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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 under the Securities
Act and that (A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration
statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel
need express no opinion as to financial statements, the notes
thereto, and the financial schedules and other financial and
statistical data contained therein) and (C) to such other effects
as may reasonably be requested by counsel for the underwriters or
by such seller or its counsel, and (ii) a letter dated such date
from the independent public accountants retained by the Company,
addressed to the underwriters, stating that they are independent
public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements
of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including
information as to the period ending no more than five business days
prior to the date of such letter) with respect to the registration
in respect of which such letter is being given as such underwriters
or seller may reasonably request; and
(g) during normal business hours and with
reasonable notice, make available for inspection by each seller,
any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other,
records, pertinent corporate documents and properties of the
Company, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in
connection with such registration statement and permit such seller,
attorney, accountant or agent to participate in the preparation of
such registration statement.
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For purposes of
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