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EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE viaLINK COMPANY
AND
i2 TECHNOLOGIES, INC.
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.............................................................................................1
ARTICLE 2 REGISTRATION RIGHTS.....................................................................................3
2.1 Demand Registration.............................................................................3
2.2 Piggyback Registrations.........................................................................3
2.3 Registration Procedures.........................................................................4
2.4 Payment of Expenses.............................................................................7
2.5 Participation in Underwritten Registrations.....................................................7
2.6 Information of the Holder.......................................................................8
2.7 Rule 144 Information............................................................................8
2.8 Delay in Demand Registration....................................................................8
ARTICLE 3 INDEMNIFICATION.........................................................................................8
3.1 Indemnification by the Company..................................................................8
3.2 Indemnification by Holder.......................................................................9
3.3 Notice: Defense of Claims.......................................................................9
3.4 Contribution....................................................................................9
3.5 Survival.......................................................................................10
ARTICLE 4 MISCELLANEOUS..........................................................................................10
4.1 Notices........................................................................................10
4.2 Interpretation.................................................................................12
4.3 Counterparts...................................................................................12
4.4 Entire Agreement...............................................................................12
4.5 Amendments and Waivers.........................................................................12
4.6 Successors and Assigns.........................................................................12
4.7 Severability...................................................................................12
4.8 Remedies Cumulative............................................................................13
4.9 Governing Law..................................................................................13
4.10 Rules of Construction..........................................................................13
4.11 Currency.......................................................................................13
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 12, 1999, by and between The viaLink Company, an
Oklahoma corporation (together with any successor entity, the "Company"), and i2
Technologies, Inc. (the "Holder").
R E C I T A L S:
A. The Company and the Holder are parties to a Securities
Purchase Agreement, dated October 12, 1999 (the "Purchase Agreement"),
providing, among other things, for the Holder's acquisition of shares of Common
Stock, par value $0.001 per share, of the Company ("Shares") and a warrant to
purchase shares of Common Stock of the Company (the "Warrant").
B. The execution and delivery of this Agreement by the Company
and the Holder is required in connection with the transactions contemplated by
the Purchase Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated:
"Closing" means the closing of the transactions contemplated
by the Securities Purchase Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's common stock, par value
$0.001 per share.
"Demand Registration" means the registration provided for in
Section 2.1 hereof.
"1933 Act" means the United States Securities Act of 1933, as
amended.
"Other Securities" means any stock (other than Common Stock)
or other securities of the Company or any other person (corporate or otherwise)
(i) which the holder of this Warrant at any time shall be entitled to receive,
or shall have received, on the exercise of the Warrant, in lieu of or in
addition to shares of Common Stock, or (ii) which at any time shall be
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issuable or shall have been issued in exchange for or in replacement of shares
of Common Stock.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Piggyback Registration" means the registration provided for
in Section 2.2 hereof.
"Potential Material Event" means any of the following: (a) the
possession by the Company of material non-public information required to be
disclosed in a Company registration statement and the determination in good
faith by the Board of Directors of the Company that disclosure of such
information in the registration statement at that time would be detrimental to
the business and affairs of the Company; or (b) any material engagement or
activity by the Company which would, in the good faith determination of the
Board of Directors of the Company, if disclosed in the registration statement at
such time, be materially and adversely affected, which determination shall be
accompanied by a good faith determination by the Board of Directors of the
Company that the registration statement would be materially misleading absent
the inclusion of such information.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Article 2 hereof, including all
registration, Commission filing fees, fees of the National Association of
Securities Dealers or the Nasdaq SmallCap Market, all fees and expenses of
complying with securities or blue sky laws, printing expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance, and, in the case of a Piggyback
Registration pursuant to Section 2.2 hereof that is a firm commitment
underwritten public offering, the reasonable fees and expenses (not to exceed
$15,000) of one counsel to all selling Holders; provided, however, that
Registration Expenses shall exclude, and the sellers of the Registrable Stock
being registered shall pay, any underwriting discounts, commissions and transfer
taxes in respect of the Registrable Stock being registered.
"Registrable Stock" means (a) all Shares; (b) all shares of
Common Stock or Other Securities issued or issuable upon exercise of the
Warrant; and (c) any securities issued or issuable with respect to such shares
of Common Stock or Other Securities described in (a) or (b) above by way of a
stock dividend or stock split or in connection with a combination or
reclassification of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; provided, however, that any particular Registrable
Stock shall cease to be Registrable Stock when (x) a registration statement with
respect to the sale of such stock shall become effective under the 1933 Act and
such stock shall have been disposed of in accordance with such registration
statement, or (y) such stock shall have been sold pursuant to Rule 144; and
provided further, only securities issued by the Company will be deemed to be
Registrable Stock.
"Rule 144" means Rule 144 (or any successor provision) under
the 1933 Act.
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ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand Registration. As soon as practicable after receipt
of a written request from the Holder, which request may be made on or after the
90th day after the Closing and prior to the third anniversary of the Closing,
the Company shall use its best efforts to file with the Commission a shelf
registration statement on Form S-1 or such other form of registration statement
which the Company is eligible to use and which is appropriate for the
contemplated transaction providing for the registration and resale on a
continuous or delayed basis by the Holder, pursuant to Rule 415 under the 1933
Act, covering such shares of Registrable Stock as the Holder(s) of not less than
50% of the Registrable Stock may designate, and the Company shall use its best
efforts to cause such Demand Registration to become or be declared effective as
soon as practicable. The Company shall use its best efforts to keep such Demand
Registration continuously effective, supplemented and amended pursuant to the
provisions of Section 2.3 hereof until the earlier of (i) the sale by the
Holders of all shares of Registrable Stock registered in such registration or
(ii) the date that is 180 days subsequent to the effective date of such
registration. The Holder(s) of Registrable Stock shall be entitled to one Demand
Registration under this Section 2.1. The Company may decline (for a period not
to exceed 60 days) to effect a Demand Registration if a Potential Material Event
exists at the time a Demand Registration is requested; provided, that all time
periods set forth in this Section 2.1 shall be tolled during such period.
2.2 Piggyback Registrations.
(a) Right to Piggyback. If subsequent to the 90th day
after the Closing and prior to the third anniversary of the
Closing the Company proposes to register any offering of its
securities under the Securities Act, whether or not for sale
for its own account (other than on Form S-4, Form S-8 or any
successor form), and the registration form to be used permits
the registration of an offering of Registrable Stock by a
Holder (a "Piggyback Registration"), then the Company will
give prompt notice to the Holder(s) of Registrable Stock of
its intention to effect such a registration (each a "Piggyback
Notice"). Subject to Section 2.2(b) below, the Company will
include in such registration all shares of Registrable Stock
that the Holder(s) thereof have requested the Company to
include in such registration by notice to the Company within
20 days after the date of receipt of the Company's notice.
Notwithstanding any other provisions of this Agreement
(including Section 2.3), the process (including timing) of
causing a Piggyback Registration to become effective and any
decision to terminate a Piggyback Registration will be within
the sole discretion of the Company.
(b) Priority on Registrations. If any Piggyback
Registration shall be an underwritten offering, the right of
any Holder's Registrable Stock to be included in such
Piggyback Registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such
Holder's Registrable Stock in the underwriting to the extent
provided herein Notwithstanding any other provision of
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this Agreement, if the managing underwriter determines in good
faith that marketing factors require a limitation of the
number of shares to be underwritten, then the managing
underwriter may exclude shares (including Registrable Stock)
from the registration and the underwriting, and the number of
shares that may be included in the registration and the
underwriting will be allocated: (i) in the case of a
registration initiated by the Company for the purpose of
registering securities to be sold by the Company, first, to
the Company, second, to any party which as of the date hereof
has a contractual right to participate in such registration to
the extent such party's currently existing contractual
arrangements prohibit the Company from allowing the Holders of
Registrable Stock to participate pro rata with such party in
such registration, third to the Holders of Registrable Stock,
and fourth, to all other persons requesting that securities be
included in such registration; and (ii) in the case of a
registration initiated by the Company for the purpose of
registering securities to be sold by security holders of the
Company, first, to any party which has exercised its
contractual right to require that the Company initiate such
registration, second, to any party which as of the date hereof
has a contractual right to participate in such registration to
the extent such party's currently existing contractual
arrangements prohibit the Company from allowing the Holders of
Registrable Stock to participate pro rata with such party in
such registration, third to the Holders of Registrable Stock,
and fourth, to all other persons requesting that securities be
included in such registration. Within the category for the
allocation of securities to be included in the
registration/underwriting to which Holders of Registrable
Stock are assigned, such Holders will participate pro rata on
the basis of the number of shares that such Holders have
requested (consistent with their contractual rights) to be
included in the registration. If a Holder disapproves of the
terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the
managing underwriter. Any Registrable Stock excluded or
withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
2.3 Registration Procedures. In connection with any
registration hereunder, the Company will use its best efforts to, as soon as
practicable, effect the registration and the sale of such Registrable Stock in
accordance with the intended method of distribution thereof and will:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Stock
and use its best efforts to cause such registration statement
to become effective; provided, however, that before filing a
registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel,
if any, selected by the Holder copies of all such documents
proposed to be filed, which documents will be subject to the
reasonable comments of such counsel;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection
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therewith as may be necessary to keep such registration
statement effective for such period as shall be required for
the disposition pursuant to the terms of such registration of
all Registrable Stock covered thereby (but not to exceed, in
the case of the Demand Registration, the date which is 180
days subsequent to the effective date of such registration),
and in each such case comply with the provisions of the 1933
Act with respect to the disposition of all securities covered
by such registration statement during such period in
accordance with the intended methods of distribution by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Stock such
reasonable number of copies of such registration statement,
each amendment and supplement thereto, in each case including
all exhibits, the prospectus included in such registration
statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order
to facilitate the disposition of the Registrable Stock then
held, owned and being registered by such seller;
(d) use its best efforts to register or qualify such
Registrable Stock under such other securities or blue sky laws
of such jurisdictions within the United States as any seller
reasonably requests to keep such registration or qualification
in effect for as long as the relevant registration statement
is in effect and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the
Registrable Stock then held, owned and being registered by
such seller; provided, however, that the Company will not be
required (i) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this subsection (d), (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to
general service of process in any such jurisdiction;
(e) notify each seller of such Registrable Stock, at
any time when a prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of any event as
a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading and, at the request of any such seller, the Company
will promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such Registrable Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact
necessary to make the statements therein, in light of the
circumstances under which such statements are made, not
misleading;
(f) cause all such Registrable Stock to be listed on
each securities exchange on which similar securities issued by
the Company are then listed and to be qualified for trading on
each system on which similar securities issued by the Company
are from time to time qualified;
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(g) provide a transfer agent and registrar for all
such Registrable Stock not later than the effective date of
such registration statement and thereafter maintain such a
transfer agent and registrar;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such
other actions as the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such
Registrable Stock;
(i) make available for inspection, subject to
execution and delivery of customary non-disclosure and non-use
agreements, by any underwriter participating in any
disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply, subject to execution and delivery of
customary non-disclosure and non-use agreements, all
information reasonably requested by any such underwriter,
attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least 12 months beginning with the first day of the Company's
first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(k) if such registration relates to an underwritten
offering, furnish to each seller of Registrable Stock a signed
counterpart of
(x) an opinion of counsel for the Company,
which may be the head in-house counsel for the
Company, and
(y) a "comfort" letter signed by the
independent public accountants who have certified the
Company's financial statements included or
incorporated by reference in such registration
statement,
in each case covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' comfort
letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' comfort letters to be
delivered to the underwriters in underwritten public offerings
of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the
accountants' comfort letter, such other financial matters;
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(l) permit any Holder of Registrable Stock which
might be deemed, in the reasonable judgment of such Holder, to
be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or
comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel, if any,
should be included;
(m) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or
of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Registrable
Stock included in such registration statement for sale in any
jurisdiction, the Company will promptly notify each seller of
Registrable Stock thereof and will use its best efforts
promptly to obtain the withdrawal of such order; and
(n) in connection with any underwritten offering, the
Company shall have the right to designate the underwriter(s)
to manage such offering, subject (in the case of a Demand
Registration) to the approval of the Holder(s) of a majority
of the Registrable Stock to be included therein, which
approval will not be unreasonably withheld, conditioned or
delayed.
Each Holder agrees that if the Company has delivered preliminary or final
prospectuses to such Holder and after having done so the Company shall give
notice to such Holder that (A) the prospectus needs to be amended or
supplemented to comply with the requirements of the 1933 Act, (B) a stop order
suspending the effectiveness of the registration statement is issued by the
Commission or (C) a Potential Material Event shall exist, then such Holder shall
immediately cease making offers and sales of Registrable Stock and return all
remaining prospectuses to the Company if requested by the Company in such
notice; provided such cessation of making offers and sales of Registrable Stock
shall not exceed an aggregate of sixty (60) days in the case of the Demand
Registration. Following such amendment or supplement, the lifting of any stop
order or such time as the Potential Material Event shall no longer exist, the
Company shall promptly provide to such Holder notice that offers and sales may
be resumed and, to the extent appropriate, revised prospectuses, and such Holder
shall then be free to resume making offers of the Registrable Stock, or any
portion thereof, and the Company's obligation to maintain the effectiveness of
the registration statement, if any, shall be extended by an equal amount of
time.
2.4 Payment of Expenses. The Company shall pay all
Registration Expenses in connection with the Demand Registration and any
Piggyback Registration. All fees and disbursements of counsel (except to the
extent comprising "Registration Expenses" pursuant to Article 1 hereof),
accountants and other experts retained by the Holder shall be borne by the
Holder.
2.5 Participation in Underwritten Registrations. The Holder
may not participate in any registration hereunder which is underwritten unless
the Holder (a) agrees to sell the Holder's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements; and (b) completes and executes all
questionnaires, powers of attorney, indemnities, standstill or holdback
agreements,
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underwriting agreements and other documents required under the terms of such
underwriting arrangements, provided that if the Holder's Registrable Stock is
included in any underwritten registration, the Holder shall not be required to
make any representations or warranties to the Company or the underwriters other
than representations and warranties regarding the Holder and the Holder's
intended method of distribution.
2.6 Information of the Holder. As a condition to participation
in any registration hereunder, the Holder shall furnish to the Company such
information regarding the Holder and the distribution proposed by the Holder as
the Company may reasonably request and as shall be required in connection with
any registration, qualification or compliance contemplated by this Agreement.
2.7 Rule 144 Information. From and after the date hereof and
for so long as necessary in order to permit the Holders to sell the Registrable
Stock pursuant to Rule 144 under the 1933 Act, the Company will file on a timely
basis all reports required to be filed by it pursuant to Section 13 or 15(d) of
the United States Securities Exchange Act of 1934 and referred to in paragraph
(c)(1) of Rule 144 (or, if applicable, the Company will make publicly available
the information regarding itself referred to in paragraph (c)(2) of Rule 144),
in order to permit the Holders to sell the Registrable Stock, pursuant to the
terms and conditions of the applicable provisions of Rule 144.
2.8 Delay in Demand Registration. The Company shall not be
obligated to effect any Demand Registration within 90 days of a previous
registration in which Holders of Registrable Stock were afforded piggyback
registration rights pursuant to this Agreement.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by the Company. The Company agrees to
indemnify, to the extent permitted by law, the Holder, its officers and
directors and each Person who controls a Holder (within the meaning of the 0000
Xxx) against all losses, claims, damages, liabilities and expenses which arise
out of or are based upon any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such Holder,
its officers and directors or any Person who controls such Holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the 0000 Xxx) to the same
extent as provided above with respect to the indemnification of a Holder.
3.2 Indemnification by Holder. In connection with any
registration statement in which a Holder is participating, each such Holder,
severally and not jointly, will, to the extent permitted by law, indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the 0000 Xxx) against any losses, claims, damages,
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liabilities and expenses which arise out of or are based upon any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading (but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such Holder
expressly for use therein) and any failure by each such Holder to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto; provided, however, that the obligation to indemnify will be individual
to each Holder and will be limited to the net amount of proceeds received by
such Holder from the sale of Registrable Stock pursuant to such registration
statement.
3.3 Notice: Defense of Claims. Any Person entitled to
indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Agreement except to the extent the indemnifying party is materially prejudiced
by such failure. If such defense is assumed, the indemnified party may
participate in such defense at its own expense and the indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld,
conditioned or delayed). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel (in addition to local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim. No indemnified party shall consent to entry of any
judgment or settle any claim or litigation without the prior written consent of
the indemnifying party, which consent shall not be unreasonably withheld,
conditioned or delayed. Each indemnified party, as a condition to its right to
indemnification, will reasonably cooperate with the indemnifying party (at the
expense of the indemnifying party) in the defense of such claim.
3.4 Contribution. If the indemnification provided for in this
Article 3 is unavailable or insufficient to hold harmless an indemnified party
under Section 3.1 or 3.2, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to above (a) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other from the offering of the
securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other equitable
considerations. The relative benefits received by
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the indemnifying party on the one hand and the indemnified party on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering received by the indemnifying party bear to the total net proceeds
received by the indemnified party. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the indemnifying party or information
supplied by the indemnified party, and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this Section 3.4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending against any action or claim that is the subject of this section. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Any obligation of a Holder to
provide contribution will be individual to such Holder and will be limited to
the net amount of proceeds received by such Holder from the sale of Registrable
Stock that is the subject of any claim. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
3.5 Survival. The indemnification and contribution provided
for under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of any indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
ARTICLE 4
MISCELLANEOUS
4.1 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by commercial delivery
service, or mailed by registered or certified mail (return receipt requested) or
sent via facsimile (with confirmation of receipt) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to the Company, to:
The viaLink Company
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: J. Xxxxxx Xxxxxx
Fax: : (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxxx & Associates, P.C.
000 X. Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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and a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx., Esq.
Fax: (000) 000-0000
if to the Holder, to:
i2 Technologies, Inc.
000 X. Xxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Notice given by personal delivery or commercial delivery service shall be
effective upon actual receipt. Notice given by mail shall be effective three
business days after deposit in the mails or upon actual receipt if sooner.
Notice given by facsimile shall be confirmed by appropriate answer back and
shall be effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next business day after
receipt if not received during the recipient's normal business hours.
4.2 Interpretation. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words without limitation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
4.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
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4.4 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
4.5 Amendments and Waivers. Except as otherwise provided
herein, no amendment, modification, termination or cancellation of this
Agreement shall be effective as to (a) the Company, unless made in writing
signed by the Company or (b) the Holder, unless made in writing signed by the
Holder.
4.6 Successors and Assigns. This Agreement, and the rights and
obligations of a Holder hereunder, may be assigned by such Holder to any Person
to which Registrable Stock is transferred by such Holder and who agrees to be
bound by the terms of this Agreement. Any such transferee shall be deemed a
"Holder" for purposes of this Agreement; provided, that no transferee will be
deemed to be a Holder unless such transferee is the holder of not less than
50,000 shares of Registrable Stock.
4.7 Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
4.8 Remedies Cumulative. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy.
4.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas (other than the
conflicts of law principles thereof) and shall, to the maximum extent
practicable, be deemed to call for performance in Dallas County, Texas.
4.10 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
4.11 Currency. All references to "$" or "dollars" herein shall
be to the lawful currency of United States dollars.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company and the Holder have executed
this Registration Rights Agreement as of the date first written above.
COMPANY:
THE viaLINK COMPANY
By: /s/ J. XXXXXX XXXXXX
---------------------------------------
Name: J. Xxxxxx Xxxxxx
---------------------------------
Title: Chief Financial Officer
--------------------------------
HOLDER:
i2 TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Corporate Counsel
--------------------------------
