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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
Allin Communications Corporation
--------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
---------------------------------------
(Title of Class of Securities)
019924 10 9
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(CUSIP Number)
Copy to:
Henry Posner, Jr. Bryan D. Rosenberger
500 Greentree Commons Eckert Seamans Cherin & Mellott
381 Mansfield Avenue 42nd Floor, 600 Grant Street
Pittsburgh, PA 15220 Pittsburgh, PA 15219
(412) 928-8800 (412) 566-6000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 6, 1996
----------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
<PAGE>
SCHEDULE 13D
CUSIP No. 019924 10 9
1. Name of Reporting Person: Henry Posner, Jr.
I.R.S. Identification No.: ###-##-####
<TABLE>
<S> <C> <C> <C>
2. Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF/00
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant To Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization: United States
Number of 7. Sole Voting Power: 1,111,240
Shares
Beneficially 8. Shared Voting Power: - 0 -
Owned by
Each 9. Sole Dispositive Power: 1,111,240
Reporting
Person 10. Shared Dispositive Power: - 0 -
With
11. Aggregate Amount Beneficially Owned by Each 1,111,240
Reporting Person:
12. Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11): 22.7%
14. Type of Reporting Person: IN
</TABLE>
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Item 1. Security and Issuer.
The title of the class of equity securities to which this Schedule 13D
relates is the common stock, par value $0.01 per share (the "Common Stock"), of
Allin Communications Corporation (the "Company"). The Company's principal
executive offices are located at 300 Greentree Commons, 381 Mansfield Avenue,
Pittsburgh, Pennsylvania 15220. All share numbers and percentages reported
herein give effect to a 2,400 to 1 split of the Common Stock which occurred in
October, 1996.
Item 2. Identity and Background.
This statement is filed on behalf of Henry Posner, Jr. (the "Reporting
Person"), a United States citizen, whose business address is 500 Greentree
Commons, 381 Mansfield Avenue, Pittsburgh, Pennsylvania 15220. The Reporting
Person's principal occupation is private investor.
During the past five years, the Reporting Person has not (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws, or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Person acquired 964,800 of the shares of Common Stock
reported herein in August 1996 in connection with the merger of SeaVision, Inc.
with and into a wholly owned subsidiary of the Company. In such merger, each
stockholder of SeaVision, Inc. received one share of Common Stock for each share
of SeaVision common stock held by such person. At the time of the merger, the
Common Stock was not registered under Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). In connection with the initial public
offering of the Company's Common Stock, on November 6, 1996 the Reporting Person
acquired 146,440 shares of Common Stock in exchange for the extinguishment of
loans made by the Reporting Person to the Company in the aggregate principal
amount of $1,800,000.
In August 1996, the Reporting Person purchased with $705,882.35 of his
own funds, 7,058.8235 shares of the Company's Series A Convertible Redeemable
Preferred Stock (the "Series A Preferred Stock"), which will become convertible,
at the option of the Reporting Person beginning in May 1997 and ending in
December 1997, into 57,427 shares of Common Stock.
<PAGE>
Item 4. Purpose of Transaction.
The Reporting Person has no present plans or proposals to change the
Company's business, corporate structure, capitalization, management or dividend
policy.
Except as set forth in this Item 4, the Reporting Person has no
present plans or proposals which relate to or would result in any of the
following (although the Reporting Persons reserve the right to develop such
plans or proposals or any other plans relating to the Company and to take action
with respect thereto): (i) the acquisition by any person of additional
securities of the Company, or the disposition of securities of the Company; (ii)
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries; (iii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (v) any material
change in the present capitalization or dividend policy of the Company; (vi) any
other material change in the Company's business or corporate structure; (vii)
changes in the Company's certificate of incorporation, bylaws, or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person; (viii) causing a class of securities of
the Company to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (ix) a class of equity securities of the
Company becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act; or (x) any action similar to any of those
enumerated above.
The Reporting Person, without the consent of the Company, may purchase
additional shares of Common Stock in the open market or in private transactions
at any time. The Reporting Person also owns 7,058.8235 shares of Series A
Preferred Stock which will become convertible, at the option of the Reporting
Person beginning in May 1997 and ending in December 1997, into 57,427 shares of
Common Stock.
Item 5. Interest in Securities of Issuer.
The Reporting Person beneficially owns and has sole voting and
dispositive power with respect to 1,111,240 shares of Common Stock representing
approximately 22.7% of the Common Stock outstanding. The Reporting Person may
also be deemed to own the 57,427 shares of Common Stock into which the
7,058.8235 shares of Series A Preferred Stock owned by the Reporting Person may
be converted. After giving effect to such conversion and assuming no other
change in beneficial ownership or shares outstanding, the Reporting Person would
beneficially own 1,168,667 shares of Common Stock representing approximately
23.6% of the Common Stock outstanding.
<PAGE>
Except as described herein, no transactions in Common Stock were
effected during the past 60 days by the Reporting Person.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
The Reporting Person has agreed with Friedman, Billings, Ramsey & Co.,
Inc., the representative of the underwriters of the Company's initial public
offering, not to sell any shares of Common Stock owned by the Reporting Person
for a period of 360 days following the closing of such offering. The Company
has granted the Reporting Person certain rights to require the Company to
register the shares of Common Stock currently owned by the Reporting Person or
acquired upon conversion of the shares of Series A Preferred Stock owned by the
Reporting Person under the Securities Act of 1933, as amended, for public
offering and sale.
Item 7. Material to be Filed as Exhibits.
A. Letter Agreement dated October 31, 1996 between Friedman, Billings,
Ramsey & Co., Inc. and the Reporting Person.
B. Registration Rights Agreement, dated July 23, 1996, by and among the
Company, the Reporting Person and certain stockholders other of the
Company.
C. Registration Rights Agreement, dated July 23, 1996, by and among the
Company, the Reporting Person and certain stockholders other of the
Company.
<PAGE>
Signatures.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
November 12, 1996 By: /s/ Henry Posner, Jr.
- ----------------- ---------------------
Date Henry Posner, Jr.
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EXHIBIT A
October 31, 1996
Friedman, Billings, Ramsey & Co., Inc.
Potomac Tower
1001 19th Street North, 10th Floor
Arlington, Virginia 22209
Re: Allin Communications Corporation
Proposed Initial Public Offering of Common Stock
Dear Sirs:
The undersigned understands that Friedman, Billings, Ramsey & Co., Inc.,
as Representatives (the "Representatives") of the several underwriters (the
"Underwriters") propose to enter into an Underwriting Agreement with Allin
Communications Corporation (the "Company"), providing for the initial public
offering by the Underwriters, including the Representatives, of common stock,
par value $0.01 per share ("the Common Stock") of the Company (the "Initial
Public Offering").
In consideration of the Underwriters' agreement to purchase, and undertake
the Initial Public Offering of, the Company's Common Stock and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees not to, directly or indirectly, offer,
sell, contract to sell, grant any option to purchase or otherwise dispose of any
Common Stock (including, without limitation, shares of Common Stock which may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and shares of Common
Stock which may be issued upon exercise of a stock option or warrant) or any
securities convertible into or exercisable or exchangeable for such Common Stock
or, in any manner, transfer all or a portion of the economic consequences
associated with the ownership of the Common Stock, for a period of 360 days
after the effective date of the Company's Registration Statement on Form S-1
relating to the Initial Public Offering (the "Registration Statement"), other
than (i) as a gift or gifts, provided the donee or donees thereof agree in
writing to be bound by this letter agreement, (ii) transfers to a transferor's
affiliates, as such term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), provided the transferees agree
in writing to be bound by this letter agreement, or (iii) with the prior written
consent of the Representatives. The undersigned further agrees that for a
period of 360 days after the effective date of the Registration Statement, the
undersigned will not exercise any rights that the undersigned may have to cause
the Company to register (under the Securities Act or otherwise) any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for shares of Common Stock, without the prior written consent of the
Representatives.
<PAGE>
In addition, the undersigned agrees that the Company may, with respect to
any shares of Common Stock for which the undersigned is the record holder, cause
the transfer agent for the Company to note stop transfer instructions with
respect to such shares of Common Stock on the transfer books and records of the
Company. The undersigned further agrees that the undersigned will, if requested
by the Company with respect to any shares of Common Stock for which the
undersigned is the beneficial holder but not the record holder, cause the record
holder of such shares of Common Stock to cause the transfer agent for the
Company to note stop transfer instructions with respect to such shares of Common
Stock on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
__________________________
(Signature)
________________________
(Name - Please Type)
________________________
________________________
________________________
(Address)
________________________
(Social Security or Taxpayer Identification No.)
<PAGE>
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 23rd day of July, 1996, by and among ALLIN
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company"), and the
stockholders of SeaVision, Inc., a Delaware corporation ("SeaVision"), whose
names appear on the signature page hereof (collectively, the "Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, SeaVision and SeaVision Acquisition Corporation, a
Delaware corporation ("SVAC"), have entered into an Agreement and Plan of Merger
pursuant to which SeaVision will be merged with and into SVAC (the "Merger") and
each outstanding share of SeaVision common stock, will be converted into and
exchanged for one share of common stock, par value $0.01 per share, of the
Company (the "Common Stock"); and
WHEREAS, the Common Stock to be issued in the Merger will be issued without
registration under the Securities Act of 1933, as amended, and applicable state
securities laws, and the Company and the Stockholders desire to provide
hereunder for compliance therewith and for the possible registration of the
shares of Common Stock issued upon consummation of the Merger and certain other
shares of Common Stock that the Stockholders may acquire.
NOW, THEREFORE, in consideration of the premises and the mutual
independent covenants contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
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capitalized terms have the meanings set forth below.
Applicable Period - In the case of a Shelf Registration Statement, the
-----------------
period referred to in Section 2.1(a)(ii), and in the case of any other
Registration Statement, nine months or such shorter period as is necessary
to complete the distribution of the Registrable Securities covered thereby.
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Commencement Date - The date which is one year following the Public
-----------------
Offering Date.
Demand - As defined in Section 2.1(a)(i) hereof.
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Exchange Act - The Securities Exchange Act of 1934, as amended, or
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similar federal statute then in effect, and a reference to a particular
section thereof or regulation thereunder shall be deemed to include a
reference to the comparable section, if any, of, or regulation, if any,
under, any such similar federal statute.
Majority Holders - Qualified Holders holding a majority of the
----------------
Registrable Securities included in a Shelf Registration Statement.
Notice of Demand - As defined in Section 2.1(a)(i) hereof.
----------------
Person - An individual, partnership, joint venture, corporation,
------
trust, unincorporated organization or government or any department or
agency thereof.
Piggy-back Registration - A registration of Shares pursuant to Section
-----------------------
2.1(b) hereof.
Prospectus - The prospectus included in a Registration Statement,
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including any preliminary prospectus, and any such Prospectus as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Registration Statement, and by all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including
all exhibits thereto and all material incorporated by reference therein.
Public Offering Date - The date on which the Company closes an initial
--------------------
public offering of Common Stock.
Qualified Holder - Each Stockholder so long as it or he holds any of
----------------
the Shares held by it or him on the Public Offering Date and each Person to
whom a Stockholder or a Qualified Holder transfers such Shares.
Registrable Securities - Any Shares issued to, and on the Commencement
----------------------
Date held by, a Qualified Holder. As to any Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement or, if
earlier, when the Applicable Period shall have expired with respect to such
securities; (ii) they shall have been distributed to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act; (iii) new
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certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration or qualification of them under the
Securities Act or any similar state law then in force; or (iv) they shall
have ceased to be outstanding.
Registration Statement - The Shelf Registration Statement, any
----------------------
registration statement registering Shares held by Qualified Holders
pursuant to Section 2.1(b) hereof and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
SEC - The Securities and Exchange Commission.
---
Securities Act - The Securities Act of 1933, as amended, or similar
--------------
federal statute then in effect, and a reference to a particular section
thereof or regulation thereunder shall be deemed to include a reference to
the comparable section, if any, of, or regulation, if any, under, such
similar federal statute.
Seller - As defined in Section 2.1(g) hereof.
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Shares - The shares of Common Stock to be issued to Qualified Holders
------
upon consummation of the Merger, any shares of Common Stock issued to a
Qualified Holder prior to or as of the Public Offering Date and any shares
of Common Stock issued as a stock dividend or in a stock split or in
connection with any other stock combination or division in respect of the
Shares.
Shelf Registration - A registration required to be effected pursuant
------------------
to Section 2.1(a).
Shelf Registration Statement - A "shelf" registration statement of the
----------------------------
Company pursuant to the provisions of Section 2.1(a) of this Agreement
which covers Registrable Securities and is filed on Form S-3 under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
Underwriter - A person who acts as an underwriter with respect to any
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registration of securities pursuant to this Agreement.
Underwritten Offering - A sale of securities of the Company to an
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Underwriter or Underwriters for reoffering to the public.
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<PAGE>
ARTICLE II
REGISTRATION RIGHTS
2.1 Registration.
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(a) Shelf Registration.
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(i) At any time from the Commencement Date until the third
anniversary of the Commencement Date, one or more Qualified Holders
holding in the aggregate at least ten percent of the Shares (as
adjusted for stock splits, stock dividends, reverse stock splits or
any other combination or division of the Shares) will be entitled to
deliver to the Company, on one occasion, a written notice (a "Demand")
requesting a Shelf Registration. Upon receipt of a Demand, the
Company will deliver to each Qualified Holder a written notice (the
"Notice of Demand") which shall include a copy of the Demand together
with a statement to the effect that the Company will include all
Registrable Securities in a Shelf Registration pursuant to this
Section 2.1(a) unless the Company receives, by a date specified in the
Notice of Demand (which shall be no less than 20 days following the
delivery of such Notice of Demand), a notice from a Qualified Holder
to exclude all or a portion of such Qualified Holder's Registrable
Securities from such Shelf Registration. Following receipt of a
Demand, the Company shall, as expeditiously as reasonably possible,
use its best efforts to effect a Shelf Registration of all Registrable
Securities except those which a Qualified Holder has on a timely basis
requested to be excluded from such Shelf Registration and those of any
Qualified Holder who does not provide information reasonably requested
by the Company in connection with the Shelf Registration Statement.
The Company may, at its option, include in such Shelf Registration
Statement shares held by any shareholder other than the Qualified
Holders having rights similar to those contained in this Section
2.1(a).
(ii) The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective for a period of three
years following the date on which such Shelf Registration Statement is
initially declared effective or such shorter period which will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by
the rules, regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration Statement or by
the Securities Act or by any other rules and regulations thereunder
for shelf registration.
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(iii) On one occasion, the Majority Holders of the Registrable
Securities covered by a Shelf Registration Statement may elect to have
such Registrable Securities sold in an Underwritten Offering. In such
event, the Company shall be entitled to engage an investment banking
firm selected by the Company to serve as Underwriter.
(b) Piggy-back Registration.
-----------------------
(i) If the Company at any time prior to the third anniversary of
the Commencement Date proposes to register any of its securities for
an Underwritten Offering under the Securities Act (other than pursuant
to a Shelf Registration), whether or not for sale for its own account,
and if the registration form proposed to be used may be used for the
registration of Registrable Securities, the Company will each such
time give prompt written notice to all Qualified Holders of its
intention to do so. Upon the written request of any such Qualified
Holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be
disposed of by such Qualified Holder), the Company will use its best
efforts to cause all such Registrable Securities as to which Qualified
Holders requested registration to be registered under the Securities
Act (with the securities which the Company at the time proposes to
register), so as to permit the sale or other disposition by such
Qualified Holders of such Registrable Securities.
(ii) No registration effected pursuant to this Section 2.1(b)
shall be deemed to have been effected pursuant to Section 2.1(a)
hereof.
(iii) Notwithstanding anything to the contrary in this Section
2.1(b), the Company shall have the right to discontinue any Piggy-back
Registration at any time prior to the effective date of such Piggy-
back Registration if the registration of other securities giving rise
to such Piggy-back Registration is discontinued; but no such
discontinuation shall preclude an immediate or subsequent request for
a Shelf Registration.
(c) Registration Procedures. If the Company is required by the
-----------------------
provisions of this Section 2.1 to use its best efforts to effect or cause
the registration of any Registrable Securities under the Securities Act as
provided in this Section, the Company will, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its best efforts to
cause such registration statement to become and remain effective
during the Applicable Period; in the case of a Shelf Registration
Statement, such Registration Statement shall be (A) reasonably
acceptable to special counsel for the
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Qualified Holders and (B) available for the sale of Registrable
Securities in accordance with the intended method or methods of
distribution of the selling Qualified Holders (subject to the
limitation set forth in Section 2.1(a)(iii) hereof);
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement as may be necessary to keep
such Registration Statement effective for the Applicable Period and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of all securities covered by such
Registration Statement during the Applicable Period in accordance with
the intended methods of disposition by the seller or sellers thereof
set forth in such Registration Statement;
(iii) furnish to each seller of such Registrable Securities and,
in the case of an Underwritten Offering, each Underwriter of the
securities being sold by such seller, such number of copies of such
Registration Statement, such number of copies of the Prospectus
included in such Registration Statement and such other documents as
such seller and Underwriter may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (including any Prospectus amended or
supplemented as set forth in Section 2.1(c)(vi));
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as any seller and
each Underwriter of the securities being sold by such seller shall
reasonably request, and do any and all other acts and things which may
be necessary or advisable to enable such seller and underwriter to
consummate the disposition in such jurisdictions of such Registrable
Securities owned by such seller; provided, the Company shall not for
any such purpose be required to (A) qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this Section 2.1(c)(iv) be obligated to be
qualified, (B) subject itself to taxation in any such jurisdiction,
(C) to consent to general service of process in any such
jurisdictions, or (D) register or qualify such Registrable Securities
in more than ten states;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such Registration Statement (i) of the issuance by the SEC
or any state
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securities authority of any stop order suspending the effectiveness of
such Registration Statement or the initiation of any proceedings for
that purpose, (ii) of receipt of notification with respect to the
suspension of the qualification of the Registrable Securities for
offer or sale in any jurisdiction or the initiation of any proceeding
for such purpose, (iii) at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act, of the Company's
becoming aware that the Prospectus included 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 (other than
a fact relating to such seller), and promptly use its best efforts to
prepare a Prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(vii) otherwise use its best efforts to comply with federal and
state laws and all applicable rules and regulations of the SEC, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement which shall satisfy the provisions
of Section 11(a) of the Securities Act;
(viii) use its best efforts (A) to cause all such Registrable
Securities covered by such Registration Statement to be listed on each
securities exchange on which similar securities issued by the Company
are then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or (B) to secure
designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security"
within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing
that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such
Registrable Securities with the National Association of Securities
Dealers;
(ix) provide a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(x) in the case of an Underwritten Offering, enter into an
underwriting agreement in customary form and take such other actions
as Majority Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
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(xi) in the case of an Underwritten Offering, use its best
efforts to obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters of the type customarily
covered by such opinions and "cold comfort" letters;
(xii) make available for inspection by any seller of such
Registrable Securities covered by such Registration Statement, by any
Underwriter participating in any disposition to be effected pursuant
to such Registration Statement and by any attorney, accountant or
other agent retained by any such seller or any such Underwriter, all
pertinent financial and other records, pertinent corporate documents
and properties of the Company, and cause all of 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; provided,
however, that all such persons shall agree to standard confidentiality
provisions regarding all such records, documents and information; and
(xiii) permit any holder of Registrable Securities which holder,
in the sole and exclusive judgment, exercised in good faith, of such
holder, might be deemed to be a controlling person of the Company, to
participate in the preparation of such registration or comparable
statement.
Each Qualified Holder shall be deemed to have agreed by including
Registrable Securities in a Registration Statement that upon receipt of any
notice from the Company of the happening of any event of the kind described
in Section 2.1(c)(vi) hereof, such Qualified Holder will forthwith
discontinue such Qualified Holder's disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Qualified Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.1(c)(vi) hereof and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Qualified Holder's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the Applicable Period shall be extended
by the number of days during the period from and including the date of the
giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated
by Section 2.1(c)(vi) hereof.
If any Registration Statement, Prospectus or comparable statement
refers to any holder by name or otherwise as the holder of any securities
of the Company, then (whether or not, in the sole and exclusive judgment,
exercised in good faith, of such holder, such holder is or might be deemed
to be a controlling person of the Company)
-10-
<PAGE>
such holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such holder and
presented to the Company in writing, to the effect that the holding of such
holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such holder will assist
in meeting any future financial requirements of the Company, or (ii) in the
event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal or state statute then
in force, the deletion of the reference to such holder. Each seller shall
provide to the Company in writing information concerning itself required by
law to be included in any Registration Statement registering shares held by
such seller.
(d) Registration Expenses. The Company shall, whether or not any
---------------------
Shelf Registration or Piggy-back Registration shall become effective, pay
all expenses incident to its performance of or compliance with this Section
in connection with a Shelf Registration or Piggy-back Registration,
including without limitation all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws (subject to the
limitation set forth in Section 2.1(c)(iv) hereof), printing expenses,
messenger and delivery expenses, fees and disbursements of counsel for the
Company and all independent public accountants (including the expenses of
any audit and/or "cold comfort" letter) and other persons retained by the
Company and reasonable fees and disbursements of one counsel or firm of
counsel chosen by the Majority Holders, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(excluding underwriting commissions and discounts). In all cases, any
allocation of Company personnel or other general overhead expenses of the
Company or other expenses for the preparation of financial statements or
other data normally prepared by the Company in the ordinary course of its
business shall be borne by the Company.
(e) Indemnification and Contribution. The Company hereby indemnifies,
--------------------------------
to the extent permitted by law, each Qualified Holder, its officers and
directors, if any, and each Person, if any, who controls such Qualified
Holder within the meaning of Section 15 of the Securities Act, against all
losses, claims, damages, liabilities (or proceedings in respect thereof)
and expenses (under the Securities Act or common law or otherwise), joint
or several, caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities (or proceedings in respect thereof) or
expenses are caused by any untrue statement or alleged untrue statement
contained in or by any omission or alleged omission from information
respecting such Qualified Holder furnished in writing to the Company by
such Qualified Holder expressly for use therein. If the offering pursuant
to any
-11-
<PAGE>
Registration Statement provided for under this Section is made through
Underwriters, the Company agrees to enter into an underwriting agreement in
customary form with such Underwriters and to indemnify such Underwriters,
their officers and directors, if any, and each Person, if any, who controls
such Underwriters within the meaning of Section 15 of the Securities Act,
against all losses, claims, damages, liabilities (or proceedings in respect
thereof) and expenses (under the Securities Act or common law or
otherwise), joint or several, caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities (or proceedings in
respect thereof) or expenses are caused by any untrue statement or alleged
untrue statement contained in or by any omission or alleged omission from
information respecting such Underwriters or the participating Qualified
Holders furnished in writing to the Company by such Underwriters or the
participating Qualified Holders expressly for use therein. In connection
with any Registration Statement with respect to Registrable Securities held
by a Qualified Holder, each such Qualified Holder will furnish to the
Company in writing such information respecting such Qualified Holder as
shall be reasonably requested by the Company for use in any such
Registration Statement or Prospectus and will indemnify, to the extent
permitted by law, the Company, its officers and directors and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses resulting from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated in the
Registration Statement or Prospectus or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement
is contained in or such omission is from information so furnished in
writing by such Qualified Holder expressly for use therein. If the
offering pursuant to any such Registration Statement is made through
Underwriters, each such Qualified Holder agrees to enter into an
underwriting agreement in customary form with such Underwriters, and to
indemnify such Underwriters, their officers and directors, if any, and each
Person, if any, who controls such Underwriters within the meaning of
Section 15 of the Securities Act to the same extent as hereinbefore
provided with respect to indemnification by such Qualified Holder of the
Company. Any Person entitled to indemnification under the provisions of
this Section 2.1(e) shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such claim, permit such indemnifying party to assume the defense of such
claim, with counsel reasonably satisfactory to the indemnified party; and
if such defense is so assumed, such indemnifying party shall not enter into
any settlement without the consent of the indemnified party if such
settlement attributes liability to the indemnified party and
-12-
<PAGE>
such indemnifying party shall not be subject to any liability for any such
settlement made without its consent (which consent shall not be
unreasonably withheld); and any underwriting agreement entered into with
respect to any Registration Statement provided for under this Section shall
so provide. In the event an indemnifying party shall not be entitled, or
elects not, to assume the defense of a claim, such indemnifying party shall
not be obligated to pay the fees and expenses of more than one counsel or
firm of counsel for all parties indemnified by such indemnifying party in
respect of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties in respect to such claim.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a participating Qualified Holder, its
officers, directors or any Person, if any, who controls such Qualified
Holder as aforesaid, and shall survive the transfer of such securities by
such Qualified Holder.
If for any reason the foregoing indemnity is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages, liabilities or expenses
(x) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the indemnified
party on the other or (y) if the allocation provided by clause (x) above is
not permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other
but also the relative fault of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations.
Contributions required to be made by an Underwriter, if any, shall be
governed by the terms of the underwriting agreement. Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Certain Limitations on Registration Rights.
------------------------------------------
(i) In the case of an Underwritten Offering under a Shelf
Registration, if the Majority Holders determine to enter into an
underwriting agreement in connection therewith, or, in the case of a
Piggy-back Registration, if the Company or holders of securities
initially requesting or demanding such registration have determined to
enter into an underwriting agreement in connection therewith, all
Registrable Securities to be included in such registration shall be
subject to such underwriting agreement, and no Person may participate
in such registration unless such Person agrees to sell such Person's
securities on the basis provided in the underwriting arrangements
approved by the Company or such holders and completes and/or
-13-
<PAGE>
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other reasonable documents which must be
executed under the terms of such underwriting arrangements.
(ii) Notwithstanding anything to the contrary in this Section
2.1, if the Company shall previously have received a request for
registration under this or any other registration rights agreement,
and if such previous registrations shall not have been withdrawn or
abandoned, the Company will not effect any registration of any of its
securities under the Securities Act (other than a registration on Form
S-4 or S-8 (or any similar form) or other publicly registered offering
pursuant to the Securities Act pertaining to the issuance of
securities under any benefit plan, employee compensation plan, or
employee or director stock purchase plan or in connection with an
offer of securities solely to existing security holders) whether or
not for sale for its own account, until a period of three months shall
have elapsed from the effective date of such previous registration;
and the Company shall so provide in any registration rights agreements
hereafter entered into with respect to any of its securities.
(g) Allocation of Securities Included in Registration Statement. In
-----------------------------------------------------------
the case of an Underwritten Offering, if the Company's managing Underwriter
shall advise the Company and the Qualified Holders in writing that the
inclusion in any registration pursuant to this Section of some or all of
the Registrable Securities sought to be registered by the holders
requesting such registration creates a substantial risk that the proceeds
or price per unit the Sellers (as defined below) will derive from such
registration will be reduced or that the number of securities to be
registered (including those sought to be registered at the instance of the
Company and any other party entitled to participate in such registration as
well as those sought to be registered by the Qualified Holders) is too
large a number to be reasonably sold, then the number of Registrable
Securities sought to be registered by each Seller shall be reduced pro rata
in proportion to the number of securities sought to be registered by all
Sellers to the extent necessary to reduce the number of securities to be
registered to the number recommended by the managing underwriter.
For purposes of this Section 2.1(g) the term "Seller" shall mean and
include the Company and each holder of securities (including, but not
limited to, Registrable Securities) entitled to participate in the subject
registration.
(h) Limitations on Sale or Distribution of Other Securities. Each
-------------------------------------------------------
holder of Registrable Securities shall be deemed to have agreed by the
inclusion of Registrable Securities in a Registration Statement not to
effect any public sale or distribution, including (if requested by the
Underwriter) any sale pursuant to Rule 144 under the Securities Act, of any
Registrable Securities, and to use such holder's best efforts not to effect
any public sale or distribution of any other equity security of the Company
-14-
<PAGE>
or of any security convertible into or exchangeable or exercisable for any
equity security of the Company (other than as part of such underwritten
public offering) within 7 days before or 90 days (or such other period to
which the Underwriters of such offering may consent) after the effective
date of any Registration Statement filed by the Company pursuant to this
Article II or other agreement providing for registration rights.
2.2 Rule 144. If the Company shall have filed a registration
--------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
Registration Statement pursuant to the requirements of the Securities Act, the
Company covenants that it will timely file the reports required to be filed by
it under the Securities Act or the Exchange Act (including but not limited to
the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(l) of Rule 144 adopted by the SEC under the Securities Act) and
the rules and regulations adopted by the SEC thereunder (or, if the Company is
not required to file such reports, will, upon the request of any Qualified
Holder, make publicly available such information), and will take such further
action as any Qualified Holder may reasonably request, all to the extent
required from time to time to enable such Qualified Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Qualified Holder, the
Company will deliver to such Qualified Holder a written statement as to whether
it has complied with such requirements.
ARTICLE III
MISCELLANEOUS
3.1 Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Majority Holders; provided, however, that no amendment, modification or
-------- -------
supplement or waiver or consent to the departure with respect to the provisions
of Sections 2.1(a) or 2.1(e) hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities.
3.2 Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective representatives, administrators, heirs, successors and assigns, as
applicable, including, without limitation and without the need for an express
assignment, subsequent Qualified Holders. If any successor, assignee or
transferee of any Qualified Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable
-15-
<PAGE>
Securities such Person shall be entitled to receive the benefits hereof and
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
3.3 Notices. All notices and other communications provided for
-------
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
if to the Company, to:
Allin Communications Corporation
300 Greentree Commons
381 Mansfield Avenue
Pittsburgh, PA 15220
Attention: Richard W. Talarico
FAX: (708) 377-0907
if to a Qualified Holder, to:
the most recent address of such Qualified Holder on the books of
the Company
All such notices and communications shall be deemed to have been given or
made (i) when delivered by hand, (ii) two business days after being
deposited in the mail, postage prepaid, (iii) when telexed, answer-back
received or (iv) when telecopied, receipt acknowledged.
3.4 Descriptive Headings. The headings in this Agreement are for
--------------------
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
3.5 Severability. In the event that any one or more of the
------------
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of such provision, paragraph, word, clause, phrase or sentence in
every other respect and of the remaining provisions, paragraphs, words, clauses,
phrases or sentences hereof shall not be in any way impaired, it being intended
that all rights, powers and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
3.6 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
-16-
<PAGE>
3.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware, without
regard to the conflicts of laws rules thereof.
[signatures appear on next page]
-17-
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
ALLIN COMMUNICATIONS CORPORATION
By:
-------------------------------
Title:
----------------------------
STOCKHOLDERS
----------------------------------
Henry Posner, Jr.
----------------------------------
Thomas D. Wright
----------------------------------
Terence M. Graunke
----------------------------------
James C. Roddey
----------------------------------
Richard W. Talarico
----------------------------------
Brian K. Blair
----------------------------------
R. Daniel Foreman
----------------------------------
Thomas J. Wiegand
(Signatures continued on next page)
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<PAGE>
(Signatures continued from previous page)
----------------------------------
Larry R. Hamilton
----------------------------------
William C. Kavan
----------------------------------
Mark Kottler
----------------------------------
David F. Gould
----------------------------------
Christina Hopper
----------------------------------
Robin Levine
-19-
<PAGE>
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 23rd day of July, 1996, by and among ALLIN
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company"), William C.
Kavan ("Kavan"), Mark Kottler ("Kottler") and those persons whose names appear
on the signature page hereof (collectively, the "Subscribers," and collectively
with Kavan and Kottler, the "Preferred Holders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, concurrently with the execution of this Agreement, Subscribers
have agreed to purchase from the Company, and the Company has agreed to sell and
issue to Subscribers, shares of Series A Convertible Preferred Stock, par value
$100 per share, of the Company (the "Convertible Preferred Stock"); and
WHEREAS, the Company has the right to convert certain loans made by
Kavan and Kottler in the aggregate principal amount of $1,500,000 and, with
respect to which, the Company is a co-obligor, into shares of Convertible
Preferred Stock; and
WHEREAS, the Convertible Preferred Stock will be issued to the Preferred
Holders without registration under the Securities Act of 1933, as amended, and
applicable state securities laws, and the Company and the Preferred Holders
desire to provide hereunder for compliance therewith and for the possible
registration of the shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") issuable upon conversion of the Convertible
Preferred Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
independent covenants contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
-----------
capitalized terms have the meanings set forth below:
<PAGE>
Applicable Period - In the case of a Shelf Registration Statement, the
-----------------
period referred to in Section 2.1(a)(ii), and in the case of any other
Registration Statement, nine months or such shorter period as is necessary
to complete the distribution of the Registrable Securities covered thereby.
Commencement Date - The last date on which the shares of Convertible
-----------------
Preferred Stock may be converted into Common Stock.
Conversion Shares - The shares of Common Stock issued to Qualified
-----------------
Holders upon conversion of shares of Convertible Preferred Stock into
shares of Common Stock and any shares of Common Stock issued as a stock
dividend or in a stock split or in connection with any other stock
combination or division in respect of the Conversion Shares issued upon
such conversion.
Demand - As defined in Section 2.1(a)(i) hereof.
------
Exchange Act - The Securities Exchange Act of 1934, as amended, or
------------
similar federal statute then in effect, and a reference to a particular
section thereof or regulation thereunder shall be deemed to include a
reference to the comparable section, if any, of, or regulation, if any,
under, any such similar federal statute.
Majority Holders - Qualified Holders holding a majority of the
----------------
Registrable Securities included in a Shelf Registration Statement.
Notice of Demand - As defined in Section 2.1(a)(i) hereof.
----------------
Person - An individual, partnership, joint venture, corporation,
------
trust, unincorporated organization or government or any department or
agency thereof.
Piggy-back Registration - A registration of Conversion Shares pursuant
-----------------------
to Section 2.1(b) hereof.
Qualified Holder - Each Preferred Holder so long as it or he holds any
----------------
of the Conversion Shares held by it or him on the Commencement Date and
each Person to whom a Preferred Holder or a Qualified Holder transfers such
Conversion Shares.
Prospectus - The prospectus included in a Registration Statement,
----------
including any preliminary prospectus, and any such Prospectus as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Registration Statement, and by all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including
all exhibits thereto and all material incorporated by reference therein.
<PAGE>
Registrable Securities - Any Conversion Shares issued to, and on the
----------------------
Commencement Date held by, a Qualified Holder. As to any Registrable
Securities, once issued such securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement or, if earlier, when the Applicable Period shall
have expired with respect to such securities; (ii) they shall have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act; (iii) new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require registration
or qualification of them under the Securities Act or any similar state law
then in force; or (iv) they shall have ceased to be outstanding.
Registration Statement - The Shelf Registration Statement, any
----------------------
registration statement registering shares held by Qualified Holders
pursuant to Section 2.1(b) hereof and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
SEC - The Securities and Exchange Commission.
---
Securities Act - The Securities Act of 1933, as amended, or similar
--------------
federal statute then in effect, and a reference to a particular section
thereof or regulation thereunder shall be deemed to include a reference to
the comparable section, if any, of, or regulation, if any, under, such
similar federal statute.
Seller - As defined in Section 2.1(g) hereof.
------
Shelf Registration - A registration required to be effected pursuant
------------------
to Section 2.1(a).
Shelf Registration Statement - A "shelf" registration statement of the
----------------------------
Company pursuant to the provisions of Section 2.1(a) of this Agreement
which covers Registrable Securities and is filed on Form S-3 under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
Underwriter - A person who acts as an underwriter with respect to any
-----------
registration of securities pursuant to this Agreement.
Underwritten Offering - A sale of securities of the Company to an
---------------------
Underwriter or Underwriters for reoffering to the public.
<PAGE>
ARTICLE II
REGISTRATION RIGHTS
2.1 Registration.
------------
(a) Shelf Registration.
------------------
(i) At any time from the Commencement Date until the third
anniversary of the Commencement Date, one or more Qualified Holders
holding in the aggregate at least the number of Conversion Shares into
which 5,000 shares of Convertible Preferred Stock have been converted
(as adjusted for stock splits, stock dividends, reverse stock splits
or any other combination or division of the Conversion Shares) will be
entitled to deliver to the Company, on one occasion, a written notice
(a "Demand") requesting a Shelf Registration. Upon receipt of a
Demand, the Company will deliver to each Qualified Holder a written
notice (the "Notice of Demand") which shall include a copy of the
Demand together with a statement to the effect that the Company will
include all Registrable Securities in a Shelf Registration pursuant to
this Section 2.1(a) unless the Company receives, by a date specified
in the Notice of Demand (which shall be no less than 20 days following
the delivery of such Notice of Demand), a notice from a Qualified
Holder to exclude all or a portion of such Qualified Holder's
Registrable Securities from such Shelf Registration. Following
receipt of a Demand, the Company shall, as expeditiously as reasonably
possible, use its best efforts to effect a Shelf Registration of all
Registrable Securities except those which a Qualified Holder has on a
timely basis requested to be excluded from such Shelf Registration and
those of any Qualified Holder who does not provide information
reasonably requested by the Company in connection with the Shelf
Registration Statement. The Company may, at its option, include in
such Shelf Registration Statement shares held by any shareholder other
than the Qualified Holders having rights similar to those contained in
this Section 2.1(a).
(ii) The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective for a period of three
years following the date on which such Shelf Registration Statement is
initially declared effective or such shorter period which will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by
the rules, regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration Statement
-4-
<PAGE>
or by the Securities Act or by any other rules and regulations
thereunder for shelf registration.
(iii) On one occasion, the Majority Holders of the Registrable
Securities covered by a Shelf Registration Statement may elect to have
such Registrable Securities sold in an Underwritten Offering. In such
event, the Company shall be entitled to engage an investment banking
firm selected by the Company to serve as Underwriter.
(b) Piggy-back Registration.
-----------------------
(i) If the Company at any time prior to the third anniversary of
the Commencement Date proposes to register any of its securities for
an Underwritten Offering under the Securities Act (other than pursuant
to a Shelf Registration), whether or not for sale for its own account,
and if the registration form proposed to be used may be used for the
registration of Registrable Securities, the Company will each such
time give prompt written notice to all Qualified Holders of its
intention to do so. Upon the written request of any such Qualified
Holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be
disposed of by such Qualified Holder), the Company will use its best
efforts to cause all such Registrable Securities as to which Qualified
Holders requested registration to be registered under the Securities
Act (with the securities which the Company at the time proposes to
register), so as to permit the sale or other disposition by such
Qualified Holders of such Registrable Securities.
(ii) No registration effected pursuant to this Section 2.1(b)
shall be deemed to have been effected pursuant to Section 2.1(a)
hereof.
(iii) Notwithstanding anything to the contrary in this Section
2.1(b), the Company shall have the right to discontinue any Piggy-back
Registration at any time prior to the effective date of such Piggy-
back Registration if the registration of other securities giving rise
to such Piggy-back Registration is discontinued; but no such
discontinuation shall preclude an immediate or subsequent request for
a Shelf Registration.
(c) Registration Procedures. If the Company is required by the
-----------------------
provisions of this Section 2.1 to use its best efforts to effect or cause
the registration of any Registrable Securities under the Securities Act as
provided in this Section, the Company will, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its best efforts to
cause such
-5-
<PAGE>
registration statement to become and remain effective during the
Applicable Period; in the case of a Shelf Registration Statement, such
Registration Statement shall be (A) reasonably acceptable to special
counsel for the Qualified Holders and (B) available for the sale of
Registrable Securities in accordance with the intended method or
methods of distribution of the selling Qualified Holders (subject to
the limitation set forth in Section 2.1(a)(iii) hereof);
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement as may be necessary to keep
such Registration Statement effective for the Applicable Period and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of all securities covered by such
Registration Statement during the Applicable Period in accordance with
the intended methods of disposition by the seller or sellers thereof
set forth in such Registration Statement;
(iii) furnish to each seller of such Registrable Securities and,
in the case of an Underwritten Offering, each Underwriter of the
securities being sold by such seller, such number of copies of such
Registration Statement, such number of copies of the Prospectus
included in such Registration Statement and such other documents as
such seller and Underwriter may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (including any Prospectus amended or
supplemented as set forth in Section 2.1(c)(vi));
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as any seller and
each Underwriter of the securities being sold by such seller shall
reasonably request, and do any and all other acts and things which may
be necessary or advisable to enable such seller and underwriter to
consummate the disposition in such jurisdictions of such Registrable
Securities owned by such seller; provided, the Company shall not for
any such purpose be required to (A) qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this Section 2.1(c)(iv) be obligated to be
qualified, (B) subject itself to taxation in any such jurisdiction,
(C) to consent to general service of process in any such
jurisdictions, or (D) register or qualify such Registrable Securities
in more than ten states;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
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<PAGE>
(vi) notify each seller of any such Registrable Securities
covered by such Registration Statement (i) of the issuance by the SEC
or any state securities authority of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose, (ii) of receipt of notification with
respect to the suspension of the qualification of the Registrable
Securities for offer or sale in any jurisdiction or the initiation of
any proceeding for such purpose, (iii) at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act,
of the Company's becoming aware that the Prospectus included 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
(other than a fact relating to such seller), and promptly use its best
efforts to prepare a Prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(vii) otherwise use its best efforts to comply with federal and
state laws and all applicable rules and regulations of the SEC, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement which shall satisfy the provisions
of Section 11(a) of the Securities Act;
(viii) use its best efforts (A) to cause all such Registrable
Securities covered by such Registration Statement to be listed on each
securities exchange on which similar securities issued by the Company
are then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or (B) to secure
designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security"
within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing
that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such
Registrable Securities with the National Association of Securities
Dealers;
(ix) provide a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(x) in the case of an Underwritten Offering, enter into an
underwriting agreement in customary form and take such other actions
as
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<PAGE>
Majority Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xi) in the case of an Underwritten Offering, use its best
efforts to obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters of the type customarily
covered by such opinions and "cold comfort" letters;
(xii) make available for inspection by any seller of such
Registrable Securities covered by such Registration Statement, by any
Underwriter participating in any disposition to be effected pursuant
to such Registration Statement and by any attorney, accountant or
other agent retained by any such seller or any such Underwriter, all
pertinent financial and other records, pertinent corporate documents
and properties of the Company, and cause all of 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; provided,
however, that all such persons shall agree to standard confidentiality
provisions regarding all such records, documents and information; and
(xiii) permit any holder of Registrable Securities which holder,
in the sole and exclusive judgment, exercised in good faith, of such
holder, might be deemed to be a controlling person of the Company, to
participate in the preparation of such registration or comparable
statement.
Each Qualified Holder shall be deemed to have agreed by including
Registrable Securities in a Registration Statement that upon receipt of any
notice from the Company of the happening of any event of the kind described
in Section 2.1(c)(vi) hereof, such Qualified Holder will forthwith
discontinue such Qualified Holder's disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Qualified Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.1(c)(vi) hereof and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Qualified Holder's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the Applicable Period shall be extended
by the number of days during the period from and including the date of the
giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated
by Section 2.1(c)(vi) hereof.
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<PAGE>
If any Registration Statement, Prospectus or comparable statement
refers to any holder by name or otherwise as the holder of any securities
of the Company, then (whether or not, in the sole and exclusive judgment,
exercised in good faith, of such holder, such holder is or might be deemed
to be a controlling person of the Company) such holder shall have the right
to require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such holder and presented to the Company in
writing, to the effect that the holding of such holder of such securities
is not to be construed as a recommendation by such holder of the investment
quality of the Company's securities covered thereby and that such holding
does not imply that such holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such reference to
such holder by name or otherwise is not required by the Securities Act or
any similar federal or state statute then in force, the deletion of the
reference to such holder. Each seller shall provide to the Company in
writing information concerning itself required by law to be included in any
Registration Statement registering shares held by such seller.
(d) Registration Expenses. The Company shall, whether or not any
---------------------
Shelf Registration or Piggy-back Registration shall become effective, pay
all expenses incident to its performance of or compliance with this Section
in connection with a Shelf Registration or Piggy-back Registration,
including without limitation all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws (subject to the
limitation set forth in Section 2.1(c)(iv) hereof), printing expenses,
messenger and delivery expenses, fees and disbursements of counsel for the
Company and all independent public accountants (including the expenses of
any audit and/or "cold comfort" letter) and other persons retained by the
Company and reasonable fees and disbursements of one counsel or firm of
counsel chosen by the Majority Holders, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(excluding underwriting commissions and discounts). In all cases, any
allocation of Company personnel or other general overhead expenses of the
Company or other expenses for the preparation of financial statements or
other data normally prepared by the Company in the ordinary course of its
business shall be borne by the Company.
(e) Indemnification and Contribution. The Company hereby indemnifies,
--------------------------------
to the extent permitted by law, each Qualified Holder, its officers and
directors, if any, and each Person, if any, who controls such Qualified
Holder within the meaning of Section 15 of the Securities Act, against all
losses, claims, damages, liabilities (or proceedings in respect thereof)
and expenses (under the Securities Act or common law or otherwise), joint
or several, caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities (or
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<PAGE>
proceedings in respect thereof) or expenses are caused by any untrue
statement or alleged untrue statement contained in or by any omission or
alleged omission from information respecting such Qualified Holder
furnished in writing to the Company by such Qualified Holder expressly for
use therein. If the offering pursuant to any Registration Statement
provided for under this Section is made through Underwriters, the Company
agrees to enter into an underwriting agreement in customary form with such
Underwriters and to indemnify such Underwriters, their officers and
directors, if any, and each Person, if any, who controls such Underwriters
within the meaning of Section 15 of the Securities Act, against all losses,
claims, damages, liabilities (or proceedings in respect thereof) and
expenses (under the Securities Act or common law or otherwise), joint or
several, caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities (or proceedings in respect thereof) or
expenses are caused by any untrue statement or alleged untrue statement
contained in or by any omission or alleged omission from information
respecting such Underwriters or the participating Qualified Holders
furnished in writing to the Company by such Underwriters or the
participating Qualified Holders expressly for use therein. In connection
with any Registration Statement with respect to Registrable Securities held
by a Qualified Holder, each such Qualified Holder will furnish to the
Company in writing such information respecting such Qualified Holder as
shall be reasonably requested by the Company for use in any such
Registration Statement or Prospectus and will indemnify, to the extent
permitted by law, the Company, its officers and directors and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses resulting from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated in the
Registration Statement or Prospectus or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement
is contained in or such omission is from information so furnished in
writing by such Qualified Holder expressly for use therein. If the
offering pursuant to any such Registration Statement is made through
Underwriters, each such Qualified Holder agrees to enter into an
underwriting agreement in customary form with such Underwriters, and to
indemnify such Underwriters, their officers and directors, if any, and each
Person, if any, who controls such Underwriters within the meaning of
Section 15 of the Securities Act to the same extent as hereinbefore
provided with respect to indemnification by such Qualified Holder of the
Company. Any Person entitled to indemnification under the provisions of
this Section 2.1(e) shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such claim, permit such
-10-
<PAGE>
indemnifying party to assume the defense of such claim, with counsel
reasonably satisfactory to the indemnified party; and if such defense is so
assumed, such indemnifying party shall not enter into any settlement
without the consent of the indemnified party if such settlement attributes
liability to the indemnified party and such indemnifying party shall not be
subject to any liability for any such settlement made without its consent
(which consent shall not be unreasonably withheld); and any underwriting
agreement entered into with respect to any Registration Statement provided
for under this Section shall so provide. In the event an indemnifying party
shall not be entitled, or elects not, to assume the defense of a claim,
such indemnifying party shall not be obligated to pay the fees and expenses
of more than one counsel or firm of counsel for all parties indemnified by
such indemnifying party in respect of such claim, unless in the reasonable
judgment of any such indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties in
respect to such claim. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of a participating
Qualified Holder, its officers, directors or any Person, if any, who
controls such Qualified Holder as aforesaid, and shall survive the transfer
of such securities by such Qualified Holder.
If for any reason the foregoing indemnity is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages, liabilities or expenses
(x) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the indemnified
party on the other or (y) if the allocation provided by clause (x) above is
not permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other
but also the relative fault of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations.
Contributions required to be made by an Underwriter, if any, shall be
governed by the terms of the underwriting agreement. Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Certain Limitations on Registration Rights.
------------------------------------------
(i) In the case of an Underwritten Offering under a Shelf
Registration, if the Majority Holders determine to enter into an
underwriting agreement in connection therewith, or, in the case of a
Piggy-back Registration, if the Company or holders of securities
initially requesting or demanding such registration have determined to
enter into an underwriting agreement in connection therewith, all
Registrable Securities to be included in
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<PAGE>
such registration shall be subject to such underwriting agreement, and
no Person may participate in such registration unless such Person
agrees to sell such Person's securities on the basis provided in the
underwriting arrangements approved by the Company or such holders and
completes and/or executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other reasonable documents
which must be executed under the terms of such underwriting
arrangements.
(ii) Notwithstanding anything to the contrary in this Section
2.1, if the Company shall previously have received a request for
registration under this or any other registration rights agreement,
and if such previous registrations shall not have been withdrawn or
abandoned, the Company will not effect any registration of any of its
securities under the Securities Act (other than a registration on Form
S-4 or S-8 (or any similar form) or other publicly registered offering
pursuant to the Securities Act pertaining to the issuance of
securities under any benefit plan, employee compensation plan, or
employee or director stock purchase plan or in connection with an
offer of securities solely to existing security holders) whether or
not for sale for its own account, until a period of three months shall
have elapsed from the effective date of such previous registration;
and the Company shall so provide in any registration rights agreements
hereafter entered into with respect to any of its securities.
(g) Allocation of Securities Included in Registration Statement. In
-----------------------------------------------------------
the case of an Underwritten Offering, if the Company's managing Underwriter
shall advise the Company and the Qualified Holders in writing that the
inclusion in any registration pursuant to this Section of some or all of
the Registrable Securities sought to be registered by the holders
requesting such registration creates a substantial risk that the proceeds
or price per unit the Sellers (as defined below) will derive from such
registration will be reduced or that the number of securities to be
registered (including those sought to be registered at the instance of the
Company and any other party entitled to participate in such registration as
well as those sought to be registered by the Qualified Holders) is too
large a number to be reasonably sold, then the number of Registrable
Securities sought to be registered by each Seller shall be reduced pro rata
in proportion to the number of securities sought to be registered by all
Sellers to the extent necessary to reduce the number of securities to be
registered to the number recommended by the managing underwriter.
For purposes of this Section 2.1(g) the term "Seller" shall mean and
include the Company and each holder of securities (including, but not
limited to, Registrable Securities) entitled to participate in the subject
registration.
(h) Limitations on Sale or Distribution of Other Securities. Each
-------------------------------------------------------
holder of Registrable Securities shall be deemed to have agreed by the
inclusion of Registrable
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<PAGE>
Securities in a Registration Statement not to effect any public sale or
distribution, including (if requested by the Underwriter) any sale pursuant
to Rule 144 under the Securities Act, of any Registrable Securities, and to
use such holder's best efforts not to effect any public sale or
distribution of any other equity security of the Company or of any security
convertible into or exchangeable or exercisable for any equity security of
the Company (other than as part of such underwritten public offering)
within 7 days before or 90 days (or such other period to which the
Underwriters of such offering may consent) after the effective date of any
Registration Statement filed by the Company pursuant to this Article II or
other agreement providing for registration rights.
2.2 Rule 144. If the Company shall have filed a registration
--------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
Registration Statement pursuant to the requirements of the Securities Act, the
Company covenants that it will timely file the reports required to be filed by
it under the Securities Act or the Exchange Act (including but not limited to
the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(l) of Rule 144 adopted by the SEC under the Securities Act) and
the rules and regulations adopted by the SEC thereunder (or, if the Company is
not required to file such reports, will, upon the request of any Qualified
Holder, make publicly available such information), and will take such further
action as any Qualified Holder may reasonably request, all to the extent
required from time to time to enable such Qualified Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Qualified Holder, the
Company will deliver to such Qualified Holder a written statement as to whether
it has complied with such requirements.
ARTICLE III
MISCELLANEOUS
3.1 Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Majority Holders; provided, however, that no amendment, modification or
-------- -------
supplement or waiver or consent to the departure with respect to the provisions
of Sections 2.1(a) or 2.1(e) hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities.
3.2 Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective representatives, administrators, heirs, successors and assigns, as
applicable, including, without limitation and
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<PAGE>
without the need for an express assignment, subsequent Qualified Holders. If
any successor, assignee or transferee of any Qualified Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be entitled to receive the benefits hereof and shall be conclusively
deemed to have agreed to be bound by all of the terms and provisions hereof.
3.3 Notices. All notices and other communications provided for
-------
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
if to the Company, to:
Allin Communications Corporation
300 Greentree Commons
381 Mansfield Avenue
Pittsburgh, PA 15220
Attention: Richard W. Talarico
FAX: (708) 377-0907
if to a Qualified Holder, to:
the most recent address of such Qualified Holder on the books of
the Company
All such notices and communications shall be deemed to have been given or
made (i) when delivered by hand, (ii) two business days after being
deposited in the mail, postage prepaid, (iii) when telexed, answer-back
received or (iv) when telecopied, receipt acknowledged.
3.4 Descriptive Headings. The headings in this Agreement are for
--------------------
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
3.5 Severability. In the event that any one or more of the
------------
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of such provision, paragraph, word, clause, phrase or sentence in
every other respect and of the remaining provisions, paragraphs, words, clauses,
phrases or sentences hereof shall not be in any way impaired, it being intended
that all rights, powers and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
3.6 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one
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<PAGE>
and the same instrument, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
3.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware, without
regard to the conflicts of laws rules thereof.
[signatures appear on next page]
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<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
ALLIN COMMUNICATIONS CORPORATION
By:
-------------------------------
Title:
----------------------------
----------------------------------
William C. Kavan
----------------------------------
Mark Kottler
SUBSCRIBERS
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