE COMMON STOCK
OF
THE VIALINK COMPANY
62,500 Shares Expiring as set forth in Section 1(a) hereof
and
187,500 Shares Expiring Unless Notice of Exercisability is Delivered Pursuant to
Section 1(b) hereof by March 3, 2002
This certifies that, for value received, ERNST & YOUNG U.S. LLP
("E&Y"), or registered assigns (the "Holder"), during the term of this Warrant
--- ------
as set forth in Section 1, is entitled to purchase from THE VIALINK COMPANY, an
Oklahoma corporation (including the Delaware corporation resulting from its
reincorporation, the "Company"), for value received, up to TWO HUNDRED FIFTY
-------
THOUSAND (250,000) shares (the "Warrant Shares") of the Common Stock of the
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Company, $0.001 par value (the "Common Stock"), upon surrender hereof, at the
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principal office of the Company referred to below, with a duly executed Notice
of Exercise in the form attached, and simultaneous payment therefor in lawful
money of the United States, at the Exercise Price set forth in Section 2. The
number, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided herein. The term "Warrant" as used herein shall
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include this Warrant, and any warrants delivered in substitution or exchange
therefor as provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth
---------------
herein, this Warrant shall be exercisable as follows:
(a) with respect to the initial tranche of 62,500 Warrant Shares, in whole
but not in part with respect to such shares, at any time on or before 5:00
p.m. Oklahoma City time on the date which is five (5) days after the
effective date of the registration statement relating to the resale of the
62,500 Warrant Shares under this Section 1(a), after which time this
Warrant shall not thereafter be exercisable with respect to such Warrant
Shares; and
(b) with respect to the remaining 187,500 Warrant Shares, in whole or in
part consisting of not less than 62,500 Warrant Shares, at any time and
from time to time sixty-one (61) days after the giving of the notice
specified in subsection 3(a)(i) below, which shall in any event be given on
or before 5:00 p.m. Oklahoma City time on March 3, 2002, otherwise this
Warrant shall not thereafter be exercisable.
2. Exercise Price. The purchase price per share for the Common Stock
--------------
purchased under this Warrant shall be EIGHT AND NO/100 DOLLARS ($8.00) (the
"Exercise Price"), subject to adjustment as provided under Section 14(a).
3. Exercise of Warrant.
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(a) Method of Exercise. The purchase rights represented by this Warrant
------------------
are exercisable by the Holder as follows:
(i) in the case of Section 1(a) above, by delivery of a Notice of
Exercise, the form of which is attached hereto as Exhibit A, duly completed
---------
and executed on behalf of the Holder, at the office of the Company, and
upon payment of the aggregate Exercise Price of $500,000 with respect to
such Warrant Shares in cash or by check payable to the Company; and
(ii) in the case of Section 1(b) above, on the sixty-first (61st) day
following the delivery of a Notice of Exercisability in the form attached
hereto as Exhibit B by the holder thereof and thereafter at any time
---------
following the surrender of this Warrant and delivery of a Notice of
Exercise, the form of which is attached hereto as Exhibit A, including the
---------
undertaking pursuant to paragraph (c) below, duly completed and executed on
behalf of the Holder, at the office of the Company, and upon payment at or
prior to such 61st day equal to the product of the Exercise Price
multiplied by the number of shares designated by the Holder in the Notice
of Exercise in cash or by check payable to the Company.
(b) Other Matters. This Warrant shall be deemed to have been exercised
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immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive
2
the shares of Common Stock issuable upon such exercise shall be treated for
all purposes as the holder of record of such shares as of the close of
business on such date. As promptly as practicable on or after such date
and in any event within ten (10) days thereafter, the Company at its
expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of shares
issued upon such exercise. In the event that this Warrant is exercised in
part, the Company at its expense will execute and deliver a new Warrant of
like tenor exercisable for the remaining number of shares for which this
Warrant may then be exercised.
(c) Special Transfer Restriction. Upon and as a condition to any exercise
----------------------------
of all or any part of the Warrant Shares exercisable under Section 1(b)
above, Holder shall agree that notwithstanding any other rights it may
have, including with respect to the right to require registration of such
shares for resale pursuant to the terms of any registration rights
agreement between the Company and Holder, Holder will hold and not sell or
offer for sale to any third party any of such shares, nor request any
registration of the resale of such shares, for a period of six months after
the date of such exercise.
4. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. No Rights as Stockholder. This Warrant shall not entitle its Holder
------------------------
to any of the rights of a stockholder of the Company.
7. Transfer of Warrant.
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(a) Warrant Register. The Company will maintain a register (the "Warrant
---------------- -------
Register") containing the names and addresses of the Holder or Holders.
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Any Holder of this Warrant or any portion thereof may change his or her
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to
such Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the
3
Company may treat the Holder as shown on the Warrant Register as the
absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b) Transferability and Nonnegotiability of Warrant. THIS WARRANT MAY NOT
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BE TRANSFERRED OR ASSIGNED IN WHOLE OR IN PART, EXCEPT TO AN ENTITY
AFFILIATED WITH E&Y WHO SHALL SIMILARLY AGREE TO BECOME BOUND HEREBY, AND
IN ANY EVENT MAY NOT BE TRANSFERRED WITHOUT COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS BY THE TRANSFEROR AND THE TRANSFEREE
(INCLUDING THE DELIVERY OF INVESTMENT REPRESENTATION LETTERS AND LEGAL
OPINIONS REASONABLY SATISFACTORY TO THE COMPANY). Subject to compliance
with the foregoing and the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, title to this
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Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a
negotiable instrument transferable by endorsement and delivery. The Holder
or owner hereof by the taking hereof consents and agrees that 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 as
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.
(c) Exchange of Warrant Upon a Transfer. On surrender of this Warrant for
-----------------------------------
exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Securities
Act and with the limitations on assignments and transfers contained in this
Section 7, the Company at its expense shall issue to or on the order of the
Holder a new warrant or warrants of like tenor, in the name of the Holder
or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable upon exercise hereof.
(d) Compliance with Securities Laws.
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(iii) The Holder of this Warrant, by acceptance hereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account for
investment, and that the Holder will not offer, sell or otherwise
4
dispose of this Warrant or any shares of Common Stock to be issued upon
exercise hereof or except under circumstances that will not result in a
violation of the Securities Act or any state securities laws. Upon
exercise of this Warrant, the Holder shall, if requested by the Company,
confirm in writing, by executing the form attached as Schedule 1 to Exhibit
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A hereto, that the shares of Common Stock so purchased are being acquired
-
for investment, and not with a view toward distribution or resale in
violation of applicable securities laws.
(iv) All shares of Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following form (in
addition to any legend required by state securities laws and any other
agreement between Holder and the Company:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL TO THE
COMPANY OR THE HOLDERS OF THIS WARRANT (WHICH COUNSEL SHALL BE SATISFACTORY
TO THE COMPANY), QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE SECURITIES
ACT AND THE RULES PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
(v) In connection with the issuance of this Warrant, the Holder
specifically represents to the Company by acceptance of this Warrant as
follows:
(A) The Holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company
sufficient to reach an informed and knowledgeable decision to acquire
this Warrant. The Holder is acquiring this Warrant for its own
account for investment purposes only and not with a view to, or for
the resale in connection with, any "distribution" thereof for purposes
of the Securities Act.
(B) The Holder understands that this Warrant has not been
registered under the Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona
fide nature of the Holder's investment intent as expressed herein. In
this connection, the Holder understands that, in the view of the
Securities and Exchange Commission (the "SEC"), the statutory basis
---
for such exemption may be unavailable if the Holder's representation
was predicated solely upon a
5
present intention to hold the Warrant for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until
an increase or decrease in the market price of the Warrant, or for a
period of one year or any other fixed period in the future.
(C) The Holder further understands that this Warrant must be
held indefinitely unless subsequent registered under the Securities
Act and any applicable state securities laws, or unless exemptions
from registration are otherwise available. Moreover, the Holder
understands that the Company is under no obligation to register this
Warrant.
(D) The Holder is aware of the provisions of Rule 144 and 144A,
promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such
issuer), in a non-public offering subject to the satisfaction of
certain conditions, if applicable, including, among other things: The
availability of certain public information about the Company, the
resale occurring not less than one year after the party has purchased
and paid for the securities to be sold; the sale being made through a
broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934, as amended) and the amount of
securities being sold during any three-month period not exceeding the
specified limitations stated therein.
(E) The Holder further understands that at the time it wishes to
sell this Warrant there may be no public market upon which to make
such a sale, and that, even if such a public market then exists, the
Company may not be satisfying the current public information
requirements of Rule 144 and 144A, and that, in such event, the Holder
may be precluded from selling this Warrant under Rule 144 and 144A
even if the two-year minimum holding period had been satisfied.
(F) The Holder further understands that in the event all of the
requirements of Rule 144 and 144A are not satisfied, registration
under the Securities Act, compliance with Regulation A, or some other
registration exemption will be required; and that, not withstanding
the fact that Rule 144 and 144A are not exclusive, the Staff of the
SEC has expressed its opinion that persons proposing to sell private
placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 and 144A will have a substantial burden of
proof in establishing that an exemption from registration is available
for such offers or sales, and that such persons and their respective
brokers who participate in such transactions do so at their own risk.
8. Reservation of Stock. The Company covenants that during the term this
--------------------
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common
6
Stock a sufficient number of Warrant Shares to provide for the issuance of
Common Stock upon the exercise of this Warrant and, from time to time, will take
all steps necessary to amend its corporate charter, if necessary, to provide
sufficient reserves of Warrant Shares issuable upon exercise of the Warrant.
The Company further covenants that all Warrant Shares that may be issued upon
the exercise of this Warrant will be free from all taxes, liens and charges
except for restrictions on transfer and any taxes, liens and charges imposed on
the Holder unrelated to the Company's issuance of shares upon exercise of the
Warrant.
9. Representations and Warranties. The Company represents and warrants
------------------------------
to the holder of this Warrant as follows:
(a) Authorization. This Warrant has been duly authorized and executed by
-------------
the Company and is a valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors
and the rules of law or principles at equity governing specific
performance, injunctive and other equitable remedies;
(b) Reservation; Issuance. The Warrant Shares have been duly authorized
---------------------
and reserved for issuance by the Company and, when issued in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable;
(c) No Conflicts. The execution and delivery of this Warrant are not, and
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the issuance of the Warrant Shares upon exercise of this Warrant in
accordance with the terms hereof will not be, inconsistent with the
Company's charter or bylaws; do not and will not contravene any law,
governmental rule or regulation, judgment or order applicable to the
Company; and do not and will not conflict with or contravene any provision
of, or constitute a default under, any indenture, mortgage, contract or
other instrument of which the Company is a party or by which it is bound or
require the consent or approval of, the giving of notice to, the
registration or filing with or the taking of any action in respect of or
by, any federal, state or local government authority or agency or other
person, except for the filing of notices pursuant to federal and state
securities laws, which filings will be effected by the time required
thereby, and the filing of any registration statements required to be filed
by the Company pursuant to any registration rights granted to Holder by the
Company.
(d) No Litigation. There are no actions, suits, audits, investigations or
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proceedings pending or, to the knowledge of the Company, threatened against
the Company in any court or before any governmental commission, board or
authority which, if adversely determined, will have a material adverse
effect on the ability of the Company to perform its obligations under this
Warrant.
7
10. Notices. All such notices, advices and communications hereunder shall
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be deemed to have been received (i) in the case of personal delivery, on the
date of such delivery and (ii) in the case of mailing (which shall be effected
by registered or certified mail, postage prepaid), on the third business day
following the date of such mailing.
11. Amendments. Any term of this Warrant may be amended with the written
----------
consent of the Company and all of the Holders of this Warrant.
12. Adjustments. The Exercise Price and the number of shares purchasable
-----------
hereunder are subject to adjustment from time to time as follows:
(a) Adjustment for Dividends in Other Stock, Property, etc.;
--------------------------------------------------------
Reclassification, etc. In case at any time while this Warrant is
----------------------
outstanding and unexpired, the holders of Common Stock shall have received,
or (on or after the record date fixed for the determination of stockholders
eligible to receive) shall have become entitled to receive, without payment
therefor,
(i) other or additional stock or other securities or property (other
than cash) by way of dividend; or
(ii) other or additional stock or other securities or property by way
of stock split, spin off, split up, reclassification, recapitalization,
combination of shares or similar corporate rearrangement;
then and in each such case the Holder, upon the exercise hereof, shall be
entitled to receive the amount of stock and other securities and property
which such Holder would hold on the date of such exercise if on the
original issue date he 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 original issue date to and including
the date of such exercise, retained such shares and all such other or
additional stock and other securities and properties receivable by him as
aforesaid during such period, giving effect to all adjustments called for
during such period by this Section 14.
----------
(b) No Dilution or Impairment. The Company will not, by amendment to its
-------------------------
certificate of incorporation or through any reorganization, sale 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 Holder of the Warrant. Without limiting the generality of
the foregoing, the Company (i) will not increase the par value of any
shares of stock receivable upon the exercise of the Warrant above the
amount payable therefor upon such exercise; and (ii) will take all such
action as
8
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock upon the full
exercise of the Warrant.
(c) Notices of Record Date, etc. In the event of:
---------------------------
(i) 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 (other than a cash 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
(ii) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any conveyance
of all or substantially all the assets of the Company to or consolidation
or merger of the Company with or into any other corporation; or
(iii) 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 the
Holder a notice specifying (A) 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; (B) the date on which any
such reorganization, reclassification, conveyance, 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 other
securities) shall be entitled to exchange their shares of Common Stock (or other
securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, conveyance, consolidation,
merger, dissolution, liquidation, or winding up; and (C) 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 15 days prior to
the date therein specified.
13. Miscellaneous.
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(a) Successors and Assigns. This Warrant and the rights evidenced hereby
----------------------
shall inure to the benefit of and be binding upon the successors of the
Company and the Holder and their respective permitted assigns. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant, and shall be enforceable by any
such Holder.
9
(b) Headings. The headings of the Sections of this Warrant are for the
--------
convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
(c) Choice of Law. This Warrant and the performance or breach thereo
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shall be governed by and interpreted as to substantive matters in
accordance with the applicable laws of the State of Oklahoma (excluding its
choice of law rules), except that upon the Company's reincorporation as a
Delaware corporation, if effected, the Warrant shall be governed under
Delaware law.
* * * *
10
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: May __, 1999 The Company:
-----------
THE VIALINK COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
Address: 00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
EXHIBIT A
NOTICE OF EXERCISE
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(1) The undersigned hereby irrevocably elects to purchase [Section 1(b)
exercises only: on the date which is sixty-one (61) days after the date of this
Notice] ___________ shares of Common Stock of The viaLink Company, pursuant to
the terms of the attached Warrant, and tenders herewith payment in full of the
purchase price for such shares.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired for investment
and not with a view to, or for resale in connection with, the distribution
thereof and that the undersigned has no present intention of distributing or
reselling such shares. In support thereof, the undersigned has executed an
Investment Representation Statement attached hereto as Schedule 1.
[Section 1(b) exercises only: (3) The undersigned further understands that, in
addition to any other restrictions imposed by applicable securities law, the
undersigned must hold the shares being acquired for at least six (6) months and
hereby agrees not to offer or sell or to request any registration with respect
to resale of such shares until the expiration of such six-month period.]
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name or names as
are specified below:
____________________________________
(Name)
____________________________________
____________________________________
(address)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned.
ERNST & YOUNG U.S. LLP
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Schedule 1
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INVESTMENT REPRESENTATION STATEMENT
To: The viaLink Company
Security: Common Stock issuable upon exercise of $8.00 Warrant dated May
__, 1999.
In connection with the purchase of the above-listed securities (the
"Securities"), the undersigned (the "Purchaser") represents to the Company as
---------- ---------
follows:
(a) The Purchaser is aware of the Company business affairs and financial
condition, and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. The Purchaser is
purchasing the Securities for its own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended (the "Act").
---
(b) The Purchaser understands that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of the
Purchaser's investment intent as expressed herein. In this connection, the
Purchaser understands that, in the view of the Securities and Exchange
Commission ("SEC"), the statutory basis for such exemption may be unavailable if
---
the Purchaser's representation was predicated solely upon a present intention to
hold these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future.
(c) The Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, the Purchaser
understands that the Company is under no obligation to register the Securities
except as set forth in the Warrant under which the Securities are being
acquired. In addition, the Purchaser understands that the certificate evidencing
the Securities will be imprinted with the legend referred to in the Warrant
under which the Securities are being purchased.
(d) The Purchaser is aware of the provisions of Rule 144 and 144A,
promulgated under the Securities Act, which, in substance, permit limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, if applicable, including,
among other things: The availability of certain public information about the
Company, the resale occurring not less than one year after the party has
purchased and paid for the securities to be sold; the sale being made through a
broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the amount of
securities being sold during any three-month period not exceeding the specified
limitations stated therein.
(e) The Purchaser further understands that at the time it wishes to sell
the Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144 and 144A, and
that, in such event, the Purchaser may be precluded from selling the Securities
under Rule 144 and 144A even if the two-year minimum holding period had been
satisfied.
(f) The Purchaser further understands that in the event all of the
requirements of Rule 144 and 144A are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
Purchaser: _______________________
Date: ____________________________
EXHIBIT B
NOTICE OF EXERCISABILITY
------------------------
Pursuant to the terms of the attached warrant, the undersigned hereby
gives notice to The viaLink Company, Inc. that the warrant with respect to
_____________ of the 187,500 warrant shares described in Section 1(b) thereof
will become exercisable within sixty-one (61) days after the date hereof.
Dated:
ERNST & YOUNG U.S. LLP
By:
-------------------------------
Name:
Title:
ASSIGNMENT FORM
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FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ____________________ to make
such transfer on the books of The viaLink Company, maintained for the purpose,
with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will not
offer, sell or otherwise dispose of this Warrant or any shares of stock to be
issued upon exercise hereof except in compliance with Securities Act of 1933, as
amended, or any state securities laws. Further, the Assignee has acknowledge
that upon exercise of this Warrant, the Assignee shall, if requested by the
Company, confirm in writing, in a form satisfactory to the Company, that the
shares of stock so purchased are being acquired for investment and not with a
view toward distribution or resale.
Signature:_______________________________________
Name of Holder:__________________________________
Name of Authorized Representative,
if a legal entity:______________________________
Title of Representative:_________________________
Date:____________________________________________
