STOCKHOLDER VOTING AGREEMENT
by and between
Red Cube International AG
and
Winter Harbor, L.L.C
dated as of September 11, 2000
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of September 11, 2000 (this
"Agreement"), by and between Winter Harbor, L.L.C., a Delaware limited liability
company ("Winter Harbor"), and Red Cube International AG, an Aktiengesellschaft
organized under the laws of Switzerland ("Red Cube").
WHEREAS, Winter Harbor and Red Cube have entered into a Securities
Purchase Agreement, dated August 30, 2000 (the "Securities Purchase Agreement"),
which provides, among other things, for the purchase by Red Cube of all
securities of I-Link Incorporated, a Florida corporation ("I-Link") held by
Winter Harbor and mentioned in Exhibit A to the Securities Purchase Agreement
(such securities, together with any additional securities of I-Link described in
Section 4, but excluding the First Closing Securities after the First Closing,
being referred to herein as the "Subject Securities");
WHEREAS, Winter Harbor is the holder of a certain number of shares of
certain series of preferred stock of I-Link and Red Cube is the holder of a
certain number of shares of the common stock of I-Link; and
WHEREAS, as a condition and inducement to their willingness to enter
into the Agreement, Red Cube has requested that Winter Harbor enter into
arrangements with respect to the voting rights of the Subject Securities (i)
during the period starting on the date hereof and until the First Closing Date
as such term is defined in the Securities Purchase Agreement, and (ii) from the
First Closing Date and thereafter, upon the terms and subject to the conditions
hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Voting Agreements. Until the First Closing Date and at any
time thereafter, if the irrevocable proxy granted to Red Cube under Section
5.6(a) of the Securities Purchase Agreement is determined to be invalid or
unenforceable in any respect, Winter Harbor shall, at any meeting of
stockholders of I-Link, however called, including any adjourned or postponed
meeting, and in any action by consent of the stockholders of I-Link or in any
other circumstances upon which a vote, consent or other approval is sought, vote
(or cause to be voted), or, if applicable, give consent or approval with respect
to, all of the Subject Securities that Winter Harbor has the right to vote in
respect of any proposal presented to the stockholders of I-Link (except for
proposals or matters that are solely concerned with the operational conduct of
the business of I-Link as such business has been conducted in its ordinary
course and consistent with past practices), only as and if directed by Red Cube.
In the event that Red Cube fails to direct Winter Harbor concerning a matter
upon which a vote, consent or approval is required, Winter Harbor shall abstain
from such vote, consent or approval except for the purposes of determining a
quorum with respect to such vote, consent or approval. Any such vote shall be
cast or consent shall be given for purposes of this Section 1 in accordance with
such procedures relating thereto as shall ensure that it is duly counted for
purposes of
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determining that a quorum is present and for purposes of recording in accordance
herewith the results of such vote or consent.
2. Covenants. From and after the date of this Agreement, except
as contemplated by the Securities Purchase Agreement, Winter Harbor agrees not
to, and to use its commercially reasonable efforts to cause any investment
banker, attorney or other adviser or representative of Winter Harbor not to, (i)
sell, transfer, exchange, pledge, assign, hypothecate, encumber, tender or
otherwise dispose of, or enter into any contract, option or other arrangement
with respect to the sale, transfer, exchange, pledge, assignment, hypothecation,
encumbrance, tender or other disposition of the Subject Securities; (ii) acquire
any additional shares of common stock of I-Link shares or securities convertible
into or exercisable for such shares or exercise; (iii) convert or exchange any
of the Subject Securities without the prior written consent of Red Cube; (iv)
grant any proxies with respect to any Subject Securities, deposit any such
Subject Securities into a voting trust or enter into a voting or option
agreement with respect to any of such Subject Securities; (v) directly or
indirectly, solicit or encourage inquiries or proposals with respect to, or
engage in any negotiations concerning, or provide any confidential information
to, or have any discussions with, any person (other than Red Cube, its
affiliates, and their respective agents and representatives) relating to, any
sale, pledge, encumbrance or other disposition of the Subject Securities or any
merger or sale of securities or substantial assets of, or any similar
transaction involving, I-Link and Winter Harbor; or (vi) take any action which
would make any representation or warranty of Winter Harbor herein untrue or
incorrect. As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
3. Representations and Warranties of Winter Harbor. Winter
Harbor represents and warrants to Red Cube that:
(a) Capacity; No Violations. Winter Harbor has the necessary
limited liability company authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Winter Harbor, and constitutes a valid and binding
agreement of Winter Harbor enforceable against Winter Harbor in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and such execution and delivery and
performance by Winter Harbor of this Agreement will not (i) constitute a breach
or violation of, or a default under, or cause or allow the acceleration or
creation of a Lien, as defined below (with or without the giving of notice,
passage of time or both) pursuant to, any law, rule or regulation or any
judgment, decree, order, governmental or non-governmental permit or license, or
any material contract of Winter Harbor or to which Winter Harbor or its
properties is subject or bound, (ii) constitute a breach or violation of, or a
default under, the certificate of formation, the limited liability company
agreement or other organizational documents or agreements of Winter Harbor, or
(iii) require any consent or approval under any such law, rule, regulation,
judgment, decree,
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order, governmental or non-governmental permit or license or the consent or
approval of any other party to any material contract of Winter Harbor or to
which Winter Harbor or its properties is subject or bound. In this Agreement,
"Lien" shall mean any lien, pledge, security interest, claim, third party right
or other encumbrance.
(b) Subject Securities. Winter Harbor is the record holder of,
has sole voting and dispositive power over, and has good and valid title to, the
Subject Securities free and clear of all Liens (other than any Lien created by
this Agreement or the Securities Purchase Agreement) and, except as provided by
this Agreement, there are no options or rights to acquire or proxies, voting
trusts or voting agreements relating to the Subject Securities to which Winter
Harbor is a party, other than the Shareholders Agreement dated as of October 10,
1997, among Medcross Inc. (the predecessor of I-Link), Winter Harbor and certain
shareholders of Medcross Inc., and the Securities Purchase Agreement. As of the
date hereof, the Subject Securities and other securities of I-Link that are
issuable upon the exercise, conversion or exchange of the Subject Securities are
the only securities of any class of capital stock of I-Link which Winter Harbor
has the right, power or authority (sole or shared) to sell or vote, and Winter
Harbor does not have any right to acquire, nor is it the beneficial owner of,
any other shares of any class of capital stock of I-Link or any securities
convertible into or exchangeable or exercisable for any shares of any class of
capital stock of I-Link.
4. Adjustments; Additional Shares. In the event of any stock
dividend, stock split, reverse stock split, stock distribution, spin-off
recapitalization, reclassification, subdivision, combination or exchange of
securities on, of or affecting the Subject Securities, or other similar
transactions, such securities held by Winter Harbor immediately following the
effectiveness of these events shall become Subject Securities hereunder.
5. Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement.
6. Specific Performance. Winter Harbor acknowledges and agrees
that if it fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to Red Cube for which
money damages would not be an adequate remedy. In such event, Winter Harbor
agrees that Red Cube shall have the right, in addition to any other rights it
may have, to specific performance of this Agreement. Accordingly, if Red Cube
should institute an action or proceeding seeking specific enforcement of the
provisions hereof, Winter Harbor hereby waives the claim or defense that Red
Cube has an adequate remedy at law and hereby agrees not to assert in any such
action or proceeding the claim or defense that such a remedy at law exists.
7. Notices. All notices or other communications under this
Agreement shall be delivered in accordance with Section 10.2 of the Securities
Purchase Agreement.
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8. Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors and assigns; provided, however, that such successor in interest or
assigns shall agree to be bound by the provisions of this Agreement. Nothing in
this Agreement, express or implied, is intended to confer upon any Person other
than Red Cube, Winter Harbor or their successors or assigns, any rights or
remedies under or by reason of this Agreement.
9. Entire Agreement; Amendments. This Agreement and the
Securities Purchase Agreement, together, contain the entire agreement between
Winter Harbor and Red Cube with respect to the subject matter hereof and
supersede all prior and all contemporaneous agreements and understandings, oral
or written, with respect to such transactions. This Agreement may not be
changed, amended or modified orally, but may be changed only by an agreement in
writing signed by the party against whom any waiver, change, amendment,
modification or discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party hereto, except that Red Cube may assign its rights and
obligations hereunder to any Affiliate (as such term is defined in the
Securities Purchase Agreement) of Red Cube to which Red Cube assigns its rights
under the Securities Purchase Agreement.
11. Cooperation. If any notices, approvals or filings are
required with any regulatory commission or agency in order to allow the parties
hereto to effectively carry out the transactions contemplated by this Agreement,
Winter Harbor and Red Cube shall cooperate in making such notices or filings or
in obtaining such approvals.
12. Headings. The section headings herein are for convenience
only and shall not affect the construction of this Agreement.
13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (regardless of the
laws that might otherwise govern under applicable Florida principles of
conflicts of law).
15. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability or the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the
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validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
16. Termination. This Agreement shall terminate on the earliest
of (i) the Second Closing Date, as such term is defined in the Securities
Purchase Agreement; (ii) the fifth business day following the date on which
ordinary shares of Red Cube commence trading on the SWX New Market; (iii) April
2, 2000; and (iv) the termination of the Securities Purchase Agreement.
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IN WITNESS WHEREOF, Winter Harbor and Red Cube have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
Winter Harbor, L.L.C.
By: First Media, L.P., its member
By: First Media Corporation, its
general partner
/s/ Ralph Hardy Jr.
Name: Ralph Hardy Jr.
Title: Secretary and Principal Executive Officer
Red Cube International AG
By: /s/ Niklaus F. Zenger
Name: Niklaus F. Zenger
Title: Chief Executive Officer
