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EXHIBIT 4.3
NEITHER THIS WARRANT NOR ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
DISPOSED OF WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS
OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS
THEREFROM.
No. i2 1 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
March 24, 2000
The viaLink Company, a Delaware corporation (the "Company"), hereby
certifies that, for value received, i2 Technologies, Inc., a Delaware
corporation ("i2"), or its permitted assigns, is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
before 5:00 p.m. (Dallas, Texas time), on March 24, 2003, up to that number of
fully paid and nonassessable shares (the "Warrant Shares") of the Company's
Common Stock, $0.001 par value that shall equal 5,010. The purchase price per
share of the Warrant Shares shall be equal to $83.83 (such purchase price per
share as adjusted from time to time as herein provided is referred to herein as
the "Purchase Price"). The number and character of such shares of Common Stock
and the Purchase Price are subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Business Day" means any day except a Saturday or a
Sunday or other day on which the National Market (as hereinafter defined),
or any national securities exchange on which the Common Stock (as
hereinafter defined) is traded or admitted for unlisted trading privileges,
is closed for trading.
(b) The term "Company" shall include The viaLink Company, and any
corporation which shall succeed to, or assume the obligations of, The
viaLink Company hereunder.
(c) The term "Common Stock" includes the Company's common stock,
$0.001 par value, as authorized on March 24, 2000, and/or any Other
Securities into which or for which the Warrant Shares may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise.
(d) The term "Fair Market Value" per share of Common Stock means:
(1) If the Common Stock is traded on a national securities
exchange or admitted to unlisted trading privileges on such
an exchange, or is listed on the National Market (the
"National Market") of the National Association of Securities
Dealers Automated Quotations System (the "NASDAQ"), the
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Fair Market Value shall be the average of the last reported
sale prices of the Common Stock on such exchange or on the
National Market over the five consecutive Business Days
immediately preceding the date of determination or, if the
last reported sale price information is not available for
such days, the average of the mean of the closing bid and
asked prices for such days on such exchange or on the
National Market;
(2) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the Fair Market Value shall be the
average of the mean of the last bid and asked prices
reported over the five consecutive Business Days immediately
preceding the date of determination (A) by the NASDAQ or (B)
if reports are unavailable under clause (A) above, by the
National Quotation Bureau Incorporated; and
(3) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and ask prices are not reported,
the Fair Market Value shall be the price per share which the
Company could obtain from a willing buyer for shares of
Common Stock, as such price shall be determined by mutual
agreement of the Company and the holders of rights to
purchase a majority of the shares of Common Stock
purchasable under all warrants then outstanding and issued
(directly or indirectly) from those certain Common Stock
Purchase Warrants, dated March 24, 2000, issued by the
Company to [i2/Hewlett-Packard Company ("HP") and Millennium
Partners, L.P. ("Millennium")], which originally granted to
each of i2, HP and Millennium the right to purchase 5,010
shares of Common Stock. If such holders and the Company are
unable to agree on such Fair Market Value, the Company shall
select a pool of three independent and nationally-recognized
investment banking firms from which such holders (by a
majority vote) shall select one such firm to appraise the
fair market value of the Warrant and to perform the
computations involved. The determination of such investment
banking firm shall be binding upon the Company and such
holders in connection with any transaction occurring at the
time of such determination. All expenses of such investment
banking firm shall be borne by the Company. In all cases,
the determination of fair market value shall be made without
consideration of the lack of a liquid public market for the
Common Stock and without consideration of any "control
premium" or any discount for holding less than a majority or
controlling interest of the outstanding Common Stock.
(e) The term "Other Securities" refers to any stock (other than Common
Stock) or other securities of the Company or any other person (corporate or
otherwise) (i) which the holder of this Warrant at any time shall be
entitled to receive, or shall have received, on the exercise of this
Warrant, in lieu of or in addition to shares of the Company's common stock,
$.001 par value per share, as authorized on March 24, 2000, or (ii) which
at any time shall be issuable or shall have been issued in exchange for or
in replacement of shares of the Company's common stock, $.001 par value per
share, as authorized on March 24, 2000, or Other Securities pursuant to
Section 4 or otherwise.
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1. Exercise of Warrant.
1.1 Full Exercise. This Warrant may be exercised at any time after the
date hereof during normal business hours before its expiration in full by the
holder hereof by surrender of this Warrant, with the form of subscription at the
end hereof duly executed by such holder, to the Company at its principal office,
accompanied by payment, in cash, by bank cashier's check payable to the order of
the Company or by wire transfer, in the amount obtained by multiplying the
number of shares of Common Stock and/or Other Securities for which this Warrant
is then exercisable by the Purchase Price then in effect.
1.2 Partial Exercise. This Warrant may be exercised at any time during
normal business hours after the date hereof before its expiration in part by
surrender of this Warrant and payment of the Purchase Price then in effect in
the manner and at the place provided in subsection 1.1, except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock and/or Other Securities
designated by the holder in the subscription at the end hereof by (b) the
Purchase Price then in effect. On any such partial exercise, the Company at its
expense will forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant or Warrants of like tenor, in the name of the holder hereof
or as such holder (upon payment by such holder of any applicable transfer taxes)
may request, filling in the aggregate on the face or faces thereof the number of
shares of Common Stock and/or Other Securities for which such Warrant or
Warrants may still be exercised.
1.3 Company Acknowledgment. The Company will, at the time of any
exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to such holder any
rights to which such holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant. If the holder shall fail to make
any such written request, such failure shall not affect the continuing
obligation of the Company to afford to such holder any such rights.
1.4 Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holder of this Warrant
pursuant to subsection 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant hereto and shall accept, in its
own name for the account of the Company or such successor person as may be
entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 1.
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1.5 Net Issue.
(a) Election. The holder hereof may elect to receive, without the
payment by the holder of any additional consideration, Warrant Shares
equal to the value of this Warrant or any portion hereof by the surrender
of this Warrant or such portion to the Company, with the net issue
election notice attached hereto, duly executed, at the office of the
Company. Thereupon, the Company shall issue to the holder hereof such
number of fully paid and nonassessable shares of Common Stock as is
computed using the following formula:
X = Y(A-B)
------
A
where X = the number of shares to be issued to the holder hereof pursuant
to this Section 1.5.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.5.
A = the Fair Market Value of one share of Common Stock as of the time the
net issue election is made pursuant to this Section 1.5.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.5.
2. Delivery of Stock Certificates, Etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten Business Days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or, to the extent not constituting Common Stock, Other Securities) to
which such holder shall be entitled on such exercise, plus, in lieu of any
fractional share to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current Fair Market Value of one full
share, together with any other property (including cash, where applicable) to
which such holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock (or, to the extent not constituting Common Stock, Other Securities)
in their capacity as such shall have received, or (on or after the record date
fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor,
(f) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(g) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
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(h) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate rearrangement,
other than additional shares of capital stock issued as a stock dividend or in a
stock split (adjustments in respect of which are provided for in Section 5),
then and in each such case the holder of this Warrant, on the exercise hereof as
provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) determined by multiplying (i) the
amount of stock and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section) which such holder would
hold on the date of such exercise, if on the record date with respect to or the
date of the issuance of the stock, securities, property and cash referred to in
subdivisions (a), (b) or (c) of this Section 3, as applicable, it 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 date hereof to
and including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (including cash in the
cases referred to in subdivisions (b) and (c) of this Section 3) receivable by
it as aforesaid during such period, giving effect to all adjustments called for
during such period by Section 4 and Section 5 by (ii) the percentage of this
Warrant then being exercised.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1 Reorganization, Consolidation, Merger, etc. In case at any time or
from time to time, the Company shall (a) effect a reorganization,
reclassification or recapitalization (b) consolidate with or merge into any
other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this Warrant,
on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, reclassification, recapitalization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Common Stock (or, to the extent not
constituting Common Stock, Other Securities) issuable on such exercise prior to
such consummation or such effective date, the amount of stock and other
securities and property (including cash) determined by multiplying (i) the
amount of the stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in connection
with such event, as the case may be, if such holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment thereafter
as provided in Sections 3 and 5 by (ii) the percentage of this Warrant then
being exercised.
4.2 Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause to
be delivered the Other Securities and property (including cash, where
applicable) receivable by the holders of this Warrant after the effective date
of such dissolution pursuant to this Section 4 to a bank or trust company having
its principal office in Dallas, Texas, as trustee for the holder of this
Warrant.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect, subject to
expiration in accordance with Section 17 hereof, and the terms hereof shall be
applicable to the Other Securities and property receivable on the exercise of
this Warrant after the consummation of such reorganization, consolidation or
merger or the effective date of dissolution following any such transfer, as the
case may be, and shall be binding upon the issuer of any such Other
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Securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 6.
5. Anti-Dilution Adjustments.
5.1 General. The Purchase Price shall be subject to adjustment from
time to time as hereinafter provided. Upon each adjustment of the Purchase
Price, the holder of this Warrant shall thereafter be entitled to purchase, at
the Purchase Price resulting from such adjustment, the number of shares obtained
by multiplying the Purchase Price in effect immediately prior to such adjustment
by the number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Purchase Price resulting from
such adjustment.
5.2 Purchase Price Adjustments.
(a) If and whenever after the date hereof the Company shall issue
or sell any shares of its capital stock (except as set forth below in
subparagraph 5.2(b)), for a consideration per share less than the
Purchase Price in effect immediately prior to the time of such issue or
sale, the Purchase Price shall be reduced to the price (calculated to the
nearest $0.01) obtained by dividing (i) an amount equal to the sum of (A)
the number of shares of capital stock outstanding, or deemed to be
outstanding, immediately prior to such issue or sale multiplied by the
Purchase Price prevailing immediately prior to such issue or sale plus
(B) the consideration, if any, received by the Company upon such issue or
sale, by (ii) the total number of shares of capital stock outstanding, or
deemed to be outstanding, immediately after such issue or sale.
Notwithstanding the foregoing, no adjustment of the Purchase Price shall
be made in an amount less than $0.01 per share, but any such lesser
adjustment shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which together with any
adjustments so carried forward shall amount to $0.01 per share or more.
(b) The following issuance of the Company's securities shall not
result in an adjustment in the Purchase Price: (i) stock issued pursuant
to a bona fide, public offering of shares of Common Stock, registered
under the Securities Act, pursuant to a registration statement; (ii)
stock issued pursuant to the conversion or exercise of convertible or
exercisable securities outstanding as of the date hereof; (iii) stock
issued pursuant to or in connection with a bona fide business acquisition
of or by the Company, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise; (iv) stock issued upon the
exercise of any warrants issued as of the date hereof (which do not have
as their purpose an equity financing element) approved by the Board; (v)
stock issued upon the exercise of one or more of the Warrants; or (vi)
stock issued pursuant to options, warrants, rights or similar commitments
obligating the Company to issue shares of its capital stock which are in
existence as of the date hereof.
5.3 Option Grants. Except as precluded in subsection 5.2(b), in the
event that at any time after March 22, 2000 the Company shall in any manner
grant (directly, by assumption in a merger or otherwise) any rights to subscribe
for or to purchase, or any options for the purchase of, capital stock or any
securities convertible into or exchangeable for its capital stock (such rights
or options being herein called "Options" and such convertible or exchangeable
stock or securities being herein called "Convertible Securities"), whether or
not such Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which
capital stock is issuable upon the exercise of such Options or upon conversion
or exchange of such Convertible Securities (determined by dividing (i) the total
amount, if any, received or receivable by the Company as consideration for the
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granting of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus, in the case of any such Options which relate to Convertible Securities,
the minimum aggregate amount of additional consideration, if any, payable upon
the issue or sale of such Convertible Securities and upon the conversion or
exchange thereof, by (ii) the total number of shares of capital stock issuable
upon the exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be less
than the Purchase Price in effect immediately prior to the time of the granting
of such Options, then the total number of shares of capital stock issuable upon
the exercise of such Options or upon conversion or exchange of the total amount
of such Convertible Securities issuable upon the exercise of such Options shall
(as of the date of granting such Options) be deemed to be outstanding and to
have been issued for such price per share. Except as otherwise provided in
subsection 5.5, no further adjustment of the Purchase Price shall be made upon
the actual issue of such capital stock or of such Convertible Securities upon
exercise of such Options or upon the actual issue of such capital stock upon
conversion or exchange of such Convertible Securities.
5.4 Convertible Security Grants. Except as precluded in subsection
5.2(b), in the event that the Company shall in any manner issue (directly, by
assumption in a merger or otherwise) or sell any Convertible Securities (other
than pursuant to the exercise of Options to purchase such Convertible Securities
covered by subsection 5.3), whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which
capital stock is issuable upon such conversion or exchange (determined by
dividing (i) the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (ii) the total maximum
number of shares of capital stock issuable upon the conversion or exchange of
all such Convertible Securities) shall be less than the Purchase Price in effect
immediately prior to the time of such issue or sale, then the total maximum
number of shares of capital stock issuable upon conversion or exchange of all
such Convertible Securities shall (as of the date of the issue or sale of such
Convertible Securities) be deemed to be outstanding and to have been issued for
such price per share, provided that, except as otherwise provided in subsection
5.5, no further adjustment of the Purchase Price shall be made upon the actual
issue of such capital stock upon conversion or exchange of such Convertible
Securities.
5.5 Effect of Alteration to Option or Convertible Security Terms. In
connection with any change in, or the expiration or termination of, the purchase
rights under any Option or the conversion or exchange rights under any
Convertible Securities, the following provisions shall apply:
(a) If the purchase price provided for in any Option referred to in
subsection 5.3, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subsection 5.3 or 5.4, or the rate at which any Convertible Securities
referred to in subsection 5.3 or 5.4 are convertible into or exchangeable
for capital stock shall change at any time (including, but not limited to,
changes under or by reason of provisions designed to protect against
dilution), then the Purchase Price in effect at the time of such change
shall forthwith be increased or decreased to the Purchase Price which would
be in effect immediately after such change had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold.
(b) On the partial or complete expiration of any Options or
termination of any right to convert or exchange Convertible Securities, the
Purchase Price then in effect hereunder shall forthwith be increased or
decreased to the Purchase Price which would be in effect at the time of
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such expiration or termination had such Options or Convertible Securities,
to the extent outstanding immediately prior to such expiration or
termination, never been issued.
5.6 Dividends of Capital Stock, Options or Convertible Securities. In
the event that the Company shall declare a dividend or make any other
distribution upon any stock of the Company payable in capital stock, Options or
Convertible Securities, then any capital stock, Options or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without consideration
unless such dividend or distribution is subject to Section 3 hereof.
5.7 Dilution in Case of Other Securities. In case any Other Securities
shall be issued or sold by the Company, or shall become subject to issue upon
the conversion or exchange of any stock (or Other Securities) of the Company (or
any other issuer of Other Securities or any other person referred to in Section
4) or to subscription, purchase or other acquisition pursuant to any rights or
options granted by the Company (or such other issuer or person), for a
consideration per share such as to dilute the purchase rights evidenced by this
Warrant, the computations, adjustments and readjustments provided for in this
Section 5 with respect to the Purchase Price and the number of shares of Common
Stock issuable upon exercise of this Warrant shall be made as nearly as possible
in the manner so provided and applied to determine the amount of Other
Securities from time to time receivable on the exercise of this Warrant, so as
to protect the holders of this Warrant against the effect of such dilution.
5.8 Stock Splits and Reverse Splits. In the event that the Company
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares, the Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Shares
purchasable pursuant to this Warrant immediately prior to such subdivision shall
be proportionately increased, and conversely, in the event that the outstanding
shares of Common Stock shall at any time be combined into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination shall
be proportionately increased and the number of Warrant Shares purchasable upon
the exercise of this Warrant immediately prior to such combination shall be
proportionately reduced. Except as provided in this subsection 5.8, no
adjustment in the Purchase Price and no change in the number of Warrant Shares
purchasable shall be made under this Section 5 as a result of or by reason of
any such subdivision or combination.
5.9 Determination of Consideration Received. For purposes of this
Section 5, the amount of consideration received by the Company in connection
with the issuance or sale of capital stock, Options or Convertible Securities
shall be determined in accordance with the following:
(a) In the event that shares of capital stock, Options or Convertible
Securities shall be issued or sold for cash, the consideration received
therefor shall be deemed to be the amount payable to the Company therefor,
without deduction of any expenses incurred or any underwriting commissions
or concessions paid or allowed by the Company in connection therewith.
(b) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued or sold for a consideration other
than cash, the amount of the consideration other than cash payable to the
Company shall be deemed to be the fair value of such consideration as
reasonably determined by the Board of Directors of the Company, without
deduction of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection therewith.
In the event that any shares of capital stock, Options or Convertible
Securities shall be issued in connection with any merger in which the
Company is the surviving corporation, the
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amount of consideration therefor shall be deemed to be the fair value as
reasonably determined by the Board of Directors of the Company of such
portion of the assets and business of the non-surviving corporation as such
Board shall determine to be attributable to such capital stock, Options or
Convertible Securities, as the case may be.
In the event that any capital stock, Options and/or Convertible
Securities shall be issued in connection with the issue and sale of other
securities or property of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such capital
stock, Options or Convertible Securities by the parties thereto, such
capital stock, Options and/or Convertible Securities shall be deemed to
have been issued for such consideration as determined in good faith by the
Board of Directors of the Company.
5.10 Record Date as Date of Issue or Sale. In the event that at any
time the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them (i) to receive a dividend or other distribution
payable in capital stock, Options or Convertible Securities, or (ii) to
subscribe for or purchase capital stock, Options or Convertible Securities, then
such record date shall be deemed to be the date of the issue or sale of the
shares of capital stock, Options or Convertible Securities deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be; provided, nothing contained herein will be deemed
to require the Company to issue or deliver such capital stock, Options or
Convertible Securities until the capital stock, Options or Convertible
Securities which are the subject of any such dividend, distribution or
subscription right are issued or delivered to the holders of Common Stock.
5.11 Treasury Stock. The number of shares of capital stock outstanding
at any given time shall not include shares owned or held by or for the account
of the Company, and the disposition of any such shares (other than their
cancellation without reissuance) shall be considered an issue or sale of capital
stock for the purposes of this Section 5.
5.12 Certain Issues of Capital Stock Excepted. Anything herein to the
contrary notwithstanding, the Company shall not be required to make any
adjustment to the Purchase Price in the case of the issuance from time to time
after the date hereof of shares of capital stock reserved by the Company for the
grant and exercise of (a) options to purchase capital stock or (b) rights under
the Company's current employee stock purchase plan, in each case, granted to
directors, officers, employees, or consultants of the Company pursuant to
arrangements, plans or contracts approved by the Board of Directors of the
Company.
6. No Dilution or Impairment. The Company will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holders of
this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value or
stated value of any shares of stock receivable on the exercise of this Warrant
above the amount payable therefor on such exercise, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of stock on the exercise
of this Warrant, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into
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the Company (if the Company is not the surviving person), unless such other
person shall expressly assume in writing and become bound by all the terms of
this Warrant.
7. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of this Warrant, the Company at its expense will promptly cause its
chief financial officer to compute such adjustment or readjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or receivable by the Company for any additional shares of
capital stock (or, to the extent not constituting Common Stock, Other
Securities) issued or sold or deemed to have been issued or sold, (b) the number
of shares of each class or series of capital stock outstanding or deemed to be
outstanding, and (c) the Purchase Price and the number of shares of Common Stock
(and, to the extent not constituting Common Stock, Other Securities) to be
received upon exercise of this Warrant, in effect immediately prior to such
issue or sale and as adjusted and readjusted as provided in this Warrant. The
Company will forthwith mail a copy of each such certificate to the holder of
this Warrant, and will, on the written request at any time of the holder of this
Warrant, furnish to such holder a like certificate setting forth the Purchase
Price at the time in effect and showing how it was calculated.
8. Registration Rights. The holder(s) of this Warrant and any other
Warrants issued pursuant to the terms hereof from time to time shall be entitled
(i) with respect to i2, to the registration rights in respect thereof as
provided in the Registration Rights Agreement between the Company and i2, dated
October 12, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, (ii) with respect to HP, to the registration rights in respect thereof
as provided in the Shareholder Agreement between the Company and HP, dated
February 4, 1999, as amended on March 22, 2000, in accordance with the terms
thereof, and (iii) with respect to Millennium, to the registration rights in
respect thereof as provided in the Registration Rights Agreement between the
Company and Millennium, dated March 22, 2000, in accordance with the terms
thereof. Any holder not a party to either of the two agreements described in
this Section 8 shall not be entitled to registration rights.
9. Notices of Record Date, etc. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all
or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock (or, to the extent not constituting Common Stock, Other Securities) shall
be entitled to exchange their shares of Common Stock (or, to the extent not
constituting Common
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Stock, Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least ten Business Days
prior to the date specified in such notice on which any such action is to be
taken.
10. Reservation of Stock, etc. Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or, to the
extent not constituting Common Stock, Other Securities) from time to time
issuable upon the exercise of this Warrant.
11. Exchange of Warrants. On surrender for exchange of this Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, filling in the aggregate on
the face or faces thereof the number of shares of Common Stock called for on the
face or faces of the Warrant so surrendered; provided, however, that in no event
will the Company be obligated to recognize or permit any transfer of this
Warrant that would result in the assignor or any assignee receiving a Warrant
exercisable with respect to 25,000 or fewer shares of Common Stock.
12. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
13. Remedies. [Deleted.]
14. Negotiability, etc. This Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof consents
and agrees, subject to the limitation on transfer set forth in Section 11:
(a) title to this Warrant may be transferred by endorsement (by the
holder hereof executing the form of assignment at the end hereof) and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery; and
(b) any person in possession of this Warrant properly endorsed for
transfer to such person (including endorsed in blank) is authorized to
represent himself as absolute owner hereof and is empowered to transfer
absolute title hereto by endorsement and delivery hereof to a bona fide
purchaser hereof for value; each prior taker or owner waives and renounces
all of his equities or rights in this Warrant in favor of each such bona
fide purchaser, and each such bona fide purchaser shall acquire absolute
title hereto and to all rights represented hereby. Nothing in this
paragraph (b) shall create any liability on the part of the Company beyond
any liability or responsibility it has under law.
15. Notices, etc. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid at such address as may have been furnished to
the Company in writing by such holder or, until any such holder
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furnishes to the Company an address, then to, and at the address of, the last
holder of this Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal substantive laws of the State of Texas, without regard
to the conflicts of law principles thereof and, to the maximum extent
practicable, will be deemed to call for performance in Dallas County, Texas. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
17. Expiration. The right to exercise this Warrant shall expire at
5:00 p.m. (Dallas, Texas time), March 24, 2003.
18. Warrant Holders Not Deemed Shareholders. No holder of this Warrant
shall, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock or, to the extent not constituting Common Stock, Other
Securities that may at any time be issuable upon exercise of this Warrant for
any purpose whatsoever, nor shall anything contained herein be construed to
confer upon the holder of this Warrant, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue or reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until such holder shall have exercised this Warrant and
been issued Common Stock or, to the extent not constituting Common Stock, Other
Securities in accordance with the provisions hereof.
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first written above.
THE VIALINK COMPANY
By: /s/ J. Xxxxxx Xxxxxx
--------------------------------------------
Name: J. Xxxxxx Xxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO WARRANT]
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
THE VIALINK COMPANY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, ___________
shares (the "Shares") of Common Stock of The viaLink Company and herewith makes
payment of $________ therefor, and requests that the certificate for such Shares
be issued in the name of, and delivered to ___________________, federal taxpayer
identification number _______________, whose address is _________________.
In connection with the exercise of this Warrant, the undersigned represents
and warrants as follows:
(a) The undersigned is purchasing the Shares for the account of the
undersigned and not as a nominee or agent, and the undersigned has no
present intention of granting any participation in the same, and does not
have any contract, undertaking, agreement or arrangement with any person to
grant participation to such person or to any third person, with respect to
any of such Shares;.
(b) The undersigned has received or has had full access to all the
information it considers necessary or appropriate to make an informed
investment decision with respect to the Shares. The undersigned has had an
opportunity to ask questions of and receive answers from the Company and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to undersigned or to which
the Company has access.
(c) The undersigned understands that the Shares are characterized as
"restricted securities" under the federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act of
1933, as amended (the "Securities Act") only in certain limited
circumstances. In this connection, the undersigned represents that it is
familiar with Securities and Exchange Commission ("SEC") Rule 144, as
presently in effect, and understands the resale limitations imposed thereby
and by the Securities Act.
(d) The undersigned is an "accredited investor" within the meaning of
SEC Rule 501 of Regulation D, as presently in effect.
(e) The undersigned agrees not to offer, sell, exchange, transfer,
pledge or otherwise dispose of any of the Shares unless at that time
either:
(1) such transaction is permitted pursuant to the provisions of
Rule 144 under the Securities Act or another exemption from
registration under the Securities Act and all applicable
state securities laws;
(2) a registration statement under the Securities Act and all
applicable state securities laws covering such securities
proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed
15
sale, transfer or other disposition, and containing a
current prospectus, is filed with the SEC and all applicable
state securities law agencies and made effective under the
Securities Act and all applicable state securities laws; or
(3) an authorized representative of the SEC and all applicable
state securities agencies shall have rendered written advice
to undersigned (with a copy thereof and of all other related
communications delivered to the Company) to the effect that
the SEC and/or such state securities agencies will take no
action, or that the staff of the SEC and/or such state
securities agencies will recommend that the SEC and such
state securities agencies, as applicable, take no action,
with respect to the proposed offer, sale, exchange,
transfer, pledge or other disposition if consummated.
(f) All certificates representing the Shares and any certificates
subsequently issued with respect thereto or in substitution therefor shall
bear a legend that such securities may only be sold or disposed of in
accordance with (i) the provisions of the Securities Act, the rules and
regulations thereunder and any applicable state securities laws, (ii)
pursuant to an effective registration statement or (iii) pursuant to an
exemption from the registration/qualification requirements of the
Securities Act and any applicable state securities laws. The Company, at
its reasonable discretion, may cause stop transfer orders to be placed with
its transfer agent with respect to the certificates for the Shares but not
as to the certificates for any part of such Shares as to which said legend
is no longer required.
Dated:________ ____________________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
____________________________________________________
(Address)
Signed in the presence of:
---------------------
---------------------------
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ____________________________, federal taxpayer identification number
___________, whose address is ____________________________________, the right
represented by the within Warrant to purchase ___________ shares of Common Stock
of The viaLink Company to which the within Warrant relates, and appoints
___________________ Attorney to transfer such right on the books of The viaLink
Company with full power of substitution in the premises.
Dated:_________________ __________________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
__________________________________________________
(Address)
Signed in the presence of:
-----------------------
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NET ISSUE ELECTION NOTICE
TO: THE VIALINK COMPANY Date:___________________________
The undersigned hereby elects under Section 1.5 of the Warrant to surrender
the right to purchase _______ shares of Common Stock pursuant to this Warrant.
The certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of:
------------------------------------------------------------
------------------------------------------------------------
(Please Print Name, Address and Taxpayer Identification No.)
----------
Name of holder of this Warrant or Assignee:
-------------------------------
(Please Print)
Address:
---------------
Signature:
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular without alteration or
enlargement or any change whatever unless this Warrant has been assigned.
