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EXPLANATORY NOTE TO EXHIBIT 4.5
Exhibit 4.5 is a form of Registration Rights Agreement which we
executed as of February 2, 2001 with each of (1) Velocity Investment Partners
Ltd., (2) Societe Generale and (3) each of certain other investors listed on
Schedule 1 to the applicable Registration Rights Agreement.
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EXHIBIT 4.5
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of
February 2, 2001, by and between The viaLink Company, a Delaware corporation
(the "Company"), with headquarters located at 00000 Xxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 and __________________________. (the "Initial Purchaser").
RECITALS
A. In connection with the Securities Purchase Agreement dated of even
date herewith by and between the Company and the Initial Purchaser (the
"Securities Purchase Agreement"), the Company has agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to the Initial
Purchaser (i) shares of Series A Convertible Participating Preferred Stock of
the Company (including such Series A Convertible Participating Preferred Stock
issued pursuant to Section III. H of the Certificate of Designation (as defined
below), the "Preferred Stock"), which is convertible into shares (the
"Conversion Shares") of the Company's common stock, par value $.001 per share
(the "Common Stock") upon the terms and subject to the limitations and
conditions set forth in the Certificate of Designations, Preferences and Rights
with respect to such Preferred Stock (the "Certificate of Designation"), in the
form attached as Exhibit A to the Securities Purchase Agreement, and (ii)
Warrants (each a "Warrant" and, when take together with all of the warrants
issuable under the Securities Purchase Agreement, the "Warrants") entitling the
holder thereof to purchase the number of shares of Common Stock set forth in the
Securities Purchase Agreement (the "Warrant Shares").
B. To induce the Initial Purchaser to execute and deliver the
Securities Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws.
AGREEMENTS
NOW THEREFORE, in consideration of their respective promises and the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Initial Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) "Purchasers" means the Initial Purchaser and any
transferees or assignees who agree to become bound by the provisions of
this Agreement in accordance with Article IX hereof.
(b) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement
or Statements in compliance with the
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Securities Act and pursuant to Rule 415 under the Securities Act or any
successor rule providing for offering securities on a continuous basis
("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(c) "Registrable Securities" means the Conversion Shares
issued or issuable with respect to the Preferred Stock and the Warrant
Shares issued or issuable with respect to the Warrants (each without
regard to any limitations on conversion or exercise) and any shares of
capital stock issued or issuable, from time to time (with any
adjustments), on or in exchange for or otherwise with respect to the
Common Stock or any other Registrable Securities; provided, however,
that Registrable Securities shall not include shares of Common Stock
that (i) have previously been registered, or (ii) have otherwise been
sold to the public.
(d) "Registration Statement" means a registration statement of
the Company under the Securities Act.
1.2 Capitalized Terms. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Securities
Purchase Agreement.
ARTICLE II
REGISTRATION
2.1 Mandatory Registration. The Company shall prepare, and, on or prior
to the tenth (10th) day after the date of the First Closing (the "Filing Date"),
file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not
then available, on such form of Registration Statement as is then available to
effect a registration of all of the Registrable Securities, subject to the
consent of the Initial Purchaser (as determined pursuant to Section 11.10
hereof)) covering the resale of up to 19,879,334 shares of Common Stock. The
Registrable Securities included in the Registration Statement shall be allocated
to a Purchaser as set forth in Section 11.11 hereof. The Registration Statement
(and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided to (and subject to the approval of
(which approval shall not be unreasonably withheld or denied)) the Initial
Purchaser and its counsel prior to its filing or other submission.
2.2 Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2.1 hereof involves an underwritten offering, the
Purchasers who hold a majority in interest of the Registrable Securities subject
to such underwritten offering, with the consent of the Initial Purchaser, shall
have the right to select one legal counsel to represent the Purchasers and the
Company shall select an investment bank or banks and manager or managers to
administer the offering, which investment bank or banks or manager or managers
shall be reasonably satisfactory to the Purchasers who hold a majority in
interest of such Registrable Securities.
2.3 Payments by the Company. (a) The Company shall use its best efforts
to cause the Registration Statement required to be filed pursuant to Section 2.1
hereof to become effective as soon as practicable following the date of
Stockholder Approval (as defined in the Securities
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Purchase Agreement), but shall cause such Registration Statement to become
effective in no event later than the one hundred and twentieth (120th) day
following the First Closing (such earlier date, the "Registration Deadline"). If
the Registration Statement is not effective as required by this Section 2.3, the
Company shall thereafter continue to use its best efforts to cause such
Registration Statement to become effective. If the Registration Statement
covering the Registrable Securities required to be filed by the Company pursuant
to Section 2.1 hereof is not declared effective by the SEC on or before the
Registration Deadline (a "Registration Failure"), or if after such Registration
Statement has been declared effective by the SEC, sales of all the Registrable
Securities covered thereby cannot be made pursuant to such Registration
Statement (by reason of a stop order, the Company's failure to update the
registration statement, the failure of any post-effective amendment to the
registration statement to be promptly declared effective or any other reason
outside the control of the Purchasers) (a "Registration Suspension"), or if the
Common Stock of the Company is not listed or included for quotation on one of
the Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock
Exchange or the American Stock Exchange after being so listed or included for
quotation thereon (a "Listing Suspension"), then the Company will make payments
to the Purchasers in such amounts and at such times as shall be determined
pursuant to this Section 2.3, as partial relief for the damages to the
Purchasers by reason of any such delay in or reduction of their ability to sell
the Registrable Securities (which remedy shall not be exclusive of any other
remedies available at law or in equity).
(b) In the event of a Registration Failure, the Company shall pay to
each Purchaser an amount equal to (A) the Multiplier (as defined herein) times
(B) the Funded Amount (as defined below) with respect to such Purchaser times
(C) the number of months (prorated per day for partial months) following the
Registration Deadline prior to the date the Registration Statement filed
pursuant to Section 2.1 is declared effective by the SEC. In addition, in the
event of a Registration Suspension, the Company shall pay to Purchaser an amount
equal to (D) the Multiplier times (E) the Funded Amount with respect to such
Purchaser times (F) the number of months (prorated per day for partial months)
from (x) the date on which sales of all the Registrable Securities first cannot
be made to (y) the date on which sales of all such Registrable Securities can
again be made. In addition, in the event of a Listing Suspension, the Company
shall pay to Purchaser an amount equal to (G) the Multiplier times (H) the
Funded Amount with respect to such Purchaser times (I) the number of months
(prorated per day for partial months) from (x) the date on which listing or
quotation of the Common Stock is suspended or trading thereon is halted to (y)
the date on which the Common Stock is again so listed, quoted and traded. Such
payments shall be made in cash within five (5) days after the end of each period
that gives rise to such obligation, provided that, if any such period extends
for more than thirty (30) days, payments shall be made for each such thirty (30)
day period within five (5) days after the end of such thirty (30) day period,
each such thirty day period being counted as a month for purposes of this
Section 2.3(b).
(c) For any given date, the "Multiplier" shall mean 0.015. With respect
to the Registration Statement, the "Funded Amount" means the aggregate purchase
price of the Preferred Stock and the Warrants relating to the Common Stock
registered (or required to be registered) on such Registration Statement.
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2.4 Piggy-Back Registrations. If at any time prior to the expiration of
the Registration Period (as hereinafter defined) the Company shall file with the
SEC a Registration Statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities
(other than on Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with an acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans), then the Company shall send to each Purchaser who
has a right to have Registrable Securities covered by a Registration Statement
pursuant to this Agreement written notice of such determination and, if within
fifteen (15) days after the date of such notice, such Purchaser shall so request
in writing, the Company shall include in such Registration Statement all or any
part of the Registrable Securities such Purchaser requests to be registered,
except that if, in connection with any underwritten public offering for the
account of the Company the managing underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock which may be included in the
Registration Statement because, in such underwriter(s)' judgment, marketing or
other factors dictate such limitation is necessary to facilitate public
distribution, then the Company shall be obligated to include in such
Registration Statement only such limited portion of the Registrable Securities
with respect to which such Purchaser has requested inclusion hereunder as the
underwriter shall permit. Any exclusion of Registrable Securities shall be made
pro rata among the Purchasers seeking to include Registrable Securities, in
proportion to the number of Registrable Securities sought to be included by such
Purchasers; provided, however, that the Company shall not exclude any
Registrable Securities unless the Company has first excluded all outstanding
securities, the holders of which are not entitled to inclusion of such
securities in such Registration Statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, however, that,
after giving effect to the immediately preceding proviso, any exclusion of
Registrable Securities shall be made pro rata with holders of other securities
having the right to include such securities in the Registration Statement. No
right to registration of Registrable Securities under this Section 2.4 shall be
construed to limit any registration required under Section 2.1 or 3.2 hereof. If
an offering in connection with which a Purchaser is entitled to registration
under this Section 2.4 is an underwritten offering, then each Purchaser whose
Registrable Securities are included in such Registration Statement shall, unless
otherwise agreed by the Company, offer and sell such Registrable Securities in
an underwritten offering using the same underwriter or underwriters and, subject
to the provisions of this Agreement, on the same terms and conditions as other
shares of Common Stock included in such underwritten offering.
2.5 Eligibility for Form S-3. The Company represents and warrants that
it does meet, and covenants that it shall continue to meet the requirements for
the use of Form S-3 for registration of the re-sale by the Initial Purchaser and
any other Purchaser of the Registrable Securities and the Company shall file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-3.
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ARTICLE III
OBLIGATIONS OF THE COMPANY
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
3.1 The Company shall prepare promptly and file with the SEC the
Registration Statement required by Section 2.1, and cause such Registration
Statement relating to Registrable Securities to become effective as soon as
practicable after such filing, and keep the Registration Statement effective
pursuant to Rule 415 at all times until such date as is the earlier of (i) the
date on which all of the Registrable Securities have been sold (and no further
Registrable Securities may be issued in the future) and (ii) the date on which
all of the Registrable Securities (in the reasonable opinion of counsel to the
Initial Purchaser) may be immediately sold to the public without registration
and without restriction as to the number of Registrable Securities to be sold,
whether pursuant to Rule 144 or otherwise (the "Registration Period"). No
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein and all documents incorporated by reference
therein) shall contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein, or necessary to make the
statements therein not misleading.
3.2 The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective at all times
during the Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
until the termination of the Registration Period. The Company shall cause such
amendment to become effective as soon as practicable following the filing
thereof. If for any reason from time to time there are Registrable Securities
which are not included or which are not allowed to be included by the SEC in a
Registration Statement filed pursuant hereto, the Company shall file additional
registration statements as soon as practicable following a request by any
Purchaser to effect a registration of all of such Registrable Securities, which
registration statement shall be subject to all terms of this Agreement and shall
use its best efforts to cause such registration statement to become effective as
soon as practicable after such filing.
3.3 The Company shall furnish to each Purchaser whose Registrable
Securities are included in the Registration Statement and its legal counsel (a)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of a Registration Statement referred to
in Section 2.1, each written correspondence by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion, if any, thereof which contains information for which
the Company has sought confidential treatment), and (b) such number of copies of
a prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Purchaser may
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reasonably request in order to facilitate the disposition of the Registrable
Securities owned (or to be owned) by such Purchaser.
3.4 The Company shall use commercially reasonable efforts to (a)
register and qualify the Registrable Securities covered by the Registration
Statement under securities laws of such jurisdictions in the United States as
each Purchaser who holds (or has the right to hold) Registrable Securities being
offered reasonably requests, (b) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (c) take such other
actions as may be reasonably necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (d)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3.4, (ii) subject itself
to general taxation in any such jurisdiction, (iii) file a general consent to
service of process in any such jurisdiction or (iv) make any change in its
charter or bylaws which the Board of Directors of the Company determines to be
contrary to the best interests of the Company and its stockholders.
3.5 In the event the Purchasers who hold a majority in interest of the
Registrable Securities being offered in an offering pursuant to a Registration
Statement or any amendment or supplement thereto under Section 2.1 or 3.2 hereof
select underwriters for the offering, the Company shall enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriters of such offering.
3.6 As soon as practicable after becoming aware of such event, the
Company shall notify (by telephone and also by facsimile and reputable overnight
courier) each Purchaser of the happening of any event, of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and use its best efforts promptly to
(but in any event it shall within five (5) days) prepare a supplement or
amendment to the Registration Statement to correct such untrue statement or
omission, and deliver such number of copies of such supplement or amendment to
each Purchaser as such Purchaser may reasonably request; provided that for not
more than ten (10) consecutive calendar days (or a total of not more than thirty
(30) calendar days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company (as well as
delay the updating of any prospectus or Registration Statement), the disclosure
of which at the time is not, in the good faith opinion of the Company, in the
best interests of the Company (an "Allowed Delay"); provided, further, that the
Company shall promptly (i) notify the Purchasers in writing of the existence of
(but in no event, without the prior written consent of such Purchaser, shall the
Company disclose to any Purchaser any of the facts or circumstances regarding)
material non-public information giving rise to an Allowed Delay, and (ii) advise
the Purchasers in writing to cease all sales under such Registration Statement
until the end of the Allowed Delay. Without implication that the contrary
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would otherwise be true, the period of any Allowed Delay shall constitute a
Registration Suspension for all purposes hereunder.
3.7 The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest practicable time and to notify (by telephone and also by facsimile and
reputable overnight carrier) each Purchaser who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
Notwithstanding anything to the contrary, the Company shall cause the Transfer
Agent to deliver unlegended shares of Common Stock to a transferee of Purchaser
in connection with any sale of Registrable Securities with respect to which such
Purchaser has entered into a contract for sale prior to receipt of notice of
such suspension and for which such Purchaser has not yet settled.
3.8 The Company shall permit a single firm of counsel designated by the
Initial Purchaser to review the Registration Statement and all amendments and
supplements thereto a reasonable period of time prior to their filing with the
SEC, and not file any document in a form to which such counsel reasonably
objects.
3.9 The Company shall make generally available to its security holders
as soon as practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
3.10 The Company shall make available for inspection by (i) any
Purchaser, (ii) any underwriter participating in any disposition pursuant to the
Registration Statement, (iii) one firm of attorneys and one firm of accountants
retained by the Purchasers, and (iv) one firm of attorneys retained by all such
underwriters (collectively, the "Inspectors") all pertinent financial and other
records, and pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably deemed necessary by each
Inspector in connection with such Registration Statement and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request in connection therewith; provided, however, that each
Inspector shall hold in confidence and shall not make any disclosure (except to
a Purchaser) of any Record or other information which the Company determines in
good faith to be confidential, and of which determination the Inspectors are so
notified in writing, unless (a) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration Statement or to
otherwise comply with federal or state securities laws, (b) the release of such
Records is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or is otherwise required by
applicable law or legal process or (c) the information in such Records has been
made generally available to the public other than by disclosure in violation of
this or any other agreement (to the knowledge of the relevant Purchaser). The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and reasonable substance satisfactory to the
Company) with the Company with respect thereto, substantially in the form of
this Section 3.10. Each Purchaser agrees that it shall, upon learning that
disclosure of such Records is sought
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in or by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential. Nothing herein shall be
deemed to limit a Purchaser's ability to sell Registrable Securities in a manner
which is consistent with applicable laws and regulations.
3.11 The Company shall hold in confidence and not make any disclosure
of information concerning a Purchaser provided to the Company unless (a)
disclosure of such information is necessary to comply with federal or state
securities laws, (b) the disclosure of such information is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (c) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction or is otherwise
required by applicable law or legal process, (d) such information has been made
generally available to the public other than by disclosure in violation of this
or any other agreement (to the knowledge of the Company), or (e) such Purchaser
consents to the form and content of any such disclosure. The Company agrees that
it shall, upon learning that disclosure of such information concerning a
Purchaser is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to such Purchaser prior
to making such disclosure, and allow the Purchaser, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
3.12 The Company shall cause the listing and the continuation of
listing of the Common Stock and of all the Registrable Securities covered by the
Registration Statement on the Nasdaq National Market System, the Nasdaq SmallCap
Market, the New York Stock Exchange or the American Stock Exchange, and cause
the Registrable Securities to be quoted or listed on each additional national
securities exchange or quotation system upon which the Common Stock is then
listed or quoted.
3.13 The Company shall provide a transfer agent and registrar, which
may be a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement.
3.14 The Company shall cooperate with each Purchaser who hold
Registrable Securities being offered and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter or underwriters, if any, or a Purchaser may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or a Purchaser may request, and, within one (1) business
day after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, the Company shall cause legal counsel selected by
the Company to deliver, to the transfer agent for the Registrable Securities
(with copies to the Purchasers whose Registrable Securities are included in such
Registration Statement) an opinion of such counsel in the form attached hereto
as Exhibit 1.
3.15 At the request of any Purchaser, the Company shall promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a
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Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary in order to change the plan of
distribution set forth in such Registration Statement.
3.16 The Company shall comply with all applicable laws related to a
Registration Statement and offering and sale of securities and all applicable
rules and regulations of governmental authorities in connection therewith
(including, without limitation, the Securities Act and the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated by the
Commission).
3.17 The Company shall take all such other actions as any Purchaser or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
3.18 Except for the holders listed in Schedule 3.18 hereto (to the
extent such holders fail or refuse to waive their registration rights), from and
after the date of this Agreement, the Company shall not, and shall not agree to,
allow the holders of any securities of the Company to include any of their
securities in any Registration Statement or any amendment or supplement thereto
under Section 2.1 or 3.2 hereof without the consent of the holders of a majority
of the Registrable Securities hereunder.
3.19 The Registration Statement shall state that it covers such
indeterminate number of additional shares as may be issuable upon conversion of
the Preferred Stock or exercise of the Warrants to prevent dilution resulting
from stock splits, stock dividends and other similar transactions.
ARTICLE IV
OBLIGATIONS OF THE PURCHASERS
In connection with the registration of the Registrable Securities, each
Purchaser shall have the following obligations:
4.1 It shall be a condition precedent to the obligations of the Company
to complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Purchaser that such Purchaser shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least ten (10)
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Purchaser of the information the
Company requires from each such Purchaser.
4.2 Purchaser, by such Purchaser's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Purchaser has notified the Company in writing
of such Purchaser's election to exclude all of such Purchaser's Registrable
Securities from the Registration Statement.
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4.3 Purchaser whose Registrable Securities are included in a
Registration Statement understands that the Securities Act may require delivery
of a prospectus relating thereto in connection with any sale thereof pursuant to
such Registration Statement, and each such Purchaser shall use its reasonable
efforts to comply with the applicable prospectus delivery requirements of the
Securities Act in connection with any such sale.
4.4 Purchaser agrees that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 3.6, such
Purchaser will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Purchaser's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3.6 and, if so directed by the Company, such
Purchaser shall deliver to the Company (at the expense of the Company) or
destroy (and deliver to the Company a certificate of destruction) all copies in
such Purchaser's possession (other than a limited number of permanent file
copies), of the prospectus covering such Registrable Securities current at the
time of receipt of such notice. Notwithstanding anything to the contrary, the
Company shall cause its transfer agent to deliver unlegended shares of Common
Stock to a transferee of a Purchaser in connection with any sale of Registrable
Securities with respect to which such Purchaser has entered into a contract for
sale prior to receipt of such notice and for which such Purchaser has not yet
settled.
4.5 Without limiting Purchaser's rights under Section 2.1 or 3.2
hereof, no Purchaser may participate in any underwritten distribution hereunder
unless such Purchaser (a) agrees to sell such Purchaser's Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements, and (c)
agrees to pay its pro rata share of all underwriting discounts and commissions
and any expenses in excess of those payable by the Company pursuant to Article
V.
ARTICLE V
EXPENSES OF REGISTRATION
All expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Articles II and III, including, without limitation, all registration, listing
and qualification fees, printers and accounting fees, the fees and disbursements
of counsel for the Company, and the reasonable fees and disbursements of one
counsel selected by the Purchasers pursuant to Section 2.2, hereof shall be
borne by the Company.
ARTICLE VI
INDEMNIFICATION
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify, hold
harmless and defend (a) each Purchaser who holds such Registrable Securities,
(b) each underwriter of
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Registrable Securities and (c) the directors, officers, partners, members,
employees, agents and persons who control any Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), if any, (each, an "Indemnified Person"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (in any amendment or supplement,
if the Company files any amendment thereof or supplement thereto with the SEC)
or the omission or alleged omission to state therein any material fact necessary
to make the statements made therein, in light of the circumstances under which
the statements therein were made, not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6.3 with respect to the number of legal counsel, the Company shall reimburse the
Purchasers, each such underwriter and controlling person, and each such other
Indemnified Person, promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable expenses incurred by
them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6.1: (x) shall not apply to an Indemnified
Person with respect to a Claim arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company by such Indemnified Person expressly for use in the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld; and (z) with respect to any preliminary prospectus, shall
not inure to the benefit of any Indemnified Person if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or supplemented, if such
corrected prospectus was timely made available by the Company pursuant to
Section 3.3 hereof, and the Indemnified Person was promptly advised in writing
not to use the incorrect prospectus prior to the use giving rise to a Violation
and such Indemnified Person, notwithstanding such advice, used it. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by the Purchasers pursuant to Article IX.
6.2 In connection with any Registration Statement in which a Purchaser
is participating, each such Purchaser agrees to indemnify, hold harmless and
defend, to the same extent and in the same manner set forth in Section 6.1, the
Company, each of its directors, each of its officers who signs the Registration
Statement, its employees, agents and persons, if any, who control the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and any other stockholder selling securities pursuant to the
Registration
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Statement, together with its directors, officers and members, and any person who
controls such stockholder or underwriter within the meaning of the Securities
Act or the Exchange Act (each an "Indemnified Party"), against any Claim to
which any of them may become subject, under the Securities Act, the Exchange Act
or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Purchaser expressly for use in connection with
such Registration Statement; and subject to Section 6.3 such Purchaser will
reimburse any legal or other expenses (promptly as such expenses are incurred
and are due and payable) reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6.2 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Purchaser, which consent shall not be unreasonably withheld;
provided, further, however, that a Purchaser shall be liable under this
Agreement (including this Section 6.2 and Article VII) for only that amount as
does not exceed the net proceeds actually received by such Purchaser as a result
of the sale of Registrable Securities pursuant to such Registration Statement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of the Registrable Securities by the Purchasers pursuant to Article
IX. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6.2 with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and the Indemnified Party failed to utilize such
corrected prospectus.
6.3 Promptly after receipt by an Indemnified Person or Indemnified
Party under this Article VI of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to made against any indemnifying
party under this Article VI, deliver to the indemnifying party a written notice
of the commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that such indemnifying party shall diligently pursue such defense and
that such indemnifying party shall not be entitled to assume such defense and an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying party, if the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person or the Indemnified Party and any such Indemnified Person or
Indemnified Party reasonably determines that there may be legal defenses
available to such Indemnified Person or Indemnified Party which are different
from or in addition to those available to such indemnifying party. The
indemnifying party shall pay for only one separate legal counsel for the
Indemnified Persons or the Indemnified Parties, as applicable, and such legal
counsel shall be selected by Purchasers holding a majority-in-interest of the
Registrable Securities included in the Registration Statement to which the Claim
relates (with the approval of the Initial Purchaser if
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they hold Registrable Securities included in such Registration Statement), if
the Purchasers are entitled to indemnification hereunder, or by the Company, if
the Company is entitled to indemnification hereunder, as applicable. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such indemnifying party of
any liability to the Indemnified Person or Indemnified Party under this Article
VI, except to the extent that the indemnifying party is actually prejudiced in
its ability to defend such action.
ARTICLE VII
CONTRIBUTION
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Article VI to the fullest extent permitted by law; provided, however, that
(i) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation, and (ii)
contribution (together with any indemnification or other obligations under this
Agreement) by any seller of Registrable Securities shall be limited in amount to
the net amount of proceeds received by such seller from the sale of such
Registrable Securities.
ARTICLE VIII
REPORTS UNDER THE EXCHANGE ACT
With a view to making available to the Purchasers the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the SEC that may at any time permit the Purchasers to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees to,
so long as such Purchaser beneficially owns (without giving effect to any
limitations on the conversion or exercise thereof) Registrable Securities:
8.1 File with the SEC in a timely manner and make and keep available
all reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the Company remains subject to such requirements
(it being understood that nothing herein shall limit the Company's obligations
under Section 4.3 of the Securities Purchase Agreement) and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
8.2 Furnish to each Purchaser promptly upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested to permit the Purchasers to sell such securities pursuant
to Rule 144 without registration.
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ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of the Purchasers hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
automatically assigned by each Purchaser to any transferee of not less than
50,000 shares of Registrable Securities (subject to subsequent adjustments for
stock splits, stock dividends, reverse stock splits and the like) if: (a) the
Purchaser agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (b) the Company is, within ten (10)
business days after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee, and (ii) the
securities with respect to which such registration rights are being transferred
or assigned, (c) following such transfer or assignment, the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act or applicable state securities laws, (d) at or before the time
the Company receives the written notice contemplated by clause (b) of this
sentence, the transferee or assignee agrees in writing for the benefit of the
Company to be bound by all of the provisions contained herein, (e) such transfer
shall have been made in accordance with the applicable requirements of the
Securities Purchase Agreement and (f) such transferee shall be an "accredited
investor" as such term is defined in Rule 501 of the Securities Act.
In lieu of the foregoing and in connection with a particular transfer,
Purchaser may require the Company to enter into a separate registration
agreement with such transferee providing for rights and obligations of the
Company and such transferee and such transferee shall not be deemed Purchaser
hereunder with respect to such transferred Registrable Securities in such event.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with written consent of the Company, the
Initial Purchaser (but not an Initial Purchaser who no longer owns any Preferred
Stock or Registrable Securities and who is not affected by such amendment or
waiver) and Purchasers who hold a majority interest of the Registrable
Securities. Any amendment or waiver effected in accordance with this Article X
shall be binding upon each Purchaser and the Company. Notwithstanding the
foregoing, no amendment or waiver shall retroactively affect any Purchaser
without its consent or prospectively adversely affect any Purchaser who no
longer owns any Preferred Stock, Warrants or Registrable Securities without its
consent. Neither Article VI nor Article VII hereof may be amended or waived in a
manner adverse to a Purchaser without its consent.
ARTICLE XI
MISCELLANEOUS
11.1 A person or entity is deemed to be a holder (or a holder in
interest) of Registrable Securities whenever such person or entity owns of
record such Registrable Securities (or the Preferred Stock or the Warrant which
may be converted into or exercised for Registrable
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Securities). If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities (or Preferred Stock or the Warrant, as the case may be).
11.2 Any notices 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 Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
XXXXXXX, PHLEGER & XXXXXXXX, LLP
0000 Xxxxx xx xxx Xxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: J. Xxxxxxx Xxxxx, P.C.
If to Initial Purchaser:
---------------------------------
---------------------------------
---------------------------------
Telecopy:
------------------------
Attention:
-----------------------
and with a copy to:
---------------------------------
---------------------------------
---------------------------------
Telecopy:
------------------------
Attention:
-----------------------
And if to any other Purchaser, at such address as
such Purchaser 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 11.2.
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11.3 Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
11.4 This Agreement 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 federal courts located in the State of Delaware and the
state courts of the State of Delaware located in the County of New Castle in the
State of Delaware in any suit or proceeding based on or arising under this
Agreement 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 parties hereto further agree that service of process upon the parties hereto
mailed by first class mail shall be deemed in every respect effective service of
process upon each such party in any such suit or proceeding. Nothing herein
shall affect either party's right to serve process in any other manner permitted
by law. The parties hereto agree that a final non-appealable judgment in any
such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
11.5 This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein.
11.6 Subject to the requirements of Article IX hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto. Notwithstanding anything to the contrary contained
herein, including, without limitation, Article IX, the rights of a Holder
hereunder shall be assignable to and exercisable by a bona fide pledgee of the
Registrable Securities in connection with a Holder's margin or brokerage
accounts.
11.7 The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
11.8 This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto, by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
11.9 Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
11.10 The initial number of Registrable Securities included on any
Registration Statement and each increase to the number of Registrable Securities
included thereon shall be allocated pro rata to a Purchaser based on the number
of Registrable Securities held by such
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Purchaser in relation to all Registrable Securities at the time of such
establishment or increase, as the case may be. In the event a Purchaser shall
sell or otherwise transfer any of such holder's Registrable Securities and such
transferee becomes a Purchaser hereunder, each transferee shall be allocated a
pro rata portion of the number of Registrable Securities included on a
Registration Statement for such transferor. In addition, a Purchaser who
continues to own Registrable Securities shall be allocated a portion of any
shares of Common Stock included on a Registration Statement and which remain
allocated to any person or entity which does not hold any Registrable
Securities, pro rata based on the number of shares of Registrable Securities
then held by such Purchaser in relation to all outstanding Registrable
Securities. Without implication that the contrary would otherwise be true, for
purposes of this paragraph, all Preferred Stock and Warrants then outstanding
shall be assumed converted into Registrable Securities.
11.11 If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement.
* * *
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
THE COMPANY
THE VIALINK COMPANY
By:
-------------------------
Name:
Title:
INITIAL PURCHASER:
By:
Its:
By:
------------------------------
Its:
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EXHIBIT 1
TO REGISTRATION
RIGHTS AGREEMENT
[Date]
[Name and address
of transfer agent]
RE: THE VIALINK COMPANY.
Ladies and Gentlemen:
We are counsel to THE VIALINK COMPANY, a Delaware corporation (the
"Company"), and we understand that [Name of Purchaser] (the "Holder") has
purchased from the Company Series __ Convertible Participating Preferred Stock
of the Company (the "Preferred Stock"), convertible into shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), and a warrant
entitling the Holder to purchase a certain number of the Company's Common Stock
(the "Warrant"). The Preferred Stock and the Warrant were purchased by the
Holder pursuant to a Securities Purchase Agreement, dated as of February 2,
2001, by and between the Company and the Holder (the "Agreement"). Pursuant to a
Registration Rights Agreement, dated as of February __, 2001, by and between the
Company and the Holder (the "Registration Rights Agreement"), the Company agreed
with the Holder, among other things, to register the Registrable Securities (as
that term is defined in the Registration Rights Agreement) under the Securities
Act of 1933, as amended (the "Securities Act"), upon the terms provided in the
Registration Rights Agreement. In connection with the Company's obligations
under the Registration Rights Agreement, on _____ __, 2001, the Company filed a
Registration Statement on Form S-_____ (File No. 333- __________) (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") relating to the Registrable Securities, which names the Holder as a
selling stockholder thereunder.
[Other customary introductory and scope of examination language to be
inserted]
Based on the foregoing, we are of the opinion that the Registrable
Securities have been registered under the Securities Act.
[Other appropriate customary language to be included.]
Very truly yours,
cc: [Name of Purchaser]
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