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Exhibit 1.2
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of March ___, 2001 (this
"Agreement"), by and among WINTER HARBOR, LLC, a Delaware limited liability
company (the "Holder" or "Winter Harbor") and COUNSEL COMMUNICATIONS LLC (the
"Purchaser" or "Counsel").
WITNESSETH:
WHEREAS, Holder proposes to sell to Purchaser, and Purchaser proposes
to purchase from Holder all of the securities and other convertible instruments
as reflected on Exhibit A (the "Owned Securities"), which constitute all of the
debt and equity interests in I-Link, Incorporated (the "Company") beneficially
owned by Holder, other than the 5,000,000 shares of common stock issued by the
Company to Holder pursuant to the Warrant Exchange Agreement between Holder and
the Company dated of the date hereof (the "Warrant Exchange Agreement"); and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE I. AUTHORIZATION AND SALE OF THE OWNED SECURITIES
1.1 Sale and Purchase of Owned Securities. Upon the terms and
subject to the conditions contained herein at the Closing (as hereinafter
defined), the Holder shall sell, assign, transfer, convey and deliver to the
Purchaser, and the Purchaser shall be obligated to purchase from the Holder on
the terms described herein, the Owned Securities.
ARTICLE II. PURCHASE PRICE AND CLOSING
2.1 Purchase Price. The aggregate purchase price for the Owned
Securities to be purchased at the Closing shall be US$5,000,000 (the "Purchase
Price").
2.2 Closing Date. The closing of the purchase and sale of the
Owned Securities provided for in Section 1.1 hereof (the "Closing") shall take
place at 3:30 p.m. at the offices of the Company on the date hereof.
ARTICLE III. REPRESENTATIONS OF HOLDER
Holder represents and warrants to Counsel, subject to the provisions of
Section 3.9, as follows:
3.1 Organization and Authority. Holder is a limited liability
company duly organized, validly existing, and in good standing under the laws of
the State of Delaware.
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3.2 Authorization and Binding Obligation. Holder has full power
and authority to execute and deliver this Agreement and the assignment documents
described in Section 5.1 (this Agreement, together with such other assignment
documents being hereinafter referred to, collectively, as the "Holder
Documents"), and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance by the Holder of this Agreement and each
other Holder Document have been duly authorized by all necessary action on
behalf of the Holder. This Agreement has been, and each other Holder Documents
will be at or prior to the Closing, duly executed and delivered by the Holder
and (assuming the due authorization, execution and delivery by the other parties
hereto and thereto) this Agreement constitutes, and each Holder Document when so
executed and delivered will constitute, legal, valid and binding obligations of
the Holder, enforceable against the Holder in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
3.3 Ownership of Stock. Holder owns of record and beneficially the
Owned Securities listed as owned by it on Exhibit A, free and clear of any lien,
pledge, or other security interest or encumbrance (other than any restrictions
under securities laws and restrictions under this Agreement, the I-Link
Shareholders Agreement and other than those arising out of the Red Cube AG
Claims (as hereinafter defined)). Holder is not a party to any option, warrant,
purchase right, or other contract or commitment that requires Holder to sell,
transfer, or otherwise dispose of any Owned Securities (other than this
Agreement, the I-Link Shareholders Agreement and those arising out of the Red
Cube AG Claims (as hereinafter defined)), and, following Closing, Counsel will
have no restrictions on its ability to vote or otherwise exercise all rights to
title to the Owned Securities being acquired.
3.4 Voting Authority. Holder is not a party to any voting
agreement with respect to any of the Owned Securities other than the I-Link
Shareholders Agreement or arising out of the Red Cube AG Securities Purchase
Agreement and has not granted a revocable or an irrevocable proxy to any Person
with respect to any of the Owned Securities other than the proxy granted to Red
Cube, which proxy has been expired or terminated.
3.5 Absence of Conflicting Agreements; Consents. To the knowledge
of Holder the execution, delivery, and performance by Holder of this Agreement
and the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (a) do not require the consent of any third party; (b)
will not conflict with any provision of the limited liability company agreement
or certificate of formation of Holder, each as currently in effect; (c) will not
conflict with, result in a breach of, or constitute a default under any Legal
Requirement; and (d) will not conflict with, constitute grounds for termination
of, result in a breach of, constitute a default under, or accelerate or permit
the acceleration of any performance required by the terms of any agreement,
instrument, license, or permit to which Holder is a party or by which Holder may
be bound.
3.6 Disclosure. No representation or warranty of Holder contained
in this Agreement contains any untrue statement of a material fact, or omits to
state any material fact which is required to be stated therein to make the
statements contained herein, in the light of the circumstances in which they
were made, not misleading.
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3.7 No Related Party Transactions. Except as set forth on Schedule
3.7, Holder does not have any interest in any property used in I-Link's
business, has no equity or other financial interest in any person that has
business dealings with I-Link or a material financial interest in any
transaction to which I-Link is a party, other than in the ordinary course of
business and at market prices and on market terms, is not engaged in competition
with I-Link, is not party to any contract with I-Link, and does not have any
claim or right against I-Link
3.8 Litigation. Other than any Legal Proceeding with Red Cube
International AG ("Red Cube AG"), there are no Legal Proceedings pending or, to
the knowledge of the Purchaser, threatened that are reasonably likely to
prohibit or restrain the ability of the Purchaser to enter into this Agreement
or consummate the transactions contemplated hereby.
3.9 Exclusion. Counsel has been appraised of that certain
Securities Purchase Agreement by and among Winter Harbor, KPR Finanz-Und
Verwlatungs AG ("KPR") and Red Cube AG, dated August 30, 2000 (as amended, the
"Red Cube AG Securities Purchase Agreement"), Winter Harbor's termination
thereof and Red Cube AG and KPR's allegation regarding their purported rights to
the Covered Securities pursuant thereto. No representation, warranty or
statement, express or implied, made by or on behalf of Winter Harbor shall be
deemed to be false or misleading or shall form the basis of any claim against
Winter Harbor, its directors, officers, agents or shareholders, except for
indemnity claims pursuant to Section 6.3 hereof, as a result of any claim of any
kind or nature made by or on behalf of Red Cube AG, KPR or their respective
Affiliates, officers, directors, agents, employees, creditors or shareholders (a
"Red Cube AG Claim").
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to Holder that:
4.1 Authorization of Agreement. Purchaser has full power and
authority to execute and deliver this Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed by Purchaser in connection with the consummation of the transactions
contemplated hereby and thereby (this Agreement, together with such other
agreements, documents, instruments and certificates being hereinafter referred
to, collectively, as the "Purchaser Documents"), and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by the Purchaser of this Agreement and each other Purchaser Document
have been duly authorized by all necessary action on behalf of the Purchaser.
This Agreement has been, and each other Purchaser Documents will be at or prior
to the Closing, duly executed and delivered by the Purchaser and (assuming the
due authorization, execution and delivery by the other parties hereto and
thereto) this Agreement constitutes, and each Purchaser Document when so
executed and delivered will constitute, legal, valid and binding obligations of
the Purchaser, enforceable against the Purchasers in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
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4.2 Litigation. There are no Legal Proceedings pending or, to the
knowledge of the Purchaser, threatened that are reasonably likely to prohibit or
restrain the ability of the Purchaser to enter into this Agreement or consummate
the transactions contemplated hereby.
4.3 Red Cube Litigation. Nothing in this Agreement shall be
construed to assign, affect, or release any claim, right of recovery or amounts
due to Winter Harbor from Red Cube AG, KPR or any of their respective parent
entities, subsidiaries, Affiliates, officers, directors, shareholders, agents or
employees or any person or entity acting in concert therewith (the "Red Cube AG
Defendants"). Counsel shall, at Winter Harbor's sole expense, render all
reasonable assistance in the prosecution of any claims by Winter Harbor against
Red Cube AG, KPR or the Red Cube AG Defendants.
4.4 Absence of Conflicting Agreements; Consents. To the knowledge
of Purchaser the execution, delivery, and performance by Purchaser of this
Agreement and the documents contemplated hereby (with or without the giving of
notice, the lapse of time, or both): (a) do not require the consent of any third
party; (b) will not conflict with any provision of the limited liability company
agreement or certificate of formation of Purchaser, each as currently in effect;
(c) will not conflict with, result in a breach of, or constitute a default under
any Legal Requirement; and (d) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of any
agreement, instrument, license, or permit to which Purchaser is a party or by
which Purchaser may be bound.
4.5 Disclosure. No representation or warranty of Purchaser
contained in this Agreement contains any untrue statement of a material fact, or
omits to state any material fact which is required to be stated therein to make
the statements contained therein, in the light of the circumstances in which
they were made, not misleading.
ARTICLE V. DOCUMENTS TO BE DELIVERED
5.1 Deliveries by the Holder to the Purchaser at the Closing. The
Holder shall deliver, or shall cause to be delivered, to the Purchaser
certificates representing the Owned Securities (to the extent such Securities
are certificated), together with duly executed assignments separate from
certificate in form and substance sufficient to effectuate the transfer of the
Owned Securities to the Purchaser, free and clear of any lien, pledge, or other
security interest or encumbrance (other than any restrictions under securities
laws and restrictions under this Agreement and the I-Link Shareholders Agreement
and other than Red Cube A.G. Claims).
5.2 Deliveries by the Purchaser at the Closing. The Purchaser
shall pay at the Closing to the Holder the Purchase Price by wire transfer of
immediately available funds.
ARTICLE VI. INDEMNIFICATION
6.1 Indemnification.
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Subject to Section 6.3, the Holder hereby agrees to indemnify
and hold the Purchaser and its respective directors, officers, employees,
agents, successors, assigns and their affiliates (collectively, the "Purchaser
Indemnified Parties") harmless from and against any and all losses, liabilities,
obligations, damages, claims, judgments, assessments, penalties, costs and
expenses, including reasonable attorneys' and other professionals' fees and
disbursements paid by either the indemnified or indemnifying party
(collectively, "Losses") based upon, attributable to or resulting from the
breach of any representation, warranty or covenant of the Holder set forth
herein.
(a) The Purchaser hereby agrees to indemnify and hold the
Holder and its directors, officers, employees, agents and successors
(collectively, the "Holder Indemnified Parties") harmless from and against any
and all Losses based upon, attributable to or resulting from the breach of any
representation, warranty or covenant of the Purchaser set forth herein.
6.2 Indemnification Procedures.
In the event that any third-party legal proceedings shall be
instituted or any third-party claim or demand ("Claim") shall be asserted by any
Person in respect of which payment may be sought under Section 6.1 or Section
6.3 hereof, the indemnified party shall promptly cause written notice of the
assertion of any Claim of which it has knowledge which is covered by this
indemnity to be forwarded to the indemnifying party. The indemnifying party
shall have the right, in its sole discretion, to be represented by counsel of
its choice, and to thereby assume the defense of, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder.
If the indemnifying party elects to assume the defense of, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, it shall within five (5) days of receipt of written notice of the
assertion of a Claim (or sooner, if the nature of the Claim so requires) notify
the indemnified party of its intent to do so. If the indemnifying party elects
not to defend against, negotiate, settle or otherwise deal with any Claim which
relates to any Losses indemnified against hereunder, fails to notify the
indemnified party of its election as herein provided or contests its obligation
to indemnify the indemnified party for such Losses under this Agreement, the
indemnified party may defend against, negotiate, settle or otherwise deal with
such Claim. If the indemnifying party shall assume the defense of any Claim, the
indemnified party may participate, at his or its own expense, in the defense of
such Claim; provided, however, that such indemnified party shall be entitled to
participate in any such defense with separate counsel if, (i) so requested by
the indemnifying party to participate or (ii) in the reasonable opinion of
counsel to the indemnified party, a conflict or potential conflict exists
between the indemnified party and the indemnifying party that would make such
separate representation advisable. The parties hereto agree to cooperate fully
with each other in connection with the defense, negotiation or settlement of any
such Claim.
After any final judgment or award shall have been rendered by
a court, arbitration board or administrative agency of competent jurisdiction
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated, or the indemnified party and the indemnifying party
shall have arrived at a mutually binding agreement with respect to a Claim
hereunder, the indemnified party shall forward to the indemnifying party and the
escrow agent under the escrow agreement of even date herewith between the
Holder, the Purchaser and such escrow agent notice of any Losses pursuant to
this Agreement with respect to such matter.
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Except with respect to the determination of an Escrow
Termination Event (as hereinafter defined), the failure of the indemnified party
to give reasonably prompt notice of any Claim shall not release, waive or
otherwise affect the indemnifying party's obligations with respect thereto
except to the extent that the indemnifying party can demonstrate actual loss and
prejudice as a result of such failure.
6.3 Escrow.
(a) Upon receipt thereof, Winter Harbor shall deposit in
an interest bearing escrow (the "Escrow") the
Purchase Price and those securities issued to Winter
Harbor pursuant to the Securities Exchange Agreement
(such securities and any additional or other shares
or securities or property into which such securities
are converted or for which such securities are
exchanged including through any reorganization,
recapitalization, reclassification, stock dividend,
stock split or reverse stock split, or other
transaction being the "Issued Securities"). The
Escrow shall terminate, and the remaining contents
thereof transferred to Winter Harbor, free and clear
of any claim, liens, encumbrances by Purchaser or any
Purchaser Indemnified Party, upon the first
occurrence of an Escrow Termination Event. An Escrow
Termination Event shall have occurred upon the
earlier of (i) the end of the 540th day after the
date of this Agreement, if during such period no Red
Cube AG Claim premised upon the Red Cube AG
Securities Purchase Agreement has been initiated
(other than a claim in connection with the mediation
currently pending before the American Arbitration
Association), and (ii) the final resolution or
settlement of all claims brought against Winter
Harbor or Purchaser before the 540th day after the
date of this Agreement that could result in
potentially indemnifiable losses related to any Red
Cube AG Claim.
(b) Winter Harbor and Purchaser acknowledge that as a
result of the transaction contemplated by this
Agreement, there is a risk that Purchaser or a
Purchaser Indemnified Party may be exposed to (i)
Losses resulting from a determination and order by a
court of competent jurisdiction, arbitral panel or
other adjudicatory entity that, pursuant to the Red
Cube AG Securities Purchase Agreement, Red Cube AG is
entitled to the transfer of ownership from Purchaser
of all or substantially all the Covered Securities (a
"Specific Performance Claim") or (ii) Losses premised
upon the Red Cube AG Securities Purchase Agreement
and which arise from a Red Cube AG Claim which is not
a Specific Performance Claim (a "Red Cube Damage
Claim"). If, prior to the occurrence of an Escrow
Termination Event, Purchaser or a Purchaser
Indemnified Person gives notice of a Specific
Performance Claim or a claim under Section 6.1(a)
above, then Winter Harbor shall, solely out of and up
to a maximum of the Issued Securities and Purchase
Price deposited in the Escrow, indemnify and hold
harmless Purchaser and Purchaser Indemnified Person
from all Losses arising out of such Specific
Performance Claim or claim under Section 6.1(a)
above. If, prior to the occurrence of an Escrow
Termination Event, Purchaser or a Purchaser
Indemnified Person gives notice of a Red Cube Damage
Claim, then Winter Harbor shall, solely out of and up
to a maximum of the Issued Securities
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deposited in the Escrow, indemnify and hold harmless
Purchaser and Purchaser Indemnified Person from all
Losses arising out of such Red Cube Damage Claim.
Winter Harbor's total aggregate liability for all
Specific Performance Claims and all claims under
Section 6.1(a) above shall not exceed the loss of its
right to the Issued Securities and Purchase Price
deposited in the Escrow. Winter Harbor's total
aggregate liability for all Red Cube Damage Claims
shall not exceed the loss of its right to the Issued
Securities deposited in the Escrow.
(c) All Losses properly due a Purchaser or Purchaser
Indemnified Person pursuant to this Section 6.3,
Section 6.1 and Section 6.2 (including, without
limitation, reimbursement of attorneys' or other
professional fees arising out of article VI of this
Agreement) shall first be satisfied by transferring
to Purchaser or the applicable Purchaser Indemnified
Party a number of Issued Securities determined by
dividing the applicable Loss by the then current
market price (as calculated by the average closing
price for I-Link common stock for the most recent ten
(10) days upon which such securities traded) of such
shares. In the event that the total number of Issued
Securities then deposited in the Escrow is
insufficient to satisfy the applicable Losses, and
solely where such Losses arise exclusively and solely
from a Red Cube Specific Performance Claim or from a
claim under Section 6.1(a), any shortfall shall be
satisfied by transferring to the Purchaser or
applicable Purchaser Indemnified Person, a portion,
up to a maximum of the total Purchase Price, of the
cash proceeds then deposited in the Escrow.
6.4 Tax Treatment of Indemnity Payments. The parties agree to
treat any indemnity payment made pursuant to this Article VI as an adjustment to
the Purchase Price for federal, state, local and foreign income tax purposes.
6.5 Settlement of Specific Performance Claims. Holder hereby
agrees it shall not enter into any agreement to settle any Specific Performance
Claim that would attempt to transfer to any other party any right, title to or
interest in or to the Owned Securities from Purchaser.
ARTICLE VII. MISCELLANEOUS
7.1 Certain Definitions.
For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 7.1:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person.
"Legal Requirement" means applicable common law and any applicable law, statute,
regulation, rule, ordinance, order, administrative order, treaty, standard,
decree or judgment enacted, adopted, or promulgated by any governmental
authority and having the full force and effect of law.
"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award.
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"Person" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
Governmental Body or other entity.
7.2 Survival of Representations and Warranties; Covenants.
(a) Representations and Warranties. The parties hereto
hereby agree that the representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement, and the Closing
hereunder, regardless of any investigation made by the parties hereto, through
the period until the applicable statute of limitations is reached.
(b) Covenants. All covenants and agreements of the
parties herein shall survive the consummation of the transactions contemplated
hereby.
7.3 Specific Performance. Holder acknowledges and agrees that the
breach of this Agreement would cause irreparable damage to the Purchaser and
that the Purchaser will not have an adequate remedy at law. Therefore, the
obligations of the Holder under this Agreement, including, without limitation,
the Holder's obligation to sell the Owned Securities to the Purchaser, shall be
enforceable by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted
in connection therewith. Such remedies shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
7.4 Other Assurances. The Holder and the Purchaser each agree to
execute and deliver such other documents or agreements and to take such other
action as may be necessary for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
7.5 Submission to Jurisdiction; Consent to Service of Process.
The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located within the
State of New York over any dispute arising out of or relating to this Agreement
or any of the transactions contemplated hereby and each party hereby irrevocably
agrees that all claims in respect of such dispute or any suit, action proceeding
related thereto may be heard and determined in such courts. THE PARTIES HEREBY
IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY A JURY. The parties hereby irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of venue of any such dispute
brought in such court or any defense of inconvenient forum for the maintenance
of such dispute. Each of the parties hereto agrees that a judgment in any such
dispute may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
Each of the parties hereto hereby consents to process being
served by any party to this Agreement in any suit, action or proceeding by the
mailing of a copy thereof in accordance with the provisions of Section 7.8
hereof.
7.6 Entire Agreement; Amendments and Waivers. This Agreement
(including the schedules and exhibits hereto) represents the entire
understanding and agreement between the parties
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hereto with respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be waived, only by written
instrument making specific reference to this Agreement signed by the Purchaser
and the Holder.
7.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
7.8 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally or mailed by certified mail, return receipt requested, to the parties
(and shall also be transmitted by facsimile to the Persons receiving copies
thereof) at the following addresses (or to such other address as a party may
have specified by notice given to the other party pursuant to this provision):
If to the Holder:
Winter Harbor, LLC
00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Xx.
With a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Wild
Facsimile: (000) 000-0000
If to a Purchaser, to:
Counsel Corporation (US)
000 Xxxx Xxxxxx
Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, PC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attention: Xxxx Manner
Facsimile: (000) 000-0000
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7.9 Consequential or Special Damages. No party hereto shall be
entitled to any consequential or special damages. All liabilities related to or
arising under this Agreement, including all obligations of indemnity hereunder,
shall be limited to the maximum amount set forth in Section 6.3(b) herein.
7.10 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
7.11 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity not a party to this
Agreement. No assignment of this Agreement or of any rights or obligations
hereunder may be made by the Purchaser (by operation of law or otherwise)
without the prior written consent of the other parties hereto and any attempted
assignment without the required consents shall be void; provided, however, that
Purchaser may assign its rights and obligations under this Agreement (including,
without limitation, such Purchaser's rights to purchase the Owned Securities and
to seek indemnification hereunder) to any affiliate of Purchaser and may
transfer its rights and obligations under this Agreement, upon obtaining consent
of Holder (which shall not be unreasonably withheld) to any key employee(s) or
personnel of Purchaser. Upon any such permitted assignment, the references in
this Agreement to the Purchasers shall also apply to any such assignee unless
the context otherwise requires.
7.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
THE HOLDER
WINTER HARBOR, LLC
By: First Media, L.P., its member
By: First Media Corporation, its general partner
By:
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Name:
Title:
THE PURCHASER
COUNSEL COMMUNICATIONS LLC
By:
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Name:
Title:
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Exhibit A
1. 4,400 shares of Series M Preferred Stock and all accrued dividends
thereon"
2. 14,400 shares of Series N Preferred Stock
3. Promissory Notes, in the aggregate principal amount of $7,768,000,
dated January 26, 1998, February 23, 1998, March 3, 1998, March 24,
1998, May 13, 1998, May 29, 1998 which were converted into 4,122 shares
of Series M Preferred Stock
* Holder makes no representations hereunder as to the number of shares issued as
accrued dividends on the Series M Preferred Stock.
