Exhibit 4(v)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
October __, 1997, by and between I-LINK INCORPORATED (formerly known as
Medcross, Inc.), a Florida corporation (the "Company"), and WINTER HARBOR,
L.L.C., a Delaware limited liability company (the "Investor").
WHEREAS, the Company has entered into a Securities Purchase Agreement (the
"Securities Purchase Agreement"), dated as of September 30, 1997, together with
the Investor, pursuant to which the Company is issuing and selling to the
Investor shares of the Company's Series M Participating Convertible Preferred
Stock (the "Series M Preferred") and warrants to acquire shares of the Company's
Common Stock; and
WHEREAS, the Company has agreed to grant certain rights with respect to shares
of the Series M Preferred (and the Common Stock issuable upon conversion
thereof) and shares of Common Stock issuable upon exercise of the warrants
issued to the Investor pursuant to the Securities Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following respective
meanings:
1.1 "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.2 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the Commission's declaration or ordering
of the effectiveness of such registration statement.
1.3 "Registrable Securities" means any and all shares of (i) the Company's
Series M Preferred issued to the Investor under the Securities Purchase
Agreement, (ii) Common Stock of the Company, issued or issuable upon conversion
of the Series M Preferred, (iii)
Common Stock of the Company issued or issuable upon exercise of Warrants issued
to the Investor under the Securities Purchase Agreement, and (iv) any securities
of the Company issued or issuable with respect to any securities referred to in
clauses (i), (ii) and (iii) above, upon any stock split, stock dividend,
reclassification, recapitalization or similar event, but excluding from the
foregoing clauses (i), (ii) and (iii) shares that (A) have been sold to or
through a broker, dealer or underwriter in a public distribution or a public
securities transaction, or (B) are then eligible to be sold without limitation,
pursuant to Rule 144(k) promulgated under the Securities Act (or any similar
successor provision thereto), and the holder of such shares is not then an
"affiliate" of the Company within the meaning of such Rule 144(k) (and has not
been such an affiliate for the preceding three months); to the extent that such
holder is an "affiliate" of the Company within the meaning of Rule 144, such
that such holder's shares of underlying Common Stock are not eligible to be sold
pursuant to Rule 144(k) without limitation, such shares of underlying Common
Stock shall remain Registrable Securities.
1.4 "Registration Expenses" shall mean all expenses, except Selling
Expenses, incurred by the Company in complying with Articles 2, 3 and 4 hereof
and in effecting any registration described therein, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of legal counsel and accountants for the
Company, fees and disbursements of one legal counsel for the selling
shareholders, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
1.5 "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.6 "Selling Expenses" shall mean all underwriting fees, discounts,
selling commissions and stock transfer taxes applicable to the Registrable
Securities registered by the Investor.
ARTICLE 2
REQUESTED REGISTRATION
2.1 Request for Registration. The Investor may request, in writing, that
the Company effect a registration or qualification with respect to all or part
of the Registrable Securities. In the event the Company shall receive from the
Investor such a written request, the Company will:
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(a) use its best efforts to effect such registration or qualification
as soon as practicable (including, without limitation, undertaking to file post-
effective amendments, appropriate qualifications under applicable blue sky or
other state securities laws, and undertaking to effect appropriate compliance
with applicable regulations issued under the Securities Act, and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request; provided, however, that
the Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Article 2:
(i) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) After the Company has effected three such requested
registrations pursuant to this Article 2 (not including registrations on Form
S-3), each such registration has been declared or ordered effective, and the
securities offered pursuant to each such registration have been sold; or
(iii) If the Company then meets the eligibility requirements
applicable to the use of Form S-3 in connection with such registration and is
able to effect such requested registration pursuant to Article 4 hereof.
(b) Subject to the foregoing clauses (i) through (iii), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Investor; provided, however, that if the Company shall furnish to the
Investor a certificate signed by the chief executive officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed as a result of a pending corporate
transaction, the Company shall have the right to defer such filing for a period
of not more than 90 days after receipt of the request of the Investor, provided,
however, that the Company shall not be permitted to exercise such deferral right
under this Section 2.1(b) or Section 4.1(c) hereof more than once in any 365-day
period.
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2.2 Underwriting.
(a) The distribution of the Registrable Securities covered by the
request of the Investor may, at the option of the Investor, be effected by means
of an underwritten offering.
(b) If the Investor elects to sell Registrable Securities pursuant to
an underwritten offering, the Company and the Investor shall enter into an
underwriting agreement in customary form with a managing underwriter of
nationally recognized standing selected for such underwriting by the Investor,
subject to the approval of the Company, which will not be unreasonably withheld
or delayed. Notwithstanding any other provision of this Article 2, if the
managing underwriter advises the Investor in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
underwriters may exclude shares requested to be included in such registration;
provided, however, that the Investor shall have first claim on the number of
shares of Registrable Securities that may be included in the registration. No
Registrable Securities excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such registration.
(c) If the Investor disapproves of the terms of the underwriting, the
Investor may elect to withdraw therefrom by written notice to the Company and
the managing underwriter. The Registrable Securities so withdrawn shall also be
withdrawn from registration.
2.3 Inclusion of Shares by Company. If the managing underwriter for an
underwritten offering has not limited the number of Registrable Securities to be
underwritten, the Company may include securities for its own account or for the
account of others in such registration if the managing underwriter so agrees and
if the number of Registrable Securities held by the Investor which would
otherwise have been included in such registration and underwriting will not
thereby be limited. The inclusion of such shares shall be on the same terms as
the registration of shares held by the Investor. In the event that the
underwriters exclude some of the securities to be registered, the securities to
be sold for the account of the Company and any other holders shall be excluded
in their entirety prior to the exclusion of any Registrable Securities held by
the Investor.
ARTICLE 3
COMPANY REGISTRATION
3.1 Notice of Registration to the Investor. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans on Form S-8 (or any
successor
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form), or (ii) a registration relating solely to a Commission Rule 145
transaction on Form S-4 (or any successor form), the Company will:
(a) promptly give to the Investor written notice thereof; and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within 15 days after receipt by the Investor of such written notice from the
Company described in Section 3.1(a).
3.2 Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Investor as a part of the written notice given pursuant to Section
3.1(a). In such event, the right of the Investor to registration pursuant to
this Article 3 shall be conditioned upon the Investor's participation in such
underwriting and the inclusion of the Investor's Registrable Securities in the
underwriting to the extent provided herein. If the Investor proposes to
distribute its securities through such underwriting, it shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise the Investor, and the number of shares of Common Stock to be
included in such registration shall be allocated as follows: first, for the
account of the Company, all shares of Common Stock proposed to be sold by the
Company; second, for the account of the Investor participating in such
registration, the number of shares of Common Stock requested to be included in
the registration by the Investor at the time of filing the registration
statement, and third, for the account of any other shareholders of the Company
participating in such registration, the number of shares of Common Stock
requested to be included in the registration by such other shareholders in
proportion, as nearly as practicable, to the respective amounts of Common Stock
that are proposed to be offered and sold by such other shareholders of Common
Stock at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriters'
marketing limitation shall be included in such registration.
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(b) The Company shall advise the Investor of any such limitation and
of the number of shares of Registrable Securities held by the Investor that may
be included in the registration and underwriting at the time of filing the
registration statement. If the Investor disapproves of the terms of any such
underwriting, the Investor may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not the Investor has elected to include securities
in such registration.
ARTICLE 4
REGISTRATION ON FORM S-3
4.1 Request for Registration.
(a) In addition to the rights set forth in Articles 2 and 3 hereof,
if the Investor requests that the Company file a registration statement on Form
S-3 (or any successor to Form S-3) for a public offering of shares of
Registrable Securities in which the reasonably anticipated aggregate price to
the public, net of underwriting discounts and fees, would exceed $500,000 and
the Company is a registrant entitled to use Form S-3 (or any successor form to
Form S-3) to register such shares for such an offering, the Company shall use
its best efforts to cause such shares to be registered for the offering as soon
as practicable on Form S-3 (or any such successor form to Form S-3).
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Article 4:
(i) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) more than once in any twelve-month period.
(c) Subject to the foregoing clauses (i) and (ii), the Company shall
file a registration statement on Form S-3 covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Investor; provided, however, that if the Company shall furnish to the
Investor a
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certificate signed by the chief executive officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders, as the result of a
pending corporate transaction, for such registration statement to be filed on or
before the date filing would be required, and it is therefore essential to defer
the filing of such registration statement, the Company shall have the right to
defer such filing for a period of not more than 90 days after receipt of the
request of the Investor (provided, however, that the Company shall not be
permitted to exercise such deferral right under this Section 4.1(c) or Section
2.1(b) hereof more than once in any 365-day period).
4.2 Underwriting.
(a) The distribution of the Registrable Securities covered by the
registration on Form S-3 shall be effected by means of the method of
distribution selected by the Investor. If such distribution is effected by means
of an underwriting, the right of the Investor to registration pursuant to this
Article 4 shall be conditioned upon the Investor's participation in such
underwriting, if any, and the inclusion of the Investor's Registrable Securities
in such underwriting.
(b) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting, the Company and the
Investor shall enter into an underwriting agreement in customary form with a
managing underwriter of nationally recognized standing selected for such
underwriting by the Investor. Notwithstanding any other provision of this
Article 4, if the managing underwriter advises the Investor in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the underwriters may exclude some or all of the shares
requested to be included in such registration, provided, however, that the
Investor shall have first claim on the number of shares of Registrable
Securities that may be included in the registration. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration.
(c) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting and if the Investor
disapproves of the terms of the underwriting, the Investor may elect to withdraw
therefrom by written notice to the Company and the managing underwriter. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration.
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4.3 Inclusion of Shares by Company. If the distribution of the Registrable
Securities pursuant to this Article 4 is effected by means of an underwriting
and if the managing underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or for the account of others in such registration if the managing
underwriter so agrees and if the number of Registrable Securities held by the
Investor requesting registration on Form S-3 which would otherwise have been
included in such registration and underwriting will not thereby be limited. The
inclusion of such shares shall be on the same terms as the registration of
shares held by the Investor requesting such registration. In the event that the
underwriters exclude some of the securities to be registered on Form S-3, the
securities to be sold for the account of the Company and any other holders shall
be excluded in their entirety prior to the exclusion of any Registrable
Securities held by the Investor.
ARTICLE 5
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Articles 2, 3 or 4 shall be borne by the
Company. Selling Expenses attributable to the sale of Registrable Securities by
the Investor shall be borne by the Investor.
ARTICLE 6
REGISTRATION PROCEDURES
In the case of each registration or qualification effected by the Company
pursuant to this Agreement, the Company will keep the Investor advised in
writing as to the initiation of each registration and qualification and as to
the completion thereof. At its expense, the Company will:
(a) Keep such registration or qualification effective and current for
a period of 180 days (or such longer period as may be necessary to accommodate
the filing of amendments or supplements necessary to comply with the Securities
Act) or until the Investor has completed the distribution described in the
registration statement relating thereto, whichever first occurs;
(b) Furnish such number of prospectuses and other documents incident
thereto as the Investor from time to time may reasonably request;
(c) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be
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reasonably requested by the Investor or any managing underwriter for the
distribution of the Registrable Securities covered by the registration
statement; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdiction;
(d) Use its best efforts to cause all Registrable Securities covered by
the registration statement to be listed or accepted for quotation on a national
securities exchange or automated quotation system;
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. The Investor participating
in such underwriting shall also enter into and perform its obligations under
such an agreement;
(f) Subject to receiving reasonable assurances of confidentiality, for a
reasonable period after the filing of such registration statement, and
throughout each period during which the Company is required to keep a
registration effective, make available for inspection by the Investor, and any
underwriters, and their respective counsel, such financial and other information
and books and records of the Company, and cause the officers, directors,
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries as shall be reasonably necessary, in the judgment
of such counsel, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act;
(g) Notify the Investor, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and
(h) Promptly notify the Investor and any underwriters, and confirm such
advice in writing, (i) when such registration statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such registration statement or
any post-effective amendment, when the same has become effective, (ii) of any
comments by the Commission, by the National Association of Securities Dealers
Inc. ("NASD"), and by the blue sky or securities commissioner or regulator of
any state with respect thereto or any
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request by any such entity for amendments or supplements to such registration
statement or prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings for
that purpose, (iv) if at any time the representations and warranties of the
Company cease to be true and correct in all material respects, and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities covered by the registration
statement for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
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ARTICLE 7
INDEMNIFICATION
7.1 The Company will indemnify the Investor, each of its officers,
directors, members, partners, shareholders, employees and agents, and each
person controlling any such persons within the meaning of Section 15 of the
Securities Act, with respect to which registration or qualification has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on (i) any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereof, incident to any such
registration or qualification, or (ii) any omission (or alleged omission) to
state therein, a material fact required to be stated therein or necessary to
make the statements therein, not misleading, or (iii) any violation (or alleged
violation) by the Company of any rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction by the Company in connection with any such
registration or qualification, and will reimburse the Investor, each of its
officers, directors, members, partners, shareholders, employees and agents, and
each person controlling any such persons, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by the
Investor or underwriter and expressly intended for use in such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereof. Expenses (including attorneys' and accountants' fees)
incurred in defending a civil or criminal claim, action, suit, or proceeding
shall be paid by the Company in advance of the final disposition of the matter
upon receipt of an undertaking satisfactory to the Company by or on behalf of
any person or entity entitled to indemnification pursuant to this Section 7.1 to
repay such amount if such person or entity is ultimately determined not to be
entitled to indemnity.
7.2 The Investor will, if Registrable Securities held by the Investor are
included in the securities as to which such registration or qualification is
being effected, indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such a registration
statement, and each person who controls the Company or such
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underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance or (ii) any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such
directors, officers, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular, other document or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by the Investor and expressly intended for use in such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof; provided, however, that the obligations of the
Investor hereunder shall be limited to an amount equal to the net proceeds to
the Investor from the sale of Registrable Securities sold pursuant to
registration as contemplated herein.
7.3 Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party, whose approval shall not unreasonably be
withheld. The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall bear the expense
of such defense of the Indemnified Party if representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, unless such failure is materially prejudicial to the ability of the
Indemnifying Party to defend the action. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff
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to such Indemnified Party of a release from all liability in respect of such
claim or litigation.
7.4 If the indemnification provided for in Section 7.1 or 7.2 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in
Section 7.1 or 7.2, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the sellers of Registrable Securities
on the other hand in connection with statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses, as well as any other relevant equitable
considerations. 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 relates to
information supplied by the Company or the sellers of Registrable Securities and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Investor agree that it would not be just and equitable if contributions pursuant
to this Section 7.4 were to be determined by pro rata allocation (even if all
sellers of Registrable Securities were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this Section 7.4.
The amount paid by an Indemnified Party as a result of the expenses, claims,
losses, damages or liabilities (or actions or proceedings in respect thereof)
referred to in the first sentence of this Section 7.4 shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any claim, action or proceeding which
is the subject of this Section 7.4. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of sellers of Registrable
Securities to contribute pursuant to this Section 7.4 shall be several in
proportion to the respective amount of Registrable Securities sold by them
pursuant to a registration statement.
ARTICLE 8
INFORMATION BY INVESTOR
The Investor holding Registrable Securities included in any registration shall
furnish in writing to the Company such information regarding the Investor and
the distribution proposed by the Investor as the Company may reasonably request
in writing and
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as shall be reasonably required in connection with any registration or
qualification referred to in this Agreement.
ARTICLE 9
RULE 144 REPORTING
With a view to making available the benefits of certain rules and regulations
of the Commission which may at any time permit the sale of securities of the
Company to the public without registration, at such time as a public market
exists for the Common Stock of the Company, the Company agrees to:
9.1 Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times; and
9.2 Use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), at any
time that it is subject to such reporting requirements; and
9.3 So long as the Investor owns any Registrable Securities, furnish to
the Investor forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company as the Investor may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Investor to sell any such securities
without registration.
ARTICLE 10
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register securities granted to the Investor
under Articles 2, 3 and 4 hereof may be assigned in connection with any
permitted transfer or assignment of the Investor's Registrable Securities. All
transferees and assignees of the rights to cause the Company to register
securities granted to the Investor under Articles 2, 3 and 4 hereof, as a
condition to the transfer of such rights, shall agree in writing to be bound by
the agreements set forth herein.
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ARTICLE 11
LIMITATIONS ON REGISTRATION RIGHTS
GRANTED TO OTHER SECURITIES
11.1 Existing Registration Rights. The Company covenants, warrants and
represents that:
(a) The registration rights of the Company's Class B Preferred Stock
("Class B"), Class C Preferred Stock ("Class C") and Series D Preferred Stock
("Series D") are subordinated in all respects to the rights of holders of the
Series M Preferred in any offering made under Articles 2, 3 or 4 herein.
(b) If holders of Class B, Class C and/or Series D shares request
registration under circumstances similar to those in Articles 2, 3 or 4 hereof
(a "Requested Registration"), the Company shall:
(i) promptly give to the Investor written notice thereof;
(ii) include in any Requested Registration (and any
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 15 days after receipt of such written notice from the
Company described in Section 11.1(b)(i) by the Investor;
(iii) pay any Registration Expenses related to the Registrable
Securities included in the Requested Registration; and
(iv) upon expiration of the 15-day period prescribed in
Section 11.1(b)(ii), promptly give each holder of Class B, Class C and/or Series
D written notice of the number of Registrable Securities to be included in the
Requested Registration and that if the underwriters exclude some of the
securities to be registered, the securities to be sold for any Class B, Class C
or Series D holder shall be excluded in their entirety prior to the exclusion of
any Registrable Securities.
11.2 Additional Registration Rights. The parties hereto agree that
additional holders of capital stock of the Company providing new financing to
the Company may, in connection with the Company's obtaining such new financing,
be granted registration rights subordinate to those granted herein, with respect
to any or all securities of the Company held by them; provided, however, that
from and after the date of this Agreement, the Company shall not without the
prior written consent of the Investor, enter into any agreement with any holder
or prospective holder of any securities of the Company providing for the grant
to such holder of registration rights superior to those granted herein.
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ARTICLE 12
MISCELLANEOUS
12.1 Aggregation. Shares of capital stock of the Company owned by
partnerships and corporations having substantially common ownership interests or
managed by the same principals and owned by individual investors affiliated with
one another may be aggregated for the purposes of calculating the aggregate
percentage of capital stock of the Company owned by the Investor and any
permitted transferee hereunder.
12.2 Waivers and Amendments. With the written consent of the Company and
the Investor, the obligations and rights of the Company and the Investor under
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely) or amended. This Agreement or any provision hereof may be
amended, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the amendment, waiver, discharge or
termination is sought, except to the extent provided in this Section 12.2.
12.3 Damages. The Company recognizes and agrees that the Investor will not
have an adequate remedy if the Company fails to comply with the provisions of
this Registration Rights Agreement regarding registration and that damages will
not be readily ascertainable, and the Company expressly agrees that, in the
event of such failure, the Company shall not oppose an application by the
Investor, or any other person entitled to the benefits of these provisions,
requiring specific performance of any provisions hereof or enjoining the Company
from continuing to commit any such breach of such provisions.
12.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within the state without regard to principles of
conflicts of law.
12.5 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
12.6 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
12.7 Notices. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
upon delivery in person, or one business day after delivery by national
overnight courier service
- 16 -
or by telecopier transmission with acknowledgment of transmission receipt, or
three business days after deposit via certified or registered mail, return
receipt requested, in each case addressed as follows:
if to the Company:
I-Link Incorporated
00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, President
Telecopier: 000-000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
00 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telecopier: (000) 000-0000
if to the Investor, at the address shown in the records of the Company.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
12.8 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
12.9 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
12.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
I-LINK INCORPORATED
By:
------------------------------
Xxxx X. Xxxxxxx, President
WINTER HARBOR, L.L.C.
By: First Media, L.P., its General Manager/Member
By: First Media Corporation, sole General Partner
By:
Name:
-----------------------------
Title:
----------------------------
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