-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N6WAh36fgM7f6yVdZSp263hD/0vHhbBiene8+eYC3oAZm0Jp30zW9dmOxbb7AXHo AGFdTvcDMiBttxfOE/ikAA== 0000950134-99-009100.txt : 19991022 0000950134-99-009100.hdr.sgml : 19991022 ACCESSION NUMBER: 0000950134-99-009100 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991021 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VIALINK CO CENTRAL INDEX KEY: 0001017137 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 731247666 STATE OF INCORPORATION: OK FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-57033 FILM NUMBER: 99731633 BUSINESS ADDRESS: STREET 1: 13800 BENSON RD CITY: EDMOND STATE: OK ZIP: 73013 BUSINESS PHONE: 4059362500 MAIL ADDRESS: STREET 1: 13800 BENISON RD CITY: EDMOND STATE: OK ZIP: 73103 FORMER COMPANY: FORMER CONFORMED NAME: APPLIED INTELLIGENCE GROUP INC DATE OF NAME CHANGE: 19960618 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: I2 TECHNOLOGIES INC CENTRAL INDEX KEY: 0001009304 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 752294945 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 909 E LAS COLINAS BLVD STREET 2: 16TH FL CITY: IRVING STATE: TX ZIP: 75039 BUSINESS PHONE: 2148606000 MAIL ADDRESS: STREET 1: 909 E LAS COLINAS BLVD STREET 2: 16TH FLOOR CITY: IRVING STATE: TX ZIP: 75039 SC 13D 1 SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 The viaLink Company - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 92552Q 10 1 - -------------------------------------------------------------------------------- (CUSIP Number) Robert C. Donohoo i2 Technologies, Inc. 909 East Las Colinas Boulevard 16th Floor Irving, Texas 75039 (214) 860-6000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 12, 1999 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ] (Continued on following pages) 2 - ------------------------ ------------------------------ CUSIP NO. 92552Q 10 1 13D - ------------------------ ------------------------------ - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) i2 TECHNOLOGIES, INC. 75-2294945 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [X] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER 428,849 OF ----------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY NONE OWNED BY ----------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 428,849 WITH ----------------------------------------------- 10 SHARED DISPOSITIVE POWER NONE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 428,849 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 11.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 3 ITEM 1. SECURITY AND ISSUER. This statement on Schedule 13D relates to the common stock, par value $0.001 per share (the "Common Stock"), of The viaLink Company, an Oklahoma corporation (the "Issuer"). The principal executive offices of the Issuer are located at 13800 Benson Road, Suite 100, Edmond, Oklahoma 73013. ITEM 2. IDENTITY AND BACKGROUND. (a) The name of the person filing this statement is i2 Technologies, Inc., a Delaware corporation ("i2"). (b) The address of the principal office and principal business of i2 is 909 East Las Colinas Boulevard, 16th Floor, Irving, Texas 75039. The business address of each of i2's directors and executive officers, as of the date hereof, is c/o i2 Technologies, Inc., 909 East Las Colinas Boulevard, 16th Floor, Irving, Texas 75039. (c) i2 is a leading provider of electronic business process optimization software solutions, licensed as part of the RHYTHM family of products. Set forth in Schedule A is the name and present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of i2's directors and executive officers, as of the date hereof. (d) During the past five years, neither i2 nor, to i2's knowledge, any person named in Schedule A, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, neither i2 nor, to i2's knowledge, any person named in Schedule A, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of or prohibiting or mandating activity subject to Federal or State securities laws or finding any violation with respect to such laws. (f) The citizenship of each person named in Schedule A is set forth thereon. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On October 12, 1999, pursuant to a Securities Purchase Agreement entered into on that date with the Issuer (the "Securities Purchase Agreement"), i2 purchased from the Issuer (a) 233,918 shares of Common Stock and (b) a Common Stock Purchase Warrant to purchase an additional 194,931 shares of Common Stock (the "Warrant"). The Warrant expires on October 12, 2001 and is exercisable at a price of $25.65 per share. The aggregate consideration for the foregoing purchases was $5,000,000 in cash, which i2 financed from its working capital. None of the purchase price was represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding, trading or voting the securities. On the same date, i2 and the Issuer also entered into a Registration Rights Agreement, which provides i2 with certain registration rights relating to the Common Stock. 1 4 ITEM 4. PURPOSE OF TRANSACTION. The purpose of the transaction was for i2 to acquire an equity interest in the Issuer, in conjunction with entering into an Alliance Agreement and a Software License with the Issuer. (a) i2 has no plans or proposals which relate to or would result in the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer, except for the possible acquisition of shares of Common Stock upon exercise of, and pursuant to the terms of, the Warrant. (b) - (c) Not applicable. (d) Pursuant to the Securities Purchase Agreement, i2 and the Issuer agreed that, for so long as (i) i2 shall beneficially own (as such term is defined for purposes of the Securities Act and the rules and regulations thereunder) not less than 4.0% of the then issued and outstanding Common Stock and the Alliance Agreement between i2 and the Issuer has not been terminated or (ii) i2 shall beneficially own not less than 10.0% of the then issued and outstanding Common Stock, i2 shall have the right to designate one nominee to the Board of Directors of the Issuer. The Issuer has agreed to include such nomination in all proxy and annual meeting materials provided to its shareholders, and to refrain from making any competing nomination or recommending against election of such nominee. (e) - (j) Not applicable. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) i2 may be deemed to be the beneficial owner of all 428,849 shares of Common Stock disclosed on this Statement, including 194,931 shares that i2 has the right to acquire pursuant to the Warrant. To the knowledge of i2, such Common Stock constitutes approximately 11.5% of the issued and outstanding shares of Common Stock as of September 30, 1999. (b) i2 has the sole power to vote and to dispose of all of the above-described shares of Common Stock. To the knowledge of i2, no shares of Common Stock are beneficially owned by any of the persons named in Schedule A. (c) Except as disclosed in Item 3 above, neither i2 nor, to the knowledge of i2, any person named in Schedule A, has effected any transaction in the Common Stock during the past 60 days. (d) - (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. The Securities Purchase Agreement provides for (a) a right of first refusal on behalf of i2 in the event of certain issuances of capital stock by viaLink, (b) a restriction on 2 5 disposition of the Common Stock and Warrants by i2 and (c) a standstill agreement that restricts i2 from purchasing additional securities of, or taking certain actions with respect to, the Issuer, subject to certain exceptions contained in the Securities Purchase Agreement. Other than the Securities Purchase Agreement, Registration Rights Agreement and Warrant, to the knowledge of i2, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. The following documents are filed as exhibits: 1. Securities Purchase Agreement, dated October 12, 1999, by and between i2 and the Issuer. 2. Registration Rights Agreement, dated October 12, 1999, by and between i2 and the Issuer. 3. The viaLink Company Common Stock Purchase Warrant No. i2-001, dated October 12, 1999. 3 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: October 19, 1999 i2 Technologies, Inc. By: /s/ Robert C. Donohoo -------------------------------- Robert C. Donohoo Corporate Counsel 7 SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF i2 TECHNOLOGIES, INC.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT, INCLUDING NAME AND NAME TITLE ADDRESS OF EMPLOYER CITIZENSHIP - ---------------------------- -------------------------------- -------------------------------- ----------- Sanjiv S. Sidhu Chairman of the Board and Chief * U.S.A. Executive Officer Sandeep R. Tungare Director and President, Demand * U.S.A. Management Gregory A. Brady President * U.S.A. William M. Beecher Executive Vice President, * U.S.A. Operations and Chief Financial Officer Hiten D. Varia Executive Vice President, * U.S.A. Worldwide Development Harvey B. Cash Director General Partner U.S.A. InterWest Partners Two Galleria Tower 13455 Noel Road Suite 1670 Dallas, Texas 75240 Thomas J. Meredith Director Senior Vice President and Chief U.S.A. Financial Officer Dell Computer Corporation One Dell Way Round Rock, Texas 78682
* Such individual's principal occupation and employment is as set forth in the "Title" column, and such individual's employer is i2 Technologies, Inc., at 909 East Las Colinas Boulevard, 16th Floor, Irving, Texas 75039. 8 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- 1. Securities Purchase Agreement, dated October 12, 1999, by and between i2 and the Issuer. 2. Registration Rights Agreement, dated October 12, 1999, by and between i2 and the Issuer. 3. The viaLink Company Common Stock Purchase Warrant No. i2-001, dated October 12, 1999.
EX-99.1 2 SECURITIES PURCHASE AGREEMENT DATED OCT 12, 1999 1 EXHIBIT 1 SECURITIES PURCHASE AGREEMENT BY AND BETWEEN THE viaLINK COMPANY AND i2 TECHNOLOGIES, INC. 2 TABLE OF CONTENTS ARTICLE I PURCHASE AND SALE OF SECURITIES.........................................................................1 1.1 Purchase and Sale of Securities......................................................................1 ARTICLE II CLOSING................................................................................................2 2.1 The Closing..........................................................................................2 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................2 3.1 Organization, Standing and Power.....................................................................2 3.2 Capital Structure....................................................................................2 3.3 Authority............................................................................................3 3.4 SEC Documents; Financial Statements..................................................................4 3.5 Absence of Undisclosed Liabilities...................................................................4 3.6 Broker's and Finders' Fees...........................................................................4 3.7 Board Approval.......................................................................................5 3.8 No Material Adverse Change...........................................................................5 3.9 Litigation...........................................................................................5 3.10 Representations Complete.............................................................................5 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER............................................................5 4.1 Corporate Organization...............................................................................5 4.2 Authorization........................................................................................5 4.3 No Violation.........................................................................................6 4.4 Brokers and Finders..................................................................................6 4.5 Corporate Approval...................................................................................6 4.6 Investment Intent....................................................................................6 4.7 Access to Information................................................................................6 4.8 Accredited Investor..................................................................................6 4.9 Restricted Securities................................................................................6 4.10 Further Limitations on Disposition...................................................................7 ARTICLE V COVENANTS...............................................................................................7 5.1 Further Assurances...................................................................................7 5.2 Board Representation.................................................................................8 5.3 Right of First Refusal...............................................................................8 5.4 Market Stand-Off.....................................................................................9 5.5 Listing of Common Stock..............................................................................9 5.6 Standstill Agreement.................................................................................9 ARTICLE VI DELIVERIES AT CLOSING.................................................................................10 6.1 Warrant to Purchase Common Stock....................................................................10
i 3 6.2 Registration Rights Agreement.......................................................................10 6.3 Stock Certificate...................................................................................10 6.4 Legal Opinion.......................................................................................10 6.5 Payment of Consideration............................................................................12 ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION..........................................12 7.1 Survival of Representations.........................................................................12 7.2 Statements as Representations.......................................................................12 7.3 Indemnification by the Company......................................................................12 7.4 Indemnification by Purchaser........................................................................13 7.5 Limitation of Liability.............................................................................13 ARTICLE VIII MISCELLANEOUS PROVISIONS............................................................................13 8.1 Amendment and Modifications.........................................................................13 8.2 Waiver of Compliance................................................................................13 8.3 Expenses............................................................................................13 8.4 Remedies Waiver.....................................................................................13 8.5 Notices.............................................................................................14 8.6 Assignment..........................................................................................15 8.7 Publicity...........................................................................................15 8.8 Severability........................................................................................15 8.9 Arbitration of Disputes.............................................................................15 8.10 Governing Law.......................................................................................16 8.11 Counterparts........................................................................................16 8.12 Headings............................................................................................16 8.13 Third Parties.......................................................................................16 8.14 Further Assurances..................................................................................16 8.15 Schedules...........................................................................................16 8.16 Entire Agreement....................................................................................16
LIST OF SCHEDULES Company Disclosure Schedule Purchaser Disclosure Schedule ii 4 SECURITIES PURCHASE AGREEMENT This Securities Purchase Agreement ("AGREEMENT") is made and entered into as of October 12, 1999, by and between THE viaLINK COMPANY, an Oklahoma corporation (the "COMPANY"), and i2 TECHNOLOGIES, INC., a Delaware corporation ("PURCHASER"). RECITALS WHEREAS, the Company is authorized to issue shares of the Company's $0.001 par value common stock ("COMMON STOCK") and the warrant to purchase shares of Common Stock described herein; WHEREAS, in connection with and in consideration for the payment by Purchaser to the Company of $5,000,000 at Closing (as hereinafter defined), the Company shall issue to Purchaser (i) 223,884 shares (the "SHARES") of Common Stock and (ii) a warrant to purchase an additional 186,567 shares of the Company's Common Stock (the "WARRANT SHARES") at an exercise price of $26.80 per share (the "WARRANT"), exercisable at any time on or before the date which is two years following the Closing, all as more fully described herein and the attachments hereto; and WHEREAS, Purchaser and the Company have on this date executed and entered into certain other agreements to set forth their mutual agreements regarding (i) the marketing and sale of products and services and certain other matters, in the form of an Alliance Agreement and a Software License, and (ii) the registration of the Shares and the Common Stock issuable upon exercise of the Warrant, in the form of a Registration Rights Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I PURCHASE AND SALE OF SECURITIES 1.1 Purchase and Sale of Securities. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties and agreements herein contained, on the Closing Date, the Company shall issue to Purchaser, and Purchaser shall acquire from the Company, the Shares and the Warrant free and clear of all liens, security interests, options, rights, mortgages, pledges, restrictions on transferability of any type (other than (i) restrictions on transferability as may be applicable under federal and state securities laws, (ii) as set forth herein or therein and/or (iii) those created by Purchaser) and Purchaser shall pay on the Closing Date to the Company $5,000,000 (the "CASH CONSIDERATION") by wire transfer to such account as is designated by the Company to Purchaser in writing. 5 ARTICLE II CLOSING 2.1 The Closing. The consummation of the sale and purchase of the Shares and the Warrant referred to in Section 1.1 (the "CLOSING") shall take place on October 12, 1999 at the offices of Winstead Sechrest & Minick P.C., 5400 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270, or at such other date, time or place as the parties hereto mutually agree, either verbally or in writing. Such date is referred to herein as the "CLOSING DATE," and the Closing shall be deemed to be effective as of 9:00 a.m., Central Time, on the Closing Date. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as disclosed in a document of even date herewith and delivered by the Company to Purchaser prior to the execution and delivery of this Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents and warrants to Purchaser as follows: 3.1 Organization, Standing and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. The Company has the corporate power to own, lease and operate its properties and to carry on its business as now being conducted and as proposed to be conducted and is duly qualified to do business and is in good standing in each jurisdiction in which the failure to be so qualified and in good standing would have a material adverse effect on the Company. The Company is not in violation of any of the provisions of its Certificate of Incorporation or Bylaws. 3.2 Capital Structure. The authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, par value $0.001 per share and 10,000,000 shares of preferred stock, par value $0.001 per share, of which there were issued and outstanding as of the close of business on September 30, 1999, 3,307,318 shares of Common Stock and no shares of preferred stock. All outstanding shares of Common Stock have been duly authorized, validly issued, fully paid and are nonassessable and free of any liens or encumbrances other than any liens or encumbrances created by or imposed upon the holders thereof and have been issued in compliance with all federal and state securities laws. The Company has no subsidiaries. Except as set forth in Section 3.2 of the Company Disclosure Schedule, there are no (a) options, warrants, stock appreciation rights or other similar rights, agreements, arrangements or commitments of any character obligating the Company to issue or sell shares of its capital stock, (b) notes, bonds, debentures or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which the shareholders of the Company may vote or (c) outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of Common Stock or any other capital stock of, or any equity interest in, the Company. The Shares, the Warrant and the Warrant Shares (collectively, the "SECURITIES") have been duly authorized for issuance and sale to the Purchaser pursuant to this Agreement and are validly issued. The Shares are, and, when issued pursuant to the terms and conditions set forth in the Warrant, the Warrant Shares will be, fully paid and non-assessable, and no holder of Securities is or will be subject to personal 2 6 liability with respect to the obligations of the Company by reason of being such a holder. The Shares and the Warrant are, and the Warrant Shares, when issued, shall be, free of preemptive rights or rights of first refusal created by statute, the Company's Certificate of Incorporation or Bylaws or any agreement to which the Company is a party or by which it is bound and, based on the representations of Purchaser contained in Sections 4.6, 4.7 and 4.8 of this Agreement, are and shall be issued in compliance with all federal and state securities laws. Except for Form D filings required to perfect exemptions under applicable federal and/or state securities laws and the filing of an application to list additional shares of Common Stock with the Nasdaq SmallCap Market, no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign is necessary or required in connection with the due authorization, execution and delivery of the Operative Agreements (as hereinafter defined) or for the offering, issuance or sale of the Securities. The form of certificate that will be used to evidence the Shares will comply in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and Bylaws of the Company and with the requirements of the Nasdaq SmallCap Market. 3.3 Authority. The Company has corporate power and authority to enter into and perform its obligations under this Agreement, the Registration Rights Agreement, the Alliance Agreement, the Software License and the Warrant (collectively, the "OPERATIVE AGREEMENTS") and to consummate the transactions contemplated by the Operative Agreements. The Company has taken all action required by law, its Certificate of Incorporation and Bylaws or otherwise to authorize the execution and delivery of this Agreement and the other Operative Agreements and the consummation of the transactions contemplated hereby and thereby. The Operative Agreements have been duly executed and delivered by the Company. This Agreement and the other Operative Agreements are valid and binding agreements of the Company enforceable in accordance with their terms, except that: (a) the enforceability of this Agreement and the other Operative Agreements may be subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; (b) the enforceability of this Agreement and the other Operative Agreements is subject to and may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium, and other similar laws relating to or affecting the rights of creditors generally; and (c) any rights to indemnification and contribution may be limited by federal or state securities laws and public policy considerations. The execution and delivery of this Agreement and the other Operative Agreements does not, and the consummation of the transactions contemplated hereby and thereby (including the issuance and sale of the Securities) and compliance by the Company with its obligations under the Operative Agreements (a) shall not, with or without notice or lapse of time, or both, conflict with or constitute a breach of, or default or acceleration event under or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to (i) any provision of the Certificate of Incorporation or Bylaws of the Company or (ii) any material mortgage, indenture, lease, contract or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or its properties or assets. Assuming the accuracy of the representations and warranties of Purchaser in Sections 4.6, 4.7 and 4.8 of this Agreement and except as expressly contemplated by this Agreement or the agreements, instruments and documents contemplated hereby, no consent, approval order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or 3 7 other governmental authority (each a "GOVERNMENTAL ENTITY"), is required by or with respect to the Company or in connection with the execution and delivery of this Agreement or the other Operative Agreements or the consummation by the Company of the transactions contemplated hereby or thereby, and (b) will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its properties, assets or operations. 3.4 SEC Documents; Financial Statements. The Company has made available to Purchaser each statement, report, registration statement (with each prospectus in the form filed pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the "SECURITIES ACT")), definitive proxy statement, and other filing filed with the Securities and Exchange Commission ("SEC") by the Company since December 31, 1998 (collectively, the "COMPANY SEC DOCUMENTS"). In addition, the Company has made available to Purchaser all exhibits to the Company SEC Documents filed prior to the date hereof. As of their respective filing dates, the Company SEC Documents were filed on a timely basis and complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the Securities Act, and none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading except to the extent corrected by a subsequently filed Company SEC Document. The financial statements of the Company, including the notes thereto, included in the Company SEC Documents (the "COMPANY FINANCIAL STATEMENTS") (i) have been prepared in accordance with the published regulations of the SEC and in accordance with generally accepted accounting principles ("GAAP") (except to the extent as may be indicated in the notes thereto and with respect to interim Company Financial Statements included in Quarterly Reports on Form 10-QSB (promulgated under the Exchange Act), as required by Form 10-QSB) and (ii) fairly present the financial position of the Company as of the respective dates thereof and the results of its operations and cash flows for the periods indicated (including, in the case of any unaudited interim financial statements, reasonable estimates of normal and recurring year-end adjustments). 3.5 Absence of Undisclosed Liabilities. The Company has no material obligations or liabilities of any nature (matured or unmatured, fixed or contingent) other than (i) those set forth or adequately provided for in the Balance Sheet included in the Company's Quarterly Report on Form 10-QSB for the quarterly period ended June 30, 1999 (the "COMPANY BALANCE SHEET"), (ii) those incurred in the ordinary course of business and not required to be set forth in the Company Balance Sheet under generally accepted accounting principles, and (iii) those incurred in the ordinary course of business since the Company Balance Sheet Date and consistent with past practice. 3.6 Broker's and Finders' Fees. The Company has not incurred, nor shall it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or investment bankers' fees or any similar charges in connection with this Agreement or any transaction contemplated hereby. 4 8 3.7 Board Approval. The Board of Directors of the Company has approved this Agreement and the transactions contemplated hereby. No vote or consent of the Company's stockholders is required for the consummation of the transactions contemplated hereby. 3.8 No Material Adverse Change. Since the date of the Company Balance Sheet, the Company has conducted its business in the ordinary course and there has not occurred: (a) any material adverse change in the financial condition, liabilities, assets or business of the Company other than continuing operating losses and declining stock price; (b) any amendment or change in the Certificate of Incorporation or Bylaws of the Company; or (c) any damage to, destruction or loss of any assets of the Company, (whether or not covered by insurance) that materially and adversely affects the financial condition or business of the Company. 3.9 Litigation. There is no action, suit, proceeding, claim, arbitration or investigation pending, or as to which the Company has received any notice of assertion against the Company which in any manner challenges or seeks to prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement. 3.10 Representations Complete. None of the representations or warranties made by the Company herein or in any Schedule hereto, including the Company Disclosure Schedule, or certificate furnished by the Company pursuant to this Agreement, or the Company SEC Documents, when all such documents are read together in their entirety, contains or shall contain at the Closing any untrue statement of a material fact, or omits or shall omit at the Closing to state any material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which made, not misleading. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER Except as disclosed in a document of even date herewith and delivered by Purchaser to the Company prior to the execution and delivery of this Agreement (the "PURCHASER DISCLOSURE SCHEDULE"), Purchaser represents and warrants to Company as follows: 4.1 Corporate Organization. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Purchaser has full corporate power and authority to carry on its business as it is now being conducted. 4.2 Authorization. Purchaser has full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Purchaser has taken all action required by law, its Certificate of Incorporation and Bylaws or otherwise to authorize the execution and delivery of this Agreement and the other Operative Agreements and the consummation of the transactions contemplated hereby and thereby. This Agreement and the other Operative Agreements are valid and binding agreements of Purchaser enforceable in accordance with their terms, except that: (a) the enforceability of this Agreement and the other Operative Agreements may be subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; and (b) the enforceability of this Agreement and the other Operative Agreements may be subject to or limited by bankruptcy, 5 9 insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors generally. 4.3 No Violation. The execution and delivery of this Agreement and the other Operative Agreements do not, and the consummation of the transactions contemplated hereby and thereby shall not, conflict with, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or loss of a benefit under (i) any provision of the Certificate of Incorporation or Bylaws of Purchaser or (ii) any material mortgage, indenture, lease, contract or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Purchaser or its properties or assets. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to Purchaser or in connection with the execution and delivery of this Agreement or the other Operative Agreements or the consummation by Purchaser of the transactions contemplated hereby or thereby. 4.4 Brokers and Finders. Purchaser has not incurred, nor shall it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or investment bankers' fees or any similar charges in connection with this Agreement or any transaction contemplated hereby. 4.5 Corporate Approval. All necessary corporate actions have been taken by Purchaser for the approval of Purchaser to enter this Agreement and the transactions contemplated hereby. No vote or consent of the stockholders of Purchaser is required for the consummation of the transactions contemplated hereby. 4.6 Investment Intent. Purchaser is purchasing the Shares and the Warrant for its own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same, and does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of such securities. 4.7 Access to Information. Purchaser 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 Securities. Purchaser 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 Purchaser or to which the Company has access. 4.8 Accredited Investor. Purchaser is an "accredited investor" within the meaning of SEC Rule 501 of Regulation D, as presently in effect. The principal place of business and the principal offices of the Purchaser are located in Irving, Texas. 4.9 Restricted Securities. Purchaser understands that the Securities are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in transactions not involving a public offering and that under 6 10 such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Purchaser represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. 4.10 Further Limitations on Disposition. Purchaser agrees not to offer, sell, exchange, transfer, pledge or otherwise dispose of any of the Securities unless at that time either: (a) 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; (b) a registration statement under the Securities Act (a "REGISTRATION STATEMENT") covering such securities proposed to be sold, transferred or otherwise disposed of, describing the manner and terms of the proposed 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 (c) an authorized representative of the SEC and all applicable state securities law agencies shall have rendered written advice to Purchaser (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 law agencies will take no action, or that the staff of the SEC and/or such state securities law agencies will recommend that the SEC and/or such state securities law agencies, as applicable, take no action, with respect to the proposed offer, sale, exchange, transfer, pledge or other disposition if consummated. All certificates representing the Securities deliverable to Purchaser 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 such securities but not as to the certificates for any part of such securities as to which said legend is no longer required. ARTICLE V COVENANTS 5.1 Further Assurances. Upon the terms and subject to the conditions hereof, each of the parties hereto agrees to use commercially reasonable efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement and shall use commercially reasonable efforts to obtain all necessary waivers, consents and approvals and to effect all 7 11 necessary registrations and filings to be obtained in connection with the transactions contemplated by this Agreement. 5.2 Board Representation. For so long as (i) Purchaser shall beneficially own (as such term is defined for purposes of the Securities Act and the rules and regulations thereunder) not less than 4.0% of the then issued and outstanding Common Stock and the Alliance Agreement has not been terminated or (ii) Purchaser shall beneficially own not less than 10.0% of the then issued and outstanding Common Stock, the Purchaser shall have the right to designate one nominee to the Board of Directors of the Company. The Company shall include such nomination in all proxy and annual meeting materials provided to its shareholders, and shall not make any competing nomination or recommend against election of such nominee. 5.3 Right of First Refusal. Subject to the terms and conditions specified in this Section 5.3, the Company hereby grants to the Purchaser a right of first refusal with respect to future sales by the Company of any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (collectively, "Stock"). Each time the Company proposes to offer any Stock, the Company shall first make an offering to the Purchaser in accordance with the following provisions: (a) the Company shall deliver a notice by certified mail ("Notice") to the Purchaser stating (i) its bona fide intention to offer such Stock, (ii) the quantity of such Stock to be offered, and (iii) the price (or reasonable price range) and terms, if any, upon which it proposes to offer such Stock; (b) by written notification received by the Company, within 20 calendar days after giving of the Notice, the Purchaser may irrevocably elect to purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Stock which equals the proportion that the number of shares of Common Stock issued and held (including any shares issuable upon conversion of any Warrant then held) by Purchaser bears to the total number of shares of common stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities); (c) if all Stock which Purchaser is entitled to obtain pursuant to Section 5.3(b) are not elected to be obtained as provided in Section 5.3(b), the Company may, during the 120-day period following the expiration of the period provided in Section 5.3(b), offer the remaining unsubscribed portion of such Stock to any person or persons at a price not substantially less than, and upon terms not substantially more favorable to the offeree than, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Stock within such period, or if such agreement is not consummated within 120 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Stock shall not be offered unless first reoffered to the Purchaser in accordance herewith; (d) the right of first refusal in this Section 5.3 shall not be applicable (i) to the issuance or sale of shares of common stock (or options therefor) to employees, officers, directors, advisors or consultants of the Company for the primary purpose of soliciting or retaining their employment, (ii) the issuance of securities pursuant to the conversion or 8 12 exercise of convertible or exercisable securities, (iii) the issuance of securities 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, or (iv) the issuance and sale of securities in an underwritten public offering if the managing underwriter(s) of such offering shall notify Purchaser in writing that the exercise of Purchaser's right of first refusal pursuant to this Section 5.3 would be reasonably likely to materially adversely effect the success of such offering; and (e) the right of first refusal will terminate immediately prior to the closing of any merger or consolidation of the Company (i) whereby the Company's equity changes by more than 50% or (ii) in which the Company is not the surviving entity if the shareholders of the Company immediately prior to such merger or consolidation do not own at least 50% of the equity of the surviving entity after the closing of such merger or consolidation. 5.4 Market Stand-Off. Notwithstanding anything to the contrary in this Agreement, without the prior written consent of the Company, (a) Purchaser shall not sell or otherwise dispose of Securities prior to the 90th day after the Closing, and (b) if requested by the managing underwriter of any underwritten public offering of Common Stock by the Company for its own account, Purchaser shall agree not to sell or otherwise dispose of Securities held by Purchaser in any transaction other than pursuant to such underwriting for such period (not to exceed 180 days) as determined in the discretion of the Company or such underwriter (such agreement to be in writing in a form satisfactory to the Company and such managing underwriter), provided that Purchaser shall not be required to enter into such an agreement unless each person or entity participating in such offering, and each director and executive officer of the Company, enters into a substantially identical agreement relating to such underwriting. The Company may impose stop-transfer instructions to its transfer agent with respect to the securities subject to the restriction described in this Section 5.4 until the end of the applicable "lock-up" periods. 5.5 Listing of Common Stock. As soon as reasonably practicable following the Closing Date, the Company will use its best efforts to cause the Shares and Warrant Shares to be listed for trading on the Nasdaq SmallCap Market. 5.6 Standstill Agreement. As of the date of this Agreement, except as previously disclosed by Purchaser to the Company in writing, Purchaser confirms that neither it nor its affiliates beneficially own any debt or equity securities of the Company, or any direct or indirect options or other rights to acquire any such securities (hereinafter collectively referred to as "COMPANY SECURITIES"). Purchaser agrees that neither Purchaser nor any of its affiliates will: (a) except in accordance with the terms of a specific request from the Company, propose or publicly announce or otherwise disclose an intent to propose, or enter into or agree to enter into, singly or with any other person (directly or indirectly), (i) any form of business combination, acquisition (whether of securities or assets), or other transaction relating to the Company or any majority-owned affiliate thereof or (ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any majority-owned affiliate thereof, 9 13 (b) make, initiate or participate in any demand, request or proposal (other than a proposal made privately to the Board of Directors of the Company or any officer of the Company) to amend, waive or terminate any provision of this Agreement, or (c) (i) except as expressly authorized by the last sentence of this Section 5.6, acquire, or offer, propose or agree to acquire, by purchase or otherwise, any Company Securities (now existing or hereafter created), (ii) except in accordance with the terms of a specific request from the Company, make, initiate, or in any way participate in, any solicitation of proxies with respect to any Company Securities (now existing or hereafter created) (including by the execution of action by written consent), (iii) except in accordance with the terms of a specific request from the Company, become a participant in any election contest with respect to the Company, (iv) except in accordance with the terms of a specific request from the Company, participate in or encourage the formation of any partnership, syndicate, or other group (A) which owns or seeks or offers to acquire beneficial ownership of any Company Securities other than a partnership, syndicate or other group which in the aggregate owns less than 19.9% of the voting power of all then outstanding Company Securities, (B) which seeks to effect control of the Company or (C) for the purpose of circumventing any provision of this Agreement, or (v) otherwise act, alone or in concert with others (including by providing financing for another person), to seek or to offer to control or influence, in any manner, the management, board of directors, or policies of the Company and or its affiliates except pursuant to the board nominee provided pursuant to Section 5.2. Notwithstanding the foregoing, nothing contained herein will be deemed to restrict Purchaser from taking any action under subsection (c)(i) above if, upon consummation of such action, all Company Securities held by Purchaser, directly or indirectly, would represent nineteen and nine tenths percent (19.9%) or less of the voting power of all then outstanding Company Securities. ARTICLE VI DELIVERIES AT CLOSING 6.1 Warrant to Purchase Common Stock. The Company shall execute and deliver to Purchaser the Warrant. 6.2 Registration Rights Agreement. The Company and Purchaser shall execute and enter into the Registration Rights Agreement. 6.3 Stock Certificate. The Company shall issue and deliver to Purchaser a stock certificate for the Shares in accordance with the provisions of this Agreement. 6.4 Legal Opinion. Counsel for the Company shall deliver, in form and substance satisfactory to counsel for the Purchaser, a legal opinion to the effect set forth below: (a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Oklahoma. The Company has corporate power and authority to own, lease and operate its properties and to conduct its 10 14 business as described in the Company SEC Documents and to enter into and perform its obligations under each of the Operative Agreements. (b) The Securities have been duly authorized for issuance and sale to the Purchaser pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein or in the Warrant, as the case may be, will be validly issued and fully paid and non-assessable, and no holder of Securities is or will be subject to personal liability with respect to the obligations of the Company by reason of being such a holder. The issuance of the Securities is not subject to preemptive or other similar rights of any securityholder of the Company created by statute, under the Certificate of Incorporation or Bylaws of the Company or under any documents or agreements filed or incorporated by reference by the Company with the SEC as exhibits to its registration statement on Form SB-2 (Reg. No. 333-83315), including all amendments thereto (the "SEC EXHIBITS"). (c) The Operative Agreements have been duly authorized, executed and delivered by the Company. This Agreement, the Registration Rights Agreement and the Warrant constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as may be subject to or limited by (i) bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent transfer and other similar laws affecting the rights of creditors generally and (ii) general equitable principles (whether relief is sought at law or in equity), including concepts of materiality, reasonableness, good faith and fair dealing; and except as any rights to indemnification and contribution may be limited by federal or state securities laws and public policy considerations. (d) The form of certificate used to evidence the Shares complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and Bylaws of the Company and the requirements of the Nasdaq SmallCap Market. (e) Except for Form D filings required to perfect exemptions under applicable federal and/or state securities laws and the filing of an application to list additional shares of Common Stock with the Nasdaq SmallCap Market, no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign is necessary or required in connection with the due authorization, execution and delivery of the Operative Agreements or for the offering, issuance or sale of the Securities. (f) The execution, delivery and performance of the Operative Agreements and the consummation of the transactions contemplated in the Operative Agreements (including the issuance and sale of the Securities) and compliance by the Company with its obligations under the Operative Agreements do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or acceleration event under or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to any SEC Exhibit to which the Company is a party or by which it may be bound, or to which 11 15 any of the property or assets of the Company are subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the Company), nor will such action result in any violation of the provisions of the Certificate of Incorporation or Bylaws of the Company, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to such counsel, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its properties, assets or operations. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). 6.5 Payment of Consideration. Purchaser shall deliver the Cash Consideration specified in Section 1.1. ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 7.1 Survival of Representations. All representations and warranties of the parties as contained in this Agreement (including the Disclosure Schedules) shall survive the Closing and shall terminate on the date that is one year after the Closing; provided that there shall be no limitation period for matters involving fraud or intentional misrepresentation nor for covenants and agreements of the parties. 7.2 Statements as Representations. All statements contained in the Company Disclosure Schedule and any certificate delivered pursuant to this Agreement shall be deemed representations and warranties within the meaning of Section 7.1 hereof. 7.3 Indemnification by the Company . Subject to the limitations set forth in this Article VII, the Company hereby agrees to indemnify, defend and hold harmless Purchaser, any subsidiary, director, officer, employee, agent or representative of Purchaser (individually, a "PURCHASER INDEMNITEE" and collectively, "PURCHASER INDEMNITEES") from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties, attorneys' fees and expenses (collectively, "DAMAGES") asserted against, resulting from, imposed upon or incurred by the Purchaser Indemnitees or any Purchaser Indemnitee, resulting from, or arising out of any breach of any representation, warranty or agreement of the Company, contained in or made pursuant to this Agreement. Exercise of the foregoing indemnification rights shall be the sole remedy of any Purchaser Indemnitee with respect to any breach by the Company of its representations or warranties contained in this Agreement. The maximum aggregate liability of the Company pursuant to this Section 7.3 with respect to any breach by the Company of such representations or warranties will be limited to Five Million and 00/100 Dollars ($5,000,000.00), plus any 12 16 amounts paid by Purchaser to exercise the Warrant, whether such liability is asserted in an action brought in contract, in tort or pursuant to some other theory and whether the possibility of such liability was made known to or was foreseeable by the Company. Accordingly, the Purchaser agrees to assume the responsibility for insuring against or otherwise bearing the risk of greater damages. 7.4 Indemnification by Purchaser. Subject to the limitations set forth in this Article VII, Purchaser hereby agrees to indemnify, defend and hold harmless the Company, any subsidiary, director, officer, employee, agent or representative of the Company (individually, an "COMPANY INDEMNITEE" and collectively, "COMPANY INDEMNITEES") from and against all Damages asserted against, resulting from, imposed upon or incurred by the Company Indemnitees or any Company Indemnitee, resulting from, or arising out of any breach of any representation, warranty or agreement of Purchaser, contained in or made pursuant to this Agreement. Exercise of the foregoing indemnification rights shall be the sole remedy of any Company Indemnitee with respect to any breach by Purchaser of its representations or warranties contained in this Agreement. 7.5 Limitation of Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS AN EXPRESSLY BARGAINED FOR PORTION OF THE CONSIDERATION FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. ARTICLE VIII MISCELLANEOUS PROVISIONS 8.1 Amendment and Modifications. This Agreement may be amended, modified and supplemented only by written agreement between the parties hereto which states that it is intended to be a modification of this Agreement. 8.2 Waiver of Compliance. Any failure of the Company or Purchaser to comply with any obligation, covenant, agreement or condition herein may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. 8.3 Expenses. The parties agree that all fees and expenses incurred by them in connection with this Agreement and the transactions contemplated hereby shall be borne by the party incurring such fees and expenses, including, without limitation, all fees of counsel, actuaries and accountants. 8.4 Remedies Waiver. All rights and remedies existing under this Agreement are cumulative to and not exclusive of, any rights or remedies otherwise available under 13 17 applicable law. No failure on the part of any party to exercise or delay in exercising any right hereunder shall be deemed a waiver thereof, nor shall any single or partial exercise preclude any further or other exercise of such or any other right. No right or remedy of a party shall be deemed waived unless expressly made a term, covenant or condition in this Agreement. 8.5 Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or by commercial delivery service, sent by facsimile transmission with confirmation of receipt, or mailed by certified or registered mail (return receipt requested) with postage prepaid, to the parties at the following address (or such other address for a party as shall be specified by like notice): if to the Company, to: The viaLink Company 13800 Benson Rd. Edmond, Oklahoma 73103 Attn: J. Andrew Kerner Fax: (405) 936-2599 with a copy (which shall not constitute notice) to: Richard M. Klinge & Associates, P.C. 510 E. Memorial Road, Suite C-1 Oklahoma City, Oklahoma 73114 Attention: Richard M. Klinge, Esq. Fax: (405) 775-9003 and a copy (which shall not constitute notice) to: Winstead Sechrest & Minick P.C. 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attn: Robert E. Crawford, Jr., Esq. Fax: (214) 745-5390 if to Purchaser, to: i2 Technologies, Inc. 909 E. Las Colinas Blvd., 16th Floor Irving, Texas 75039 Attn: Robert C. Donohoo Fax: (214) 860-6893 14 18 with a copy (which shall not constitute notice) to: Brobeck, Phleger & Harrison LLP 301 Congress Avenue, Suite 1200 Austin, Texas 78701 Attn: Ronald G. Skloss fax: (512) 477-5813 8.6 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties hereto without the prior written consent of the other party. 8.7 Publicity. Neither the Company nor Purchaser shall make or issue, or cause to be made or issued, any announcement or written statement concerning this Agreement or the transactions contemplated hereby for dissemination to the general public without the prior consent of the other party. This provision shall not apply, however, to any announcement or written statement required to be made by law or the regulations of any federal or state governmental agency or by obligations pursuant to any listing agreement with any national securities exchange or with the National Association of Securities Dealers, Inc., except that the party required to make such announcement shall, whenever practicable, consult with the other party concerning the timing and content of such announcement before such announcement is made. 8.8 Severability. If any portion of this Agreement shall be deemed illegal, void or unenforceable by a court of competent jurisdiction, the remaining portions 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. 8.9 Arbitration of Disputes. The parties agree that any controversy or claim (whether such controversy or claim is based upon or sounds in statute, contract, tort or otherwise) arising out of or relating to this Agreement, any performance or dealings between the parties with respect to this Agreement, or any dispute arising out of the interpretation or application of this Agreement, which the parties are not able to resolve, shall be settled exclusively by arbitration in Dallas, Texas by a single arbitrator pursuant to the American Arbitration Association's Commercial Arbitration Rules then in effect and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof and such arbitrator shall have the authority to grant injunctive relief in a form similar to that which a court of law would otherwise grant. The arbitrator shall be chosen from a panel of licensed attorneys having at least fifteen (15) years of professional experience who are familiar with the subject matter of this Agreement. The arbitrator shall be appointed within thirty (30) days of the date the demand for arbitration was sent to the other party. Discovery shall be permitted in accordance with the Federal Rules of Civil Procedure. If an arbitration proceeding is brought pursuant to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, costs and necessary disbursements incurred in addition to any other relief to which such party may be entitled. 15 19 8.10 Governing Law. This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of the State of Texas (excluding its choice of laws rules). 8.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.12 Headings. The headings of the Sections and Articles of this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement. 8.13 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or corporation other than the parties hereto and their successors or assigns, any rights or remedies under or by reason of this Agreement. 8.14 Further Assurances. Each of the parties hereto agrees that from time to time, at the request of any of the other parties hereto and without further consideration, it will execute and deliver such other documents and take such other action as such other party may reasonably request in order to consummate more effectively the transactions contemplated hereby. 8.15 Schedules. The Schedules to this Agreement are deemed incorporated in this Agreement and may contain information that is not expressly required to be disclosed by this Agreement. 8.16 Entire Agreement. This Agreement, including the Schedules hereto, the other documents and the certificates delivered pursuant to the terms hereof, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly and in accordance with its terms and without strict construction in favor of or against either party. [Signature page follows.] 16 20 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereto duly authorized, all as of the day and year first above written. i2 TECHNOLOGIES, INC., a Delaware corporation By: /s/ Robert C. Donohoo ---------------------------------- Name: Robert C. Donohoo Title: Corporate Counsel THE viaLINK COMPANY, an Oklahoma corporation By: /s/ J. Andrew Kerner ---------------------------------- Name: J. Andrew Kerner Title: Chief Financial Officer [SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT] EX-99.2 3 REGISTRATION RIGHTS AGREEMENT, DATED OCT 12, 1999 1 EXHIBIT 2 REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN THE viaLINK COMPANY AND i2 TECHNOLOGIES, INC. 2 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.......................................................................8 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.................................................................................11 4.3 Counterparts...................................................................................11 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............................................................................12 4.9 Governing Law..................................................................................12 4.10 Rules of Construction..........................................................................12 4.11 Currency.......................................................................................12
i 3 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 4 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. 2 5 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 3 6 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 4 7 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; 5 8 (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; 6 9 (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, 7 10 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 1933 Act) 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 1933 Act) 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 1933 Act) against any losses, claims, damages, 8 11 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 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 9 12 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 1933 Act) 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 13800 Benson Road Edmond, Oklahoma 73103-6417 Attention: J. Andrew Kerner Fax: : (405) 936-2599 with a copy (which shall not constitute notice) to: Richard M. Klinge & Associates, P.C. 510 E. Memorial Road, Suite C-1 Oklahoma City, Oklahoma 73114 Attention: Richard M. Klinge, Esq. Fax: (405) 775-9003 10 13 and a copy (which shall not constitute notice) to: Winstead Sechrest & Minick P.C. 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attn: Robert E. Crawford, Jr., Esq. Fax: (214) 745-5390 if to the Holder, to: i2 Technologies, Inc. 909 E. Las Colinas Blvd., 16th Floor Irving, Texas 75039 Attention: Robert C. Donohoo Fax: (214) 860-6893 with a copy (which shall not constitute notice) to: Brobeck, Phleger & Harrison LLP 301 Congress Avenue, Suite 1200 Austin, Texas 78701 Attention: Ronald G. Skloss Fax: (512) 477-5813 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. 11 14 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.] 12 15 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. Andrew Kerner -------------------------------------- Name: J. Andrew Kerner Title: Chief Financial Officer HOLDER: i2 TECHNOLOGIES, INC. By: /s/ Robert C. Donohoo -------------------------------------- Name: Robert C. Donohoo Title: Corporate Counsel EX-99.3 4 THE VIALINK COMPANY COMMON STOCK PURCHASE WARRANT 1 EXHIBIT 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. i2-001 Right to Purchase Shares of Common Stock of The viaLink Company THE VIALINK COMPANY COMMON STOCK PURCHASE WARRANT October 12, 1999 The viaLink Company, an Oklahoma 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 October 12, 2001, up to 186,567 fully paid and nonassessable shares (the "Warrant Shares") of the Company's Common Stock, $0.001 par value, at a purchase price per share of $26.80 (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 October 12, 1999, 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 Fair Market Value shall be the average of the last 2 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 that certain Common Stock Purchase Warrant, dated October 12, 1999, issued by the Company to i2 Technologies, Inc. which originally granted to i2 Technologies, Inc. the right to purchase 186,567 shares of Common Stock (Warrant No. i2-001). 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 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 October 12, 1999, 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 October 12, 1999, or Other Securities pursuant to Section 4 or otherwise. 2 3 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. 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 3 4 date fixed for the determination of shareholders eligible to receive) shall have become entitled to receive, without payment therefor, (a) other or additional stock or other securities or property (other than cash) by way of dividend, or (b) any cash (excluding cash dividends payable solely out of earnings or earned surplus of the Company), or (c) 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 Sections 4 and 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 4 5 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 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. If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock (except (a) upon exercise of one or more of the Warrants or (b) pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of October 12, 1999) 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. 5.3 Option Grants. In the event that at any time after October 12, 1999 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 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 5 6 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. 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 Section 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 such expiration or termination had such Options or Convertible Securities, to the extent outstanding immediately prior to such expiration or termination, never been issued. 6 7 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. (c) 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 7 8 corporation, the 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. (d) 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 8 9 consolidate with or merge into 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 to the registration rights in respect thereof as provided in the Registration Rights Agreement between the Company and i2, dated October 12, 1999, in accordance with the terms thereof. 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 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 9 10 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 10 11 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), October 12, 2001. 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. 11 12 IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first written above. THE VIALINK COMPANY By: /s/ J. Andrew Kerner -------------------- Name: J. Andrew Kerner Title: Chief Financial Officer [SIGNATURE PAGE TO WARRANT] 13 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 14 proposed 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: - ---------------------------- 2 15 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: - ---------------------------- 3 -----END PRIVACY-ENHANCED MESSAGE-----