Exhibit 4.1
EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT
ILINK HOLDINGS
CORP.
This Registration Rights Agreement
(this “ Agreement ”) is made and entered into as
of June 9, 2004 by and among Ilink Holdings Corp., a Delaware
corporation (including its successors and assigns, the “
Company ”), and the shareholders of the Company
signatory hereto (the “ Shareholders
”).
WHEREAS, the Company and certain
Shareholders have entered into a Contribution Agreement (the
“ Contribution Agreement ”), dated as of the
date hereof, pursuant to which, upon the terms and subject to the
conditions contained therein, the Shareholders have agreed to
acquire shares of the Company’s Series 1 Convertible
Preferred Stock, par value $.01 per share (the “ Series 1
Preferred Stock ”);
WHEREAS, the Company and certain
Shareholders have entered into a Stock Purchase Agreement, dated as
of the date hereof (the “ Stock Purchase Agreement
”), pursuant to which, upon the terms and subject to the
conditions contained therein, such Shareholders are purchasing
shares of Series 1 Preferred Stock from the Company;
WHEREAS, simultaneously herewith,
the Shareholders and the Company are executing and delivering a
Shareholders’ Agreement (the “ Shareholders
Agreement ”) providing, among other things, for certain
rights and obligations with respect to the ownership of the shares
of Series 1 Preferred Stock, and shares of the Company’s
common stock to be acquired by the Shareholders upon conversion
thereof;
WHEREAS, (i) to induce the
Shareholders to execute and deliver the Contribution Agreement and
the Stock Purchase Agreement and to consummate the transactions
contemplated thereby and (ii) to induce the Shareholders to execute
and deliver the Shareholders Agreement and to consummate the
transactions contemplated thereby, the Company has agreed to
provide the Shareholders with the registration rights set forth in
this Agreement;
WHEREAS, the Shareholders are
parties to that certain Fourth Amended and Restated Registration
Rights Agreement, made and entered into as of January 29, 2001, by
and among IntraLinks, Inc., a Delaware corporation (“
IntraLinks ”), and the persons signatory thereto (the
“ Existing Registration Rights Agreement
”);
WHEREAS, pursuant to the terms of a
Certificate of Ownership and Merger, promptly following the
execution of this Agreement, the Company intends to effect the
merger (the “ Merger ”) of the Company with and
into IntraLinks, with IntraLinks being the surviving corporation in
the Merger;
WHEREAS, the parties hereto intend
that (i) prior to the Merger, this Agreement will govern the rights
and obligations of the Shareholders, on the one hand, and the
Company, on the other hand, and (ii) immediately following the
Merger, this Agreement will govern the rights and obligations of
the Shareholders, on the one hand, and IntraLinks, as the surviving
corporation in the Merger, on the other hand; and
WHEREAS, upon consummation of the
Merger, the Existing Registration Rights Agreement will terminate
in its entirety and this Agreement will replace and supercede in
its entirety the Existing Registration Rights Agreement.
Accordingly, the parties hereto
agree as follows:
1. Certain Definitions . As
used herein, the following terms shall have the following
respective meanings:
“ Commission ”
shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities
Act.
“ Common Stock ”
shall mean the Common Stock of the Company, $.01 par value, as
constituted as of the date of this Agreement, subject to adjustment
pursuant to the provisions of Section 9 hereof.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934 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.
“ Registration Expenses
” shall mean the expenses in Section 7 hereof.
“ Restricted Stock
” shall mean any shares of Series 1 Preferred Stock or any
shares of Common Stock issued upon conversion of such shares, in
each case which are not freely tradable under the Securities
Act.
“ Securities Act
” shall mean the Securities Act of 1933 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.
“ Selling Expenses
” shall mean the expenses so described in Section 7
hereof.
2. Required Registration
.
(a) At any time on or after the
first anniversary of a Qualified IPO (as defined herein) of the
Company, Shareholders holding in the aggregate at least 30% of the
Restricted Stock (as adjusted for stock splits, stock dividends,
recapitalizations and the like) (the “ Initiating
Holder ”) may request, in writing, that the Company
effect the registration of Restricted Stock having an anticipated
aggregate offering price of at least $2.0 million (based on the
then current market price or fair value and including any shares to
be registered pursuant to any incidental registration rights
described in paragraph 2(b) hereof) in accordance with the intended
methods of distribution as specified by the Initiating Holder in
such notice (the “ Demand Notice ”);
provided , however , that the only securities which
the Company shall be required to register pursuant hereto shall be
shares of Common Stock. A “ Qualified IPO ”
shall mean the completion of a firm commitment initial public
offering of the Company’s Common Stock.
(b) Promptly following receipt of a
Demand Notice under Section 2(a), the Company shall immediately
notify (the “ Company Notice ”) all holders of
Restricted Stock and
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shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of
disposition specified in the Demand Notice, the number of shares of
Restricted Stock specified in such notice (and in any notices
received from other holders of Restricted Stock within 20 days
after their receipt of such notice from the Company). The Company
shall be entitled to include in any registration statement referred
to in this Section 2 shares of Common Stock to be sold by the
Company for its own account. Notwithstanding the foregoing, if the
proposed method of disposition specified by the Initiating Holder
shall be an underwritten public offering, the number of shares of
Restricted Stock to be included in such an offering will be
reduced, first by the Company with respect to shares it wishes to
register in such registration, and second, pro rata
among the requesting holders of Restricted Stock, based on the
total number of shares of Restricted Stock so requested to be
registered, if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect
the marketing of the Restricted Stock to be sold. If such method of
disposition shall be an underwritten public offering, a majority of
the holders of the Restricted Shares may designate the managing
underwriter of such offering.
(c) The Company shall not be
required to effect more than two registrations pursuant to Section
2(a) above. In addition, the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant
to this Agreement more than once in any six (6) month period.
Subject to the foregoing, the Company shall file a registration
statement covering the Restricted Stock so requested to be
registered as soon as practicable after receipt of the request or
requests of the holders of the Restricted Stock. Anything to the
contrary in this Section 2 notwithstanding, a registration shall
not be effected pursuant to this Section 2 with respect to any
Restricted Stock once such Restricted Stock otherwise may be sold
to the public without restriction.
3. Form S-3 Registration
.
(a) At the time that the Company is
qualified to use a Form S-3 (or successor short form registration
form, if applicable) for registration for shares of its own stock
or for shares of its stockholders and if the Company shall receive
from any holder or holders of Restricted Stock a written request or
requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to Restricted
Stock owned by such holder or holders, the Company will:
(i) promptly give written notice of
the proposed registration, and any related qualification or
compliance, to all other holders of Restricted Stock;
and
(ii) as soon as practicable, effect
such registration (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other government 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
holder’s or holders’ Restricted Stock as are specified
in such request, together with all or such portion of the
Restricted Stock of any holder or holders joining in such request
as are specified in a written request given within thirty (30) days
after receipt of such written notice from the
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Company, provided that (i) the
Company may defer such registration for one period of up to 90 days
during any 12-month period and (ii) the Company shall not be
obligated to effect any such registration, qualification or
compliance pursuant to this Agreement (A) more than once in any
twelve month period, or (B) if the Company is not entitled to use
Form S-3 for registration for shares of its own stock or for shares
of its stockholders. Subject to the foregoing, the Company shall
file a registration statement covering the Restricted Stock so
requested to be registered as soon as practicable after receipt of
the request or requests of the holders of the Restricted
Stock.
(b) Registrations effected pursuant
to this Section 3 shall not be counted as requests for registration
effected pursuant to Section 2.
(c) Anything to the contrary in this
Section 3 notwithstanding, a registration shall not be effected
pursuant to this Section 3 (i) for Restricted Stock with an
aggregate market value of less than $2,000,000, or (ii) once the
Restricted Stock otherwise may be sold to the public without
restriction.
4. Incidental Registration .
If the Company at any time (other than pursuant to Section 2
hereof) proposes to register any of its Common Stock under the
Securities Act for sale to the public, whether for its own account
or for the account of other securityholders or both (except with
respect to registration statements on Form S-4 or S-8 or another
form not available for registering the Restricted Stock for sale to
the public), it will give written notice at such time to all
holders of outstanding Restricted Stock of its intention to do so.
Upon the written request of any such holder, given within 30 days
after receipt of any such notice from the Company, to register any
of its Restricted Stock (which request shall state the intended
method of disposition thereof), the Company will use its best
efforts to cause the Restricted Stock as to which registration
shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the
Company, all to the extent requisite to permit the sale or other
disposition by the holder (in accordance with its written request)
of such Restricted Stock so registered; provided that
nothing herein shall prevent the Company from abandoning or
delaying such registration at any time, In the event that any
registration pursuant to this Section 4 shall be, in whole or in
part, an underwritten public offering of Common Stock, any request
by a holder pursuant to this Section 4 to register Restricted Stock
shall specify that either (i) such Restricted Stock is to be
included in the underwriting on the same terms and conditions as
the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted Stock
is to be sold in the open market without any underwriting (except
as such sale may be restricted pursuant to Section 5). The number
of shares of Restricted Stock to be included in such an
underwriting may be reduced pro rata among the
requesting holders of Restricted Stock and other requesting
securityholders who request pursuant to their demand or incidental
registration rights or other similar rights, based upon the total
number of shares so requested to be registered, if and to the
extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein.
5. Restrictions on Public Sale by
Holders of Restricted Stock . Notwithstanding anything to the
contrary contained in Sections 2, 3, and 4, each holder of
Restricted Stock agrees, in connection with a Qualified IPO, if
requested (pursuant to a written
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notice) by the managing underwriter or
underwriters in such Qualified IPO, not to effect any public sale
or distribution of any of the Company’s securities (except as
part of such underwritten offering), including a sale pursuant to
Rule 144, during the period commencing on the date of the request
and continuing for not more than 180 days after the effective date
of the registration statement pursuant to which the Qualified IPO
shall be made or such lesser period as is required by the managing
underwriter.
The foregoing provisions shall not
apply to any holder of Restricted Stock if such holder is prevented
by applicable statute or regulation from entering into any such
agreement; provided , however , that any such holder
shall undertake in its request to participate in any such
underwritten public offering, not to effect any public sale or
distribution of the class of securities covered by such
registration statement (except as part of such underwritten
offering) during such period unless it has provided forty-five (45)
days’ prior written notice of such sale or distribution to
the managing underwriter or underwriters.
6. Registration Procedures and
Expenses . If and whenever the Company is required by the
provisions of Sections 2, 3 and 4 to use its best efforts to effect
the registration of any of the Restricted Stock under the
Securities Act, the Company will, as expeditiously as
possible:
(a) prepare (and afford counsel for
the selling holders reasonable opportunity to review and comment
thereon) and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to
Section 2 hereof, shall be on a form of general applicability
satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective
for the period of the distribution contemplated thereby (determined
as herein after provided);
(b) prepare (and afford counsel for
the selling holders reasonable opportunity to review and comment
thereon) and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective for the period specified in
paragraph (a) above and as comply with the provisions of the
Securities Act with respect to the disposition of all Restricted
Stock covered by such registration statement in accordance with the
sellers’ intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to
each underwriter such number of copies of the registration
statement and the prospectus included therein (including each
preliminary prospectus) as such persons may reasonably request in
order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register
or qualify the Restricted Stock covered by such registration
statement under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where
it would not
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otherwise be required to qualify but
for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) immediately notify each seller
under such registration statement and each underwriter, at any time
when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result
of which the prospectus contained in such registration statement,
as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(f) use its best efforts (if the
offering is underwritten) to furnish, at the request of any
underwriter, on the date that Restricted Stock is delivered to the
underwriters for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters,
stating that such registration statement has become effective
u
