EXHIBIT 10.3
NEITHER THE WARRANTS REPRESENTED BY THIS WARRANT AGREEMENT NOR THE SHARES OF
COMMON STOCK THAT MAY BE PURCHASED UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY
APPLICABLE STATE LAW. SUCH WARRANTS AND SHARES MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE LAW, (2) TO THE EXTENT APPLICABLE,
RULE 144 UNDER SUCH ACT (OR SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (3) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL
BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
SUCH REGISTRATION UNDER SUCH ACT IS AVAILABLE.
WARRANT AGREEMENT
by and between
COUNSEL CORPORATION (US)
and
I-LINK INCORPORATED
Dated as of June 4, 2001
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "AGREEMENT"), dated as of June 4, 2001, by
and between I-LINK INCCORPORATED, a Florida corporation (the "COMPANY"), and
COUNSEL CORPORATION (US), a Delaware corporation (the "HOLDER").
R E C I T A L S:
A. The Holder and the Company have entered into a Loan and Security
Agreement dated as of the date hereof (the "LOAN AGREEMENT");
B. In connection with the Loan Agreement, the Company has agreed to issue
three series of warrants which, in aggregate, are exercisable to purchase up to
fifteen million ($15,000,000) shares of the common stock of the Company ("COMMON
STOCK"), subject to adjustment and cancellation as set forth in this Agreement;
and
C. The Company wishes to define the terms and provisions of the
Warrants and the respective rights and obligations thereunder of the Company
and the holder of the Warrants.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements herein 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
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the meanings specified below:
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than Saturday, Sunday or any
other day on which banking institutions in Salt Lake City, Utah are permitted or
required to close.
"EVENT OF DEFAULT" is defined in Section 9.1 of the Loan Agreement.
"EXERCISE PRICE" is defined in Section 5.3 hereof.
"EXPIRATION DATE" is defined in Section 5.4 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of the determination.
"NOTE" is defined in Section 1.2 of the Loan Agreement.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"TRANCHE 1 WARRANTS" means, collectively, any and all Warrants issued to
the Holder pursuant to Section 2.1(a) and evidenced by a Tranche 1 Warrant
Certificate.
"TRANCHE 2 WARRANTS" means, collectively, any and all Warrants issued to
the Holder pursuant to Section 2.1(b) and evidenced by a Tranche 2 Warrant
Certificate.
"TRANCHE 3 WARRANTS" means, collectively, any and all Warrants issued to
the Holder pursuant to Section 2.1(c) and evidenced by a Tranche 3 Warrant
Certificate.
"TRANCHE 1 WARRANT CERTIFICATE" means a certificate for the Tranche 1
Warrants in substantially the form attached hereto as Exhibit A.
"TRANCHE 2 WARRANT CERTIFICATE" means a certificate for the Tranche 2
Warrants in substantially the form attached hereto as Exhibit A.
"TRANCHE 3 WARRANT CERTIFICATE" means a certificate for the Tranche 3
Warrants in substantially the form attached hereto as Exhibit A.
"TRANCHE 1 EXERCISE PERIOD" is defined in Section 5.4(a) hereof.
"TRANCHE 2 EXERCISE PERIOD" is defined in Section 5.4(b) hereof.
"TRANCHE 3 EXERCISE PERIOD" is defined in Section 5.4(c) hereof.
"WARRANT CERTIFICATES" means, collectively, the Tranche 1 Warrant
Certificates, the Tranche 2 Warrant Certificates, and the Tranche 3 Warrant
Certificates.
"WARRANTHOLDER" means initially the Holder and thereafter each Person to
whom Holder or other Warrant Holder may transfer any Warrants.
"WARRANTS" means, collectively, the Tranche 1 Warrants, the Tranche
2 Warrants and the Tranche 3 Warrants.
Capitalized terms used but not defined herein shall have the meaning
set forth in the Loan Agreement.
ARTICLE II
ISSUANCE, FORM AND EXECUTION OF WARRANT CERTIFICATES
SECTION 2.1 ISSUANCE OF WARRANTS. Upon the Closing and full
funding of the Note, the Company shall issue to the Holder:
(a) warrants to purchase five million (5,000,000) shares of Common Stock
of the Company at an Exercise Price (defined herein) of $0.60 per
share, subject to adjustment as provided elsewhere herein (the "TRANCHE
1 WARRANTS"); and
(b) warrants to purchase five million (5,000,000) shares of Common Stock
of the Company at an Exercise Price (defined herein) of $0.60 per
share, subject to adjustment and cancellation as provided elsewhere
herein (the "TRANCHE 2 WARRANTS"); and
(c) warrants to purchase five million (5,000,000) shares of Common Stock
of the Company at an Exercise Price (defined herein) of $0.60 per
share, subject to adjustment and cancellation as provided elsewhere
herein (the "TRANCHE 3 WARRANTS").
The Warrants shall be evidenced by Warrant Certificates and each
Warrant Certificate shall represent the right, subject to the provisions
contained herein, to purchase from the Company (and the Company shall issue and
sell to the registered holder of such Warrants) the number of shares of Common
Stock (as may be adjusted pursuant to Article 7 hereof) issuable to the
Warrantholder upon exercise of such Warrants, at the price specified herein.
SECTION 2.2 FORM OF WARRANT CERTIFICATES. The Warrant Certificates
evidencing the Warrants shall be in registered form only and shall be
substantially in the form set forth in EXHIBIT A attached hereto, shall be dated
the date on which signed by the Company and may have such letters, numbers or
other marks of identification or designation printed, lithographed, engraved or
otherwise affixed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto.
SECTION 2.3 EXECUTION OF WARRANT CERTIFICATES. Warrant Certificates
shall be executed on behalf of the Company by the president, any vice president
or the treasurer of the Company and signed by the secretary or any assistant
secretary of the Company and have affixed thereon the seal of the Company. Each
such signature and seal may be manual or facsimile.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before countersignature and
delivery by the Company, such Warrant Certificates, nevertheless, may be
countersigned, issued and delivered with the same force and effect as though
such person had not ceased to be such officer; and any Warrant Certificate may
be signed on behalf of the Company by any person who, at the actual date of the
execution of such Warrant Certificate, shall be a proper officer of the Company
to sign such Warrant Certificate, although at the date of the execution of this
Agreement such person was not such an officer of the Company. Upon
countersignature on behalf of the Company and delivery, the Warrant Certificate
shall be valid and binding upon the Company, and the Warrantholder thereof shall
be entitled to all of the benefits of this Agreement.
ARTICLE III
REGISTRATION
SECTION 3.1 REGISTRATION. THE COMPANY SHALL NUMBER AND REGISTER THE
WARRANT CERTIFICATES IN A REGISTER (THE "WARRANT REGISTER") MAINTAINED AT 00000
XXXXX XXXXXXXXX XXXX XXXXX, XXXXXX, XXXX 00000 (THE "OFFICE") AS THEY ARE ISSUED
BY THE COMPANY (OR SUCH OTHER LOCATION AS THE COMPANY MAY ESTABLISH AFTER GIVING
NOTICE THEREOF TO THE WARRANTHOLDERS). THE COMPANY SHALL KEEP COPIES OF THIS
AGREEMENT AVAILABLE FOR INSPECTION BY THE WARRANTHOLDERS DURING NORMAL BUSINESS
HOURS AT THE OFFICE.
ARTICLE IV
TRANSFER, EXCHANGE OR REPLACEMENT OF WARRANT CERTIFICATES
SECTION 4.1 WARRANT TRANSFER. The Warrants granted hereunder shall
not be pledged, assigned or otherwise transferred without the prior written
consent of the Company, which will not be unreasonably withheld. Upon exercise,
in whole or in part, of such pledged, assigned of transferred Warrants,
certificates representing the Warrant Securities (defined below) shall bear a
legend substantially similar to the legend set forth in Section 4.3
SECTION 4.2 REGISTRATION OF TRANSFERS. Subject to the provisions of
this Agreement, the Company shall from time to time register the transfer of any
outstanding Warrant Certificate on the Warrant Register maintained at the
Office, upon surrender thereof accompanied by a written instrument or
instruments of transfer in form reasonably satisfactory to the Company, duly
endorsed by the registered holder thereof or by such Warrantholder's appointed
legal representative or attorney-in-fact, or accompanied by proper evidence of
succession, assignment or authority to transfer. Each such written instrument or
instruments of transfer or proper evidence of succession, assignment or
authority to transfer shall be accompanied by an unqualified written opinion
of legal counsel who shall be, and whose legal opinion shall be reasonably
satisfactory to the Company and addressed to the Company, to the effect that the
proposed transfer of the Warrants may be effected without registration under the
Securities Act and any applicable state law. In all cases of transfer by an
attorney, the original power of attorney, duly approved, or an official copy
thereof, duly certified, shall be deposited and remain with the Company. Upon
any such registration or transfer in such name or names as may be directed in
writing by the Warrantholder, the Company shall execute and deliver (or cause to
be delivered) a new Warrant Certificate(s) without charge to such Warrantholder,
or to the Person or Persons entitled to receive the same, and the surrendered
Warrant Certificate shall be canceled by the Company.
SECTION 4.3 REGISTRATION UNDER THE SECURITIES ACT OF 1933. The
Warrants, the Warrant Shares and any of the other securities issuable upon
exercise of the Warrants have not been registered under the Securities Act. Upon
exercise, in part or in whole, of the Warrants, certificates representing the
Common Stock and any of the other securities issuable upon exercise of the
Warrants (collectively, the "WARRANT SECURITIES") shall bear the following
legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended ("Act"), and
may not be offered or sold except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent applicable,
Rule 144 under the Act (or any similar rule under such Act relating
to the disposition of securities), or (iii) an opinion of counsel,
if such opinion shall be reasonably satisfactory to counsel to the
issuer, that an exemption from registration under such Act is
available.
SECTION 4.4 EXCHANGES OF WARRANT CERTIFICATES. Each Warrant
Certificate may be exchanged at the option of the Warrantholder without charge
to such Warrantholder when surrendered to the Company at the Office properly
endorsed in the manner described in Section 4.2 hereof for another Warrant
Certificate(s) of like tenor and representing in the aggregate a like number of
shares of Common Stock, as may be adjusted pursuant to Article 7 hereof.
Thereupon, the Company shall execute and deliver to the Person(s) entitled
thereto a new Warrant Certificate(s) as so requested. Warrant Certificates
surrendered for exchange shall be canceled by the Company.
SECTION 4.5 MUTILATED OR MISSING WARRANT CERTIFICATES. In the event
that any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company shall execute and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing Warrants for a like amount of
Common Stock, but only, in case of a lost, stolen or destroyed Warrant
Certificate, upon receipt of (i) evidence satisfactory to the Company of such
loss, theft or destruction and the absence of actual notice to the Company that
such Warrant Certificate has been acquired by a bona fide purchaser or holder in
due course, and (ii) an indemnity bond in form and substance and with surety
satisfactory to the Company. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 4.5 in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section 4.5 are exclusive with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
ARTICLE V
EXERCISE OF WARRANTS; EXERCISE PRICE; EXERCISE PERIOD
SECTION 5.1 EXERCISE OF WARRANTS. Subject to the provisions of this
Agreement, each Warrantholder shall have the right to purchase from the Company
the number of shares of Common Stock that the Warrantholder may at the time be
entitled to purchase on exercise of the Warrants and payment of the Exercise
Price (as defined below) for such Common Stock.
SECTION 5.2 MECHANICS OF EXERCISE.
(a) Subject to the provisions of this Agreement, Warrants may be
exercised by the Warrantholder in whole or in part upon surrender at the Office
to the Company of the Warrant Certificate(s) evidencing the Warrants, together
with the form of election to purchase (the "ELECTION TO PURCHASE"), in the form
set forth as EXHIBIT B hereto, duly completed and signed by such Warrantholder
or by such Warrantholder's appointed legal representative or attorney-in-fact
and upon payment in full of the Exercise Price for each Warrant exercised.
Payment of the aggregate Exercise Price shall be made by immediately available
funds.
(b) Upon due exercise of the Warrants and surrender of the Warrant
Certificate, duly completed and signed, and payment of the Exercise Price as
aforesaid, the Company shall cause to be issued to or upon the written order of
the Warrantholder and in such name or names as the Warrantholder may designate
in the Election to Purchase, the Common Stock so purchased. If all of the items
referred to in the first sentence of the preceding paragraph are received by the
Company at or prior to 1:00 p.m., Salt Lake City time, on a Business Day, the
exercise of the Warrants to which such items relate will be effective on such
Business Day. If all of such items are received after 1:00 p.m., Salt Lake City
time, on a Business Day, the exercise of the Warrants to which such items relate
will be effective on the next Business Day.
(c) The number and kind of Common Stock for which Warrants may be
exercised shall be subject to adjustment from time to time as set forth in
Article 7 hereof.
(d) The Warrants shall be exercisable as provided herein at the
election of the Warrantholder in whole or in part. In the event that the holder
of a Warrant Certificate shall exercise Warrants with respect to fewer than all
the Common Stock evidenced thereby, a new Warrant Certificate(s) evidencing the
remaining unexercised Warrants shall be issued to such Warrantholder, and the
Company is hereby irrevocably authorized to execute and deliver the required new
Warrant Certificate(s) pursuant to provisions of Article 2 and Article 3 of this
Agreement.
(e) All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled and disposed of by the Company.
SECTION 5.3 EXERCISE PRICE. The price at which the Warrants shall be
exercisable in exchange for Common Stock shall initially be $0.60 per share (the
"EXERCISE PRICE"), subject to adjustment as provided in Article 7 herein.
SECTION 5.4 EXERCISE PERIODS. The exercise periods for the
Warrants are as follows:
(a) The right to exercise the Tranche 1 Warrants shall commence on the
Closing Date (as defined in the Loan Agreement) and terminate on
June 4, 2003 (the "EXPIRATION DATE") (the "TRANCHE 1 EXERCISE
PERIOD").
(b) The Tranche 2 Warrants shall not become exercisable unless and until
Borrower fails to repay the Note in full on or before the three (3)
month anniversary of the Closing Date, in which case the right to
exercise the Tranche 2 Warrants shall commence on the three (3)
month anniversary of the Closing Date and terminate on the
Expiration Date (the "TRANCHE 2 EXERCISE PERIOD").
(c) The Tranche 3 Warrants shall not become exercisable unless and until
Borrower fails to repay the Note in full on or before the six (6)
month anniversary of the Closing Date, in which case the right to
exercise the Tranche 2 Warrants shall commence on the six (6) month
anniversary of the Closing Date and terminate on the Expiration Date
(the "TRANCHE 3 EXERCISE PERIOD").
The Company shall record the exercise period of each Warrant in the
Warrant Register.
SECTION 5.5 CASHLESS EXERCISE.
(a) At any time during the applicable exercise period of any Warrant,
the Warrantholder may, at its option, exchange such Warrants, in whole or in
part (a "WARRANT EXCHANGE"), into the number of fully paid and non-assessable
shares of Common Stock determined in accordance with this Section 5.5, by
surrendering the Warrant Certificate relating to such Warrants at the Office,
accompanied by a notice stating such Warrantholder's intent to effect such
exchange, the number of shares of Common Stock to be exchanged and the date on
which the Warrantholder requests that such Warrant Exchange occur (the "NOTICE
OF EXCHANGE"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange, or, if later, the date the Notice of
Exchange is received by the Company (the "EXCHANGE DATE"). Certificates for
shares of Common Stock issuable upon such Warrant Exchange and, if applicable,
a new Warrant Certificate of like tenor evidencing the balance of the shares of
Common Stock remaining subject to the Warrantholder's Warrant Certificate,
shall be issued as of the Exchange Date and delivered to the Warrantholder
within three (3) days following the Exchange Date. In connection with any
Warrant Exchange, the Warrantholder's Warrant Certificate shall represent the
right to subscribe for and acquire the number of shares of Common Stock
(rounded to the next highest integer) equal to (A) the number of shares of
Common Stock specified by the Warrantholder in its Notice of Exchange (the
"TOTAL SHARE NUMBER") multiplied by (B) the fraction obtained by dividing (i)
the Market Price (defined herein) of a share of Common Stock minus the then
applicable Exercise Price per share; by (ii) the Market Price (defined herein)
of a share of Common Stock.
(b) As used in this Section 5.5, the phrase "MARKET PRICE" at any date
will be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three (3) trading days, in either case as officially reported by the
stock exchange on which the Common Stock is listed or admitted to trading or by
The Nasdaq Stock Market, Inc. ("NASDAQ"), or, if the Common Stock is not listed
or admitted to trading on any national securities exchange or quoted by Nasdaq ,
the average closing bid price as furnished by the OTC Bulletin Board ("OTCBB")
or similar organization if the OTCBB is not reporting such information, or if
the Common Stock is not quoted by OTCBB or a similar organization, at such price
as the Board of Directors in good faith, shall reasonably determine to be market
value, in its sole discretion.
SECTION 5.6 ELIMINATION OF FRACTIONAL INTEREST. The Company shall
not be required to issue certificates representing fraction of shares of Common
Stock upon the exercise of the Warrants, nor shall it be required to issue scrip
or pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction down
to the nearest whole number of shares of Common Stock or other securities,
properties or rights.
ARTICLE VI
RESERVATION OF COMMON STOCK
SECTION 6.1 RESERVATION. The Company shall at all times keep
reserved, free from preemptive rights, out of its authorized Common Stock, or
other securities of the Company issuable upon the exercise of the Warrants, a
number of shares of Common Stock, or such other securities, sufficient to
provide for the exercise of the right of purchase represented by all outstanding
and unexpired Warrants.
SECTION 6.2 COVENANT. The Company covenants that any shares of
Common Stock will, upon issuance, be validly issued and upon payment of the
exercise price therefor, fully paid and free from all taxes payable by the
Company, liens, charges and security interests (except any liens, charges or
security interests created or suffered to be created by any of the
Warrantholders), and will not be subject to any restrictions on voting or
transfer thereof that are created by the Company, except for such restrictions
on transfer under the Securities Act or applicable state securities laws.
ARTICLE VII
ADJUSTMENTS AFFECTING THE EXERCISE OF WARRANTS
SECTION 7.1 SPECIAL DEFINITIONS. For purposes of this Article 7,
the following definition shall applies:
"ORIGINAL ISSUE DATE" shall mean the date on which a Warrant was
first issued.
SECTION 7.2 ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the
Company shall, at any time or from time to time after the Original Issue Date
for the Warrants, effect a subdivision of the outstanding Common Stock, the
number of shares of Common Stock issuable upon exercise of such Warrant shall be
proportionately increased. If the Company shall, at any time or from time to
time after the Original Issue Date for the Warrants, combine the outstanding
shares of Common Stock, the number of shares of Common Stock issuable upon
exercise of such Warrant shall be proportionately decreased and the Exercise
Price shall be proportionately increased. Any adjustment under this Section 7.2
shall become effective at the close of business on the date the
subdivision or combination becomes effective.
SECTION 7.3 ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE, OR
SUBSTITUTION. If the Common Stock issuable upon the exercise of the Warrants
shall be changed into the same or a different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation, or sale of
assets provided for below), then and in each such event the holder of the
Warrants shall have the right thereafter to convert each such share Common Stock
issuable upon the exercise of the Warrants into the kind and amount of shares of
stock and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of Common
Stock for which such Warrants might have been exercised immediately prior to
such reorganization, reclassification, or change, all subject to further
adjustment as provided herein.
SECTION 7.4 ADJUSTMENT FOR MERGER OR REORGANIZATION. In case of any
consolidation or merger of the Company with or into another Company, each
Warrant shall thereafter be exercisable for the kind and amount of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock of the Company deliverable upon exercise of such Warrant would
have been entitled upon such consolidation or merger; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions in this Article 7 set forth
with respect to the rights and interest thereafter of the holders of the
Warrants, to the end that the provisions set forth in this Article 7 shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
the Warrants.
SECTION 7.5 FORM OF WARRANT CERTIFICATE. Irrespective of any
adjustments in the Exercise Price or the kind of Common Stock purchasable upon
the exercise of the Warrants, Warrant Certificates evidencing such Warrants
theretofore or thereafter issued may continue to express the same number and
kind of Common Stock as are stated in the Warrant Certificates initially
issuable pursuant to this Agreement.
SECTION 7.6 NO IMPAIRMENT. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Common Stock to be issued upon the exercise of the
Warrants from time to time outstanding will, when issued, be fully paid and
non-assessable. In addition, without limiting the generality of Section 6.1, the
Company shall take all such action as shall be necessary so that the total
number of shares of Common Stock or other capital stock of the Company then
authorized by the articles of incorporation of the Company as then in effect and
available for the purpose of issuance upon such exercise shall exceed the total
number of shares of Common Stock issuable upon the exercise of all of the
outstanding Warrants. The Company will not, by amendment of its articles 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 to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Article 7 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Warrantholders against impairment.
ARTICLE VIII
NOTICES TO WARRANTHOLDERS
SECTION 8.1 NOTICES TO WARRANTHOLDERS.
(a) Notices to Warrantholders shall be mailed to such holders at the
addresses of such holders as they appear in the Warrant Register. Any such
notice shall be sufficiently given if sent by first-class certified or
registered mail, postage prepaid, facsimile or overnight courier.
(b) In the event (i) of any consolidation or merger or binding
exchange of interests to which the Company is a party and for which approval of
the Holder or any holders of equity interests of the Company is required, or of
the conveyance or sale of all or substantially all of the assets of the Company,
or of any change of the Common Stock or other securities issuable upon exercise
of the Warrants (other than the rights offering made pursuant to an agreement
between the Holder and the Company for which no notice shall be required); or
(ii) the Company shall make any distribution in respect of the Common Stock; or
(iii) of the voluntary or involuntary dissolution, liquidation or winding up of
the Company; then the Company shall send to each Warrantholder at least thirty
(30) days prior to the applicable date hereinafter specified, a written notice
stating (A)
the date for the determination of the holders of Common Stock (or other
securities issuable upon the exercise of the Warrants) entitled to receive any
such distribution, (B) the initial expiration date set forth in any offer for
exchange of interests, or (C) the date on which any such consolidation, merger,
exchange of interests, conveyance, transfer, reclassification, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of Common Stock (or
other securities issuable upon the exercise of the Warrants) shall be entitled
to exchange such Common Stock for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, exchange of
interests, conveyance, transfer, dissolution, liquidation or winding up.
SECTION 8.2 NOTICES TO COMPANY. Any notice or demand authorized by
this Agreement to be given to or on the Company shall be delivered in person or
by facsimile transmission, by courier guaranteeing overnight delivery or mailed
by first-class United States certified or registered mail, postage prepaid, to
the Company as follows:
I-LINK INCORPORATED
00000 XXXXX XXXXXXXXX XXXX XXXXX
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to:
De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xx Xxxxxxx
SECTION 8.3 RECEIPT OF NOTICE. Any notice hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered,
sent by overnight courier or sent by Common Stocked States mail, or by telex or
facsimile transmission, and will be deemed received (a) if sent by certified or
registered mail, return receipt requested, when actually received, (b) if sent
by overnight courier, when actually received, (c) if sent by telex or facsimile
transmission, on the date sent provided confirmatory notice is sent by overnight
courier or by first-class mail, postage prepaid, and (d) if delivered by hand,
on the date of receipt.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 ARBITRATION.
(a) To the fullest extent not prohibited by law, any controversy,
claim or dispute arising out of or relating to this Agreement, including the
determination of the scope or applicability of this Agreement to arbitrate,
shall be settled by final and binding arbitration in accordance with the rules
then in effect of the American Arbitration Association ("AAA"). The decision of
the arbitrators shall be final and binding; PROVIDED, HOWEVER, that where a
remedy for breach is prescribed hereunder or limitations on remedies are
prescribed, the arbitrators shall be bound by such restrictions, and judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(b) In the event of any controversy, claim or dispute that is
subject to arbitration under this Section 9.1, any party thereto may commence
arbitration hereunder by delivering notice to the other party or parties
thereto. Within five business days of delivery of a list of qualified potential
arbitrators from AAA, such parties shall attempt to agree on one arbitrator;
PROVIDED that if such parties cannot agree on one arbitrator within such time
period, each party to the controversy, claim or dispute shall within five
business days thereafter appoint one arbitrator, and the two arbitrators so
appointed shall within five business days of their appointment mutually agree
upon and appoint one additional arbitrator (or, if such arbitrators cannot agree
on an additional arbitrator, the additional arbitrator shall be appointed by the
AAA as provided under its rules); PROVIDED that persons eligible to be selected
as arbitrators shall be limited to attorneys at law who (i) are on the AAA's
Large, Complex Case Panel and
(ii) have practiced law for at least fifteen years as an attorney specializing
in either general commercial litigation or general corporate and commercial
matters.
(c) The arbitration hearing shall commence no later than thirty (30)
business days after the completion of the selection of the arbitrators or at
such other time as the parties shall reasonably agree. Consistent with the
intent of the parties hereto that the arbitration be conducted as expeditiously
as possible, the parties agree that (i) discovery shall be limited to the
production of such documents and the taking of such depositions as the
arbitrator(s) determine are reasonably necessary to the resolution of the
controversy, claim or dispute and (ii) the arbitrator(s) shall limit the
presentation of evidence by each side in such arbitration to not more than ten
(10) full days (or the equivalent thereof) or such shorter period as the
arbitrator(s) shall determine to be necessary in order to resolve the
controversy, claim or dispute. The arbitrator(s) shall be instructed to render a
decision within thirty (30) calendar days of the close of the arbitration
hearing.
(d) The arbitrators shall base their decision on the terms of this
Agreement and the law of the State of Florida, regardless of the law that might
be applicable under conflicts of law principles, and shall render their decision
in writing. Each party agrees to cooperate fully with the arbitrator(s) to
resolve any controversy, claim or dispute. The arbitrator(s) shall not be
empowered to award punitive damages or damages in excess of actual damages. The
venue for all arbitration proceedings shall be Salt Lake City, Utah.
SECTION 9.2 PAYMENT OF TAXES. The Company covenants and agrees that
it will pay when due and payable all documentary, stamp and other taxes
attributable to the issuance or delivery of the Warrant Certificates or of the
Common Stock purchasable upon the exercise of Warrants; PROVIDED, HOWEVER, the
Company shall not be required to pay any tax or taxes that may be payable in
respect of any transfer involving the issue of any Warrant Certificate(s) or any
certificate(s) for Common Stock in a name other than that of the Warrantholder
of such exercised Warrant Certificate(s), and the Company shall not be required
to issue or deliver such Warrant Certificate(s) or any such certificates unless
or until the person or persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 9.3 AMENDMENT.
(a) The Company may modify this Agreement and the terms of the
Warrants only with the consent of the Warrantholders representing at least a
majority of the Common Stock for the purpose of adding any provision to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the holders of the outstanding Warrants.
(b) Any such modification or amendment will be conclusive and
binding on all present and future holders of Warrant Certificates whether or not
they have consented to such modification or amendment or waiver and whether or
not notation of such modification or amendment is made upon such Warrant
Certificates. Any instrument given by or on behalf of any holder of a Warrant
Certificate in connection with any consent to any modification or amendment will
be conclusive and binding on all subsequent holders of such Warrant Certificate.
SECTION 9.4 TERMINATION. This Agreement shall terminate on or
upon (a) the repurchase by the Company of all Warrants, or (b) upon
expiration of the Warrants.
SECTION 9.5 REPORTS TO WARRANTHOLDERS. The Company will cause to be
delivered, by first-class mail, postage prepaid, facsimile or overnight courier,
to each Warrantholder at such Warrantholder's address appearing on the Warrant
Register, a copy of any reports delivered by the Company to any of the holders
of the Common Stock.
SECTION 9.6 GOVERNING LAW. THE LAWS OF THE STATE OF FLORIDA SHALL
GOVERN THIS AGREEMENT AND THE WARRANT CERTIFICATES WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
SECTION 9.7 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the
Warrantholders and the holders of Common Stock any legal or equitable right,
remedy or claim under this Agreement; this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrantholders and the holders of Common
Stock.
SECTION 9.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts,
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 9.9 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 9.10 HEADINGS. The headings of the sections of this
Agreement are inserted for convenience only and shall not constitute a part
of this Agreement.
SECTION 9.11 COMPLETE AGREEMENT. This Agreement constitutes the
entire agreement between the parties relating to the subject matter hereof, and
supersedes all agreements, representations, warranties, statements, promises and
understanding, whether oral or written, with respect to the subject matter
hereof.
SECTION 9.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty
or ambiguity herein shall be construed or resolved against the Company or
Holder, whether under any rule of construction or otherwise. Neither party to
this Agreement shall be considered the draftsman. The Company and Holder
acknowledge and agree that this Agreement has been reviewed, negotiated, and
accepted by them and their respective attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of the Company and Holder.
SECTION 9.13 ASSIGNABILITY. This Agreement shall inure to the benefit and
be binding upon the parties hereto and their respective successors and permitted
assigns. This Agreement shall not be assignable, in whole or in part, by the
Holder without the prior written consent of the Company. Any purported
assignment effected without such consent shall be null and void. A change in
control of either party shall not be deemed to be an assignment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to
be duly executed, as of the date first above written.
I-LINK INCORPORATED
By: ______________________________
Xxxx X. Xxxxxxxxx
Chief Executive Officer
COUNSEL CORPORATION (U.S.)
By: ______________________________
Its: ______________________________
EXHIBIT A
FORM OF TRANCHE 1, 2 & 3 WARRANT CERTIFICATE
I-LINK INCORPORATED
COMMON STOCK PURCHASE WARRANT
NUMBER _______
TRANCHE [1] [2] [3] WARRANT CERTIFICATE EVIDENCING RIGHT TO PURCHASE
5,000,000 SHARES OF COMMON STOCK
(SUBJECT TO ADJUSTMENT)
This is to certify that Counsel Corporation (US), or assigns, is
entitled to purchase up to the above-referenced number of shares of Common Stock
(the "COMMON STOCK") of I-Link Incorporated, a Florida corporation (the
"COMPANY") during the [Tranche 1 Exercise Period] [Tranche 2 Exercise Period]
[Tranche 3 Exercise Period] for the Exercise Price for the [Tranche 1 Warrants]
[Tranche 2 Warrants] [Tranche 3 Warrants] specified in the Warrant Agreement,
dated as of June 4, 2001, between the Company and Counsel Corporation (US), a
Delaware corporation (the "WARRANT AGREEMENT"), pursuant to which this Warrant
Certificate is issued. All rights of the holder of this Warrant Certificate are
subject to the terms and provisions of the Warrant Agreement, copies of which
are available for inspection the Company's office located 00000 Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxx, Xxxx 00000 (the "OFFICE").
This Warrant Certificate is subject to cancellation prior to the [three
(3)] [six (6)] month anniversary of the Closing Date (defined in the Loan
Agreement) in the circumstances described in the Warrant Agreement.
NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES
OF COMMON STOCK THAT MAY BE PURCHASED UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY
APPLICABLE STATE LAW. SUCH WARRANTS AND SHARES MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE LAW, (2) TO THE EXTENT APPLICABLE,
RULE 144 UNDER SUCH ACT (OR SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (3) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL
BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
SUCH REGISTRATION UNDER SUCH ACT IS AVAILABLE.
Subject to the provisions of the Act, applicable state laws and such
Warrant Agreement, this Warrant Certificate and all rights hereunder are
transferable, in whole or in part, at the Office by the holder hereof in person
or by a duly authorized attorney, upon surrender of this Warrant Certificate,
together with the assignment hereof duly endorsed. Until transfer of this
Warrant Certificate on the books of the Company, the Company may treat the
registered holder hereof as the owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be executed on June 4, 2001 in Draper, Utah, by its proper company officers
thereunto duly authorized.
I-LINK INCORPORATED
By: ______________________________
Xxxx Xxxxxxxxx
Chief Executive Officer
Attest:_______________________
Name:_______________________
Title:________________________
EXHIBIT B
ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise any Warrant Certificate)
The undersigned, the registered holder of the attached Warrant
Certificate, hereby irrevocably elects to exercise Warrants represented by such
Warrant Certificate and acquire an aggregate of ______________ shares of Common
Stock of I-Link Incorporated, a Florida corporation, and herewith tenders
payment for such Common Stock in the amount of $__________ (by certified check
or official bank check) in accordance with the terms hereof. The undersigned
requests that the aforementioned Common Stock be registered in the name of
_______________, whose address is ________________________
Dated:___________________
Name of registered holder of Warrant Certificate:
________________________________________________________________
(please print)
Address of registered holder:____________________________________
Signature:_____________________________
(Note: the signature to the foregoing Election must correspond to the name
as written upon the face of the Warrant Certificate in every particular,
without alteration or any change whatsoever.)
