-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VHp4qddmikdXMoWLDkb8MbW9wyl056MWCGkUFOeqXuqWt3YgeULNdOPORmCSyCW9 rJMLTXLFV7QsUbSbBwICUw== 0000950123-01-509117.txt : 20020412 0000950123-01-509117.hdr.sgml : 20020412 ACCESSION NUMBER: 0000950123-01-509117 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20011210 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EASYLINK SERVICES CORP CENTRAL INDEX KEY: 0001081661 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 133787073 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56949 FILM NUMBER: 1810144 BUSINESS ADDRESS: STREET 1: 399 THORNALL STREET STREET 2: 6TH FLOOR CITY: EDISON STATE: NJ ZIP: 08837 BUSINESS PHONE: 7329062000 MAIL ADDRESS: STREET 1: 399 THORNALL STREET STREET 2: 6TH FLOOR CITY: EDISON STATE: NJ ZIP: 08837 FORMER COMPANY: FORMER CONFORMED NAME: MAIL COM INC DATE OF NAME CHANGE: 19990311 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CLARK ESTATES INC CENTRAL INDEX KEY: 0000927907 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 135524538 STATE OF INCORPORATION: NY FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE ROCKEFELLER PLAZA STREET 2: 31ST FLOOR CITY: NYW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2129776900 MAIL ADDRESS: STREET 1: ONE ROCKEFELLER PLAZA STREET 2: 31ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 SC 13D/A 1 y55636a2sc13da.txt AMENDMENT NO. 2 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (AMENDMENT NO. 2)* EASYLINK SERVICES CORPORATION ----------------------------- (Name of Issuer) CLASS A COMMON STOCK, $.01 PAR VALUE PER SHARE ---------------------------------------------- (Title of Class of Securities) 27784T101 -------------- (CUSIP Number) Kevin S. Moore President The Clark Estates, Inc. One Rockefeller Plaza, 31st Floor New York, New York 10020 Tel. No.: (212) 977-6900 With a copy to: Robin L. Spear, Esq. Pillsbury Winthrop LLP One Battery Park Plaza New York, New York 10004-1490 Tel. No.: (212) 858-1000 -------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 27, 2001 ---------------------- (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 that is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-l(e), 13d-1(f) or 13d-1(g), check the following box: |_| * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). AMENDMENT NO. 2 TO SCHEDULE 13D ================================================================================================================= CUSIP NO. 27784T101 - ----------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON THE CLARK ESTATES, INC. 13-5524538 - ----------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ----------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ----------------------------------------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ----------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK - ----------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 13,068,057* (SEE ITEM 5.) ---------------------------------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 0 ---------------------------------------------------------------------------------------- EACH REPORTING PERSON 9 SOLE DISPOSITIVE POWER WITH 13,068,057* (SEE ITEM 5.) ---------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ----------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,068,057* (SEE ITEM 5.) - ----------------------------------------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.7%* (SEE ITEM 5.) - ----------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO =================================================================================================================
- ----------------------- * Excludes shares that may be issued as Adjustment Shares (as hereinafter defined and as defined in Amendment No. 1 to the initial filing on Schedule 13D) and shares to be issued in payment of interest on the Notes (as defined in the initial filing on Schedule 13D) but includes shares issuable upon conversion of the Notes. (See Item 3 herein, Item 3 of Amendment No. 1 to the initial filing on Schedule 13D and Item 3 of the initial filing on Schedule 13D.) 2 AMENDMENT NO. 2 TO SCHEDULE 13D This Amendment No. 2 is filed in accordance with Rule 13d-2 of the Securities Exchange Act of 1934, as amended, by the Reporting Person and refers only to information which has materially changed since the filing of Amendment No. 1 to Schedule 13D by the Reporting Person on March 26, 2001. The items identified below, or the particular paragraph of such items which are identified below, are amended to add the information as set forth below. Capitalized terms not otherwise defined herein have the meanings ascribed to them in the original Schedule 13D. Item 1. Security and Issuer. This Statement relates to shares of Class A Common Stock, $0.01 par value per share (the "Class A Common Stock"), of EasyLink Services Corporation (formerly Mail.com, Inc.), a Delaware corporation (the "Issuer"). The address of the Issuer's principal executive offices is 399 Thornall Street, 6th Floor, Edison, New Jersey 08837. Item 3. Source and Amount of Funds or Other Consideration. On November 27, 2001, Federal Partners, L.P. ("Federal Partners") purchased from the Issuer pursuant to a Common Stock Purchase Agreement (the "Common Stock Purchase Agreement") 2,503,682 shares of Class A Common Stock (the "Shares") for the purchase price of $0.679 per share. Federal Partners is a limited partnership, the general partner of which is Ninth Floor Corporation. The Reporting Person provides management and administrative services to Federal Partners. An additional number of shares of Class A Common Stock will be issued to Federal Partners (the "Adjustment Shares") within five days after December 31, 2001, such that Federal 3 Partners' effective purchase price per share of the Shares shall be equal to $0.40 per share if the average of the closing prices of the Class A Common Stock on the principal securities exchange on which the Class A Common Stock is then traded is less than $1.60 per share for the ten consecutive trading days immediately prior to January 1, 2002. The number and kind of Adjustment Shares, the adjustment price, and the $1.60 per share price set forth in the preceding sentence are all subject to anti-dilution adjustments. The purchase price for the Shares was provided by funds available for investment by accounts for which the Reporting Person provides management and administrative services. Item 4. Purpose of Transaction. The purpose of the acquisition of the Shares was for investment. The Reporting Person currently does not have any plans or proposals of the type set forth in Paragraphs (a) through (j) of Item 4 of Schedule 13D, except that the Reporting Person may acquire additional shares of the Class A Common Stock in open market transactions for investment purposes. Any decision of the Reporting Person either to purchase additional shares of the Class A Common Stock or to dispose of any of such shares will take into account various factors, including general economic and stock market conditions. Item 5. Interest in Securities of the Issuer. (a) The 13,038,107 shares of Class A Common Stock, including the 5,000,000 shares issuable upon conversion of the Notes but excluding shares to be issued in payment of interest on the Notes and any shares that may be issued as Adjustment Shares, held by the accounts referred to in Item 3 above and the initial filing on Schedule 13D, together with the 29,950 shares of Class A Common Stock of the Issuer held by executive officers of the Reporting Person, constitute approximately 10.7% of the outstanding shares of Class A Common Stock and Class B 4 Common Stock of the Issuer (based upon an aggregate of 107,601,130 outstanding shares of the Class A Common Stock and 10,000,000 outstanding shares of Class B Common Stock (which are convertible into 10,000,000 shares of Class A Common Stock) as of November 27, 2001 as set forth in the Common Stock Purchase Agreement, and after giving effect to conversion of the Notes at the initial conversion price). (b) The Reporting Person and each of the executive officers referred to above has the sole power to vote or to direct the vote and to dispose of or direct the disposition of their respective shares of the Class A Common Stock. (c) Except as described in Item 3 above, neither the Reporting Person, nor any of the accounts referred to above, nor (to the best knowledge of the Reporting Person) any of its executive officers or directors, has effected any transaction in the Class A Common Stock during the past sixty days. (d) Each of the accounts referred to in Item 3 and each of the executive officers referred to above has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, their respective shares of the Class A Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Except for the Common Stock Purchase Agreement and the Registration Rights Agreement (referred to below) and except as set forth in the Reporting Person's initial filing on Schedule 13D and Amendment No. 1 thereto, neither the Reporting Person nor (to the best knowledge of the Reporting Person) any of its executive officers or directors, has any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of such 5 securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Pursuant to a Registration Rights Agreement, the Issuer has agreed to prepare and file within 45 days of November 27, 2001 a registration statement on Form S-3, or such other form that the Issuer may then use for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act of 1933, covering the Shares and the Adjustment Shares. Pursuant to the Registration Rights Agreement, the Issuer also has granted piggyback resale registration rights to Federal Partners with respect to the Shares and the Adjustment Shares. Item 7. Material to be Filed as Exhibits. The Registration Rights Agreement dated as of November 27, 2001 between the Issuer and Federal Partners is filed hereto as Exhibit 1. 6 SIGNATURE 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. Dated: December 7, 2001 THE CLARK ESTATES, INC. By: s/ KEVIN S. MOORE -------------------------------- Name: Kevin S. Moore Title: President 7 EX-99.1 3 y55636a2ex99-1.txt REGISTRATION RIGHTS AGREEMENT Exhibit 1 EASYLINK SERVICES CORPORATION REGISTRATION RIGHTS AGREEMENT November 27, 2001 EASYLINK SERVICES CORPORATION REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement is made as of November 27, 2001 (the "Agreement") by and among EasyLink Services Corporation, a Delaware corporation ("Easylink"), and each of the investors listed on the signature pages hereof (the "Investors"). RECITALS A. EasyLink desires to sell and issue to the Investors and the Investors desire to purchase from EasyLink shares of Class A common stock of EasyLink pursuant to a Common Stock Purchase Agreement of even date herewith (consisting of Shares and Adjustment Shares under such agreement; collectively herein the "Shares") (the "Common Stock Purchase Agreement"). B. In order to induce the Investors to purchase Shares pursuant to the Common Stock Purchase Agreement, EasyLink desires to grant to the holders of Shares (the "Holders") certain registration rights with respect to all of the Shares, all on the terms and conditions set forth herein. In consideration of the foregoing and the promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the following respective meanings: "Act" means the U.S. Securities Act of 1933, as amended from time to time. "Agreement" means this Agreement, as the same may be amended or supplemented from time to time in accordance with the terms hereof. "Common Stock" means the shares of Class A common stock, par value $.01 per share, that EasyLink is authorized to issue by way of EasyLink's Amended and Restated Certificate of Incorporation, and amendments thereto. "Holders" has the meaning set forth in the preface above. "Indemnified Party" and "Indemnifying Party" have the meanings set forth in SECTION 2.07(c) of this Agreement. 2 "Mandatory Registration" has the meaning set forth in SECTION 2.01(a) of this Agreement. "Piggyback Registration" has the meaning set forth in Section 2.02 of this Agreement. "Registrable Securities" means (i) the Shares, (ii) any Class A common stock of EasyLink issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of the securities referenced in clause (i) and this clause (ii), and (iii) any other shares of capital stock of EasyLink into or for which the securities referenced in clauses (i) and (ii) may be converted into or exchanged pursuant to a recapitalization or reclassification of EasyLink's capital stock; provided, however, that Registrable Securities shall not include any securities that (w) have been registered and sold pursuant to the Act, (x) have been distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Act, (y) are eligible for public resale under Rule 144(k) under the Securities Act or in accordance with the law governing any non-U.S. exchange where the Common Stock is publicly listed or (z) have been sold in a transaction exempt from registration under the Act so that all transfer restriction and restrictive legends with respect thereto are removed upon consummation of such sale. "Registration Expenses" means all expenses incident to EasyLink's performance of or compliance with this Agreement, including, without limitation, (i) all registration, filing, securities exchange listing, rating agency and National Association of Securities Dealers fees, (ii) all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws of all jurisdictions in which the securities are to be registered and any legal fees and expenses incurred in connection with the blue sky qualification of the Registrable Securities and the determination of their eligibility for investment under the laws of all such jurisdictions, (iii) all word processing, duplicating, printing, messenger and delivery expenses, (iv) the fees and disbursements of counsel for EasyLink and of its independent public accountants, including, without limitation, the expenses of any special audits or "cold comfort" letter required by or incident to such performance and compliance, (v) in connection with any firm commitment, underwritten offering, the reasonable fees and disbursements of any one counsel or one accounting firm retained by the Holders of the Registrable Securities being registered, not to exceed $15,000 in the aggregate for all of such fees and disbursements, (vi) premiums and other costs of policies of insurance of EasyLink against liabilities arising out of the public offering of the Registrable Securities being registered to the extent EasyLink elects to obtain such insurance, and (vii) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities (but excluding underwriting discounts and commissions), if any, relating to the Registrable Securities. "SEC" means the U.S. Securities and Exchange Commission. Other capitalized terms that are used herein that are not defined herein shall have the respective meanings ascribed to such terms in the Common Stock Purchase Agreement. 3 ARTICLE II REGISTRATION RIGHTS EasyLink and the Investors covenant and agree as follows: SECTION 2.01 Mandatory Registration. (a) Registration Obligation. Within 45 days from the Closing of the Common Stock Purchase Agreement, EasyLink agrees to prepare and file a registration statement on Form S-3 or such other form that EasyLink may then use for an offering to be made on a continuous basis pursuant to Rule 415 (the "Registration Statement") covering all of the Registrable Securities and to use reasonable commercial efforts to cause the Registration Statement to become effective as soon as practicable thereafter (the "Mandatory Registration"); provided, however, in no event, however, shall EasyLink be required to file more than one registration statement unless the offering of Registrable Securities pursuant thereto is suspended, blocked by any stop order, injunction or other order of the SEC or any governmental agency or court, or withdrawn after the Mandatory Registration has become effective, in which event such Mandatory Registration will be deemed not to have been effected pursuant to this Section 2.01. SECTION 2.02 Piggyback Registration. (a) Right to Piggyback. If EasyLink proposes to register any of its securities under the Act in connection with a firm commitment underwritten offering (other than registrations solely for the registration of shares in connection with an employee benefit plan or a merger or consolidation and other than pursuant to Section 2.01) at any time before all of the Registrable Securities are eligible for public resale by the Holders pursuant to Rule 144(k) under the Act, whether or not for sale for EasyLink's own account, and the registration form to be used may be used for the registration of Registrable Securities (a "Piggyback Registration"), EasyLink will at each such time give prompt written notice to all Holders of its intention to do so and of such Holders' rights under this Section 2.02. Upon the written request of any such 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 Holder and the intended method of distribution thereof), EasyLink will use its reasonable commercial efforts to effect the registration under the Act of all Registrable Securities which EasyLink has been so requested to register by the Holders thereof, to the extent required to permit the disposition (in accordance with such intended methods thereof) of the Registrable Securities so to be registered, provided that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, EasyLink shall determine for any reason not to register or to delay registration of such securities, EasyLink may, at its election, give written notice of such determination to each Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the registration expenses under Section 2.05 in connection therewith), without prejudice, however, to the rights of any Holder entitled to do so to request that such registration be effected as a Demand Registration under Section 2.01, and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other securities. No registration 4 effected under this Section 2.02 shall relieve EasyLink of its obligation to effect any Demand Registration upon request under Section 2.01. (b) Priority in Piggyback Registrations. If the managing underwriter of a Piggyback Registration advises EasyLink in writing that, in its opinion, the number of shares of Registrable Securities requested or proposed to be included in such offering exceeds the number that can be sold in such offering without materially affecting the offering price of any such securities, EasyLink shall include in such registration (i) first, to the extent that securities of EasyLink are included in such registration, (A) such securities proposed to be sold by EasyLink and (B) the securities of EasyLink held by persons who have preferential registration rights to include such securities in such Piggyback Registration in accordance with the agreements with respect to such registration rights between EasyLink and such holders; and (ii) second, to the extent that such Registrable Securities may be included in such registration without materially affecting the offering price of the securities referred to in clause (i), in the opinion of such managing underwriter, the Registrable Securities requested by the Holders to be included in such Piggyback Registration pursuant to Section 2.02(a) and any other securities of EasyLink held by persons other than the Holders having rights to participate in such Piggyback Registration that are non-preferential to the Holders of the Registrable Securities, pro rata among all such holders on the basis of the total number of securities of EasyLink, including Registrable Securities, requested by each such holder to be included therein. (c) Selection of Underwriters. EasyLink shall select the investment banker(s) and manager(s) for the offering. (d) Underwritten Piggyback Registrations. If EasyLink at any time proposes to register any of its securities under the Act as to which rights under this Section 2.02 have been exercised and such securities are to be distributed by or through one or more underwriters, EasyLink will, if requested by any Holder as provided in Section 2.02(a) and subject to the provisions of Section 2.02 (a) and (b), use its reasonable commercial efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such Holder among the Securities to be distributed by such underwriters. Such Holders of the Registrable Securities to be distributed by such underwriters shall be parties to the underwriting agreement between EasyLink and such underwriters and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, EasyLink to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such Holders. Any such Holder shall not be required to make any representations or warranties to or agreements with EasyLink or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder's title to Registrable Securities and such Holder's intended method of distribution and any other representation required by law. Section 2.03 Obligations of EasyLink. In furtherance of its obligations under Section 2.01 OR 2.02 to use its commercially reasonable efforts to effect the registration of the Registrable Securities, EasyLink shall, as expeditiously as reasonably possible, 5 (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and keep such registration statement effective until (i) in the case of a Demand Registration, the time when all Registrable Securities are eligible for sale by the Holders pursuant to Rule 144(k) and (ii) in the case of a Piggyback Registration, until 90 days after the effectiveness of such registration statement; (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration until the earlier of the time periods specified in Section 2.03(a) and such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Holders set forth in such registration statement; (c) Furnish to the Holders such numbers of copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits) and prospectus, including any preliminary prospectus, in conformity with the requirements of the Act, and such other documents as the Holders may reasonably request in order to facilitate the disposition of the Registrable Securities; (d) Use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as each Holder thereof shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the securities owned by such Holder, except that EasyLink shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 2.03(d) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; (e) Use its reasonable commercial efforts to (i) obtain the withdrawal of any order suspending the effectiveness of such registration statement or sales thereunder at the earliest possible time and (ii) cause all 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 Holders thereof to consummate the disposition of such Registrable Securities; (f) In connection with any firm commitment underwritten offering, furnish to each Holder a signed counterpart, addressed to such Holder (and the underwriters, if any) of (i) an opinion of counsel for EasyLink dated the date of the closing under the underwriting agreement, reasonably satisfactory in form and substance to such underwriter, and (ii) a "comfort" letter, dated the effective date of such registration statement (and dated the date of the closing under the underwriting 6 agreement), signed by the independent public accountants who have certified EasyLink's financial statements included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities; (g) Notify in writing each Holder, at any time when a prospectus relating thereto is required to be delivered under the Act, (a) upon discovery that, or upon the happening of any event as a result of which, 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 under which they were made, and (b) of any request for any amendment of or supplement to any registration statement or other document relating to such offering promptly after receipt of such request from the SEC or any other regulatory body or other body having jurisdiction and, in either case, at the request of any such Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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 under which they were made; (h) Otherwise comply with all applicable federal and state securities laws and rules and regulations of the SEC, and make available to the Holders, as soon as reasonably practicable, an earning statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act, and will furnish to each Holder draft and final versions of each registration statement and prospectus used in connection therewith prior to the filing thereof, and any amendment or supplement to such registration statement or prospectus and shall not file any thereof to which any Holder shall have reasonably objected on the grounds that such registration statement, prospectus, amendment or supplement does not comply in all material respects with the requirements of the Act or the rules or regulations thereunder; (i) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; and (j) Use its reasonable commercial efforts to list all Registrable Securities covered by such registration statement on each securities exchange and inter-dealer quotation system on which similar securities issued by EasyLink are then listed. EasyLink may require each Holder as to which any registration is being effected to furnish EasyLink such information regarding such Holder and the distribution of such securities as EasyLink may from time to time reasonably request in writing. 7 Section 2.04 Furnish Information. It shall be a condition precedent to the obligations of EasyLink to take any action pursuant to Article 2 that the Holders shall furnish to EasyLink such information regarding such Holders, the Registrable Securities held by such participating Holders and the intended method of disposition thereof as EasyLink or its appointed agents shall reasonably request and as shall be required in connection with the action to be taken by EasyLink. Section 2.05 Registration Expenses. In the case of any registration effected pursuant to Section 2.01 OR 2.02, EasyLink shall bear all Registration Expenses; provided, however, that the Holders shall bear the fees and costs of its own counsel (other than to the extent provided in the definition of "Registration Expenses" in connection with a firm commitment, underwritten offering) and all brokers' discounts and commissions with respect to the Registrable Securities sold by such Person. Section 2.06 Use of Prospectus. Each Holder agrees that if EasyLink notifies the Holder in writing of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, the Holder will discontinue immediately its disposition of securities pursuant to the registration statement until the Holder receives copies of an amended or supplemented prospectus, and if so directed by EasyLink, will deliver to EasyLink all copies then in Holder's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. Section 2.07 Indemnification. If any Registrable Securities are included in a registration statement pursuant to Section 2.01 OR 2.02, then, (a) EasyLink shall indemnify and hold harmless the Holders, agents for and officers and directors of the Holders, any underwriter of the Registrable Securities, and each Person, if any, who controls any such Person within the meaning of the Act, against any losses, claims, damages or liabilities, joint or several (or actions in respect thereof), to which they may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained in the registration statement, or any amendments or supplements to the registration statement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or any violation by EasyLink of any rule or regulation promulgated under the Act or any state securities law or rule or regulation applicable to EasyLink, and will reimburse the Holders, the agents for, and officers and directors of the Holders, any underwriter of the Registrable Securities, or any such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that EasyLink shall not be liable to any Holder in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission based upon and in conformity with information furnished to EasyLink in writing by such Holder. 8 (b) Each Holder shall indemnify and hold harmless EasyLink, each of its directors and each of its officers who have signed such registration statement against any losses, claims, damages or liabilities to which EasyLink or any such director or officer may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained in the registration statement or any amendments or supplements to the registration statement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement, preliminary prospectus, or amendments or supplement thereto, in reliance upon and in conformity with information furnished by the Holder in writing expressly for the purpose of inclusion in such registration statement, preliminary prospectus or amendments or supplements, and the Holders will reimburse any legal or other expenses actually and reasonably incurred by EasyLink or any such director, officer or controlling Person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, that the Holder's liability under this SECTION 2.06(b) shall not exceed the amount of the gross proceeds of the offering of the Holder's Registrable Securities included therein. (c) Each party entitled to indemnification (the "Indemnified Party") shall give notice to the party required to provide indemnification ("Indemnifying Party") promptly after such Indemnified Party has knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party (at its expense) to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate in such defense at such party's expense; provided, further, that the failure by any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2.06, except to the extent that the failure results in an omission of actual notice to the Indemnifying Party and such Indemnifying Party is materially damaged as a result of the failure to give notice. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. Section 2.08 Contribution. (a) If the indemnification provided for in Section 2.07 is unavailable to the Indemnified Party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other in connection with the statement or omission which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be 9 determined by reference to, among other things, whether the untrue statement (or alleged untrue statement) of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder agree that it would not be just and equitable if contribution pursuant to this Section 2.08 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in this Article 2 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. (b) Notwithstanding anything to the contrary contained herein, the obligation of each Holder to contribute pursuant to this SECTION 2.08 is several and not joint and no selling Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of such selling Holder were offered to the public exceeds the amount of any damages which such selling Holder has otherwise been required to pay by reason of such untrue statement (or alleged untrue statement) or omission (or alleged omission). (c) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Section 2.09 Transfer of Registration Rights. The registration rights of the Investor under this Article 2 may be assigned and transferred (i) by each Holder to any Affiliate of the Holder to whom any of the Shares owned by the Holder are transferred, and (ii) by the Holder to any transferee who acquires a majority of the Registrable Securities (adjusted to reflect subsequent stock splits, combinations, stock dividends and recapitalizations) initially issued to such Holder; provided, however, that EasyLink is given written notice by the Holder at the time of such assignment and transfer stating the name and address of the transferee and identifying the securities with respect to which the rights under this Article 2 are being assigned and transferred. For the purposes of this Section 2.09, a change in control of an Affiliate of the Holder holding shares entitling such Affiliate to the registration rights hereunder, such that such Affiliate is subsequent to such change of control no longer an Affiliate of the Holder, shall be deemed an attempted transfer of the registration rights hereunder and such former Affiliate of the Holder shall not be entitled to such registration rights except to the extent such transfer would be permitted under clause (ii) above. ARTICLE III MISCELLANEOUS Section 3.01 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto (including permitted transferees of any shares of 10 Registrable Securities). Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liability under or by reason of this Agreement, except as expressly provided in this Agreement. Section 3.02 Notices. All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given, and shall in any event be deemed to be given upon receipt or, if earlier, (a) five (5) days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand or transmitted via facsimile (confirmed by letter sent by first class mail, postage prepaid with the U.S. Postal Service or other applicable postal service), or (c) one business day after the business day of deposit with Federal Express or similar reputable, international overnight courier, freight prepaid. Such notices, demands and other communications shall be sent to EasyLink at the address set forth below and to any Holder of Registrable Securities at such address set forth on Schedule A to the Common Stock Purchase Agreement or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. The address for EasyLink is: EasyLink Services Corporation 399 Thornall Street Edison, NJ 08837 U.S.A. Attention: Thomas Murawski, Chief Executive Officer Facsimile No.: 732-906-1113 with a copy at the same address to: David W. Ambrosia, Esq. or at such other address as a party may designate by ten (10) days advance written notice to the other party pursuant to the provisions above. Section 3.03 Governing Law; Forum and Consent to Jurisdiction. (a) Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State. (b) Submission to Jurisdiction; Service of Process. (i) EasyLink and the Holders agree that any action or proceeding brought by the Holders in connection with this Agreement may be brought (and any action or proceeding brought by EasyLink against the Holders in connection herewith shall exclusively be brought) in the courts of the State of New York sitting in the Borough of Manhattan or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, EasyLink and the Holders hereby irrevocably waive any objection, including, without limitation, any objection to 11 the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any such action or proceeding by EasyLink or the Holders in such non-exclusive jurisdictions. (ii) EasyLink hereby irrevocably appoint CT Corporation System (the "Process Agent"), with an office on the date hereof at 1633 Broadway, New York, NY 10019, United States of America, as their agent to receive on their behalf service of copies of the summons and complaint and any other process that may be served in any such action or proceeding. EasyLink irrevocably consents to the service of process of any of the aforesaid courts in any such action or proceeding by the mailing of copies thereof by registered mail, postage prepaid, to it at its address set forth in this Agreement or to the Process Agent at its address specified above. Section 3.04 Waivers; Amendments. The waiver by the undersigned of any of the provisions of this Agreement shall not operate or be construed as a waiver of any subsequent breach. This Agreement may be amended, and any provision of this Agreement may be waived, only by a written amendment executed by (i) in the case of any amendment affecting the rights or obligations of EasyLink, EasyLink and (ii) in the case of any amendment affecting the rights or obligations of the Holder, Holders of a majority of the Registrable Securities then outstanding. Section 3.05 Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the construction and interpretation of this Agreement. Section 3.06 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. Section 3.07 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. This Agreement may contain more than one counterpart of the signature page and may be executed by the affixing of the signatures of each of the parties hereto to one of these counterpart signature pages. All of the counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. Section 3.08 Aggregation of Stock. All shares of Registrable Securities held or acquired by affiliated entities or persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. Section 3.09 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any of the provisions of this Agreement. 12 Section 3.10 Entire Agreement. This Agreement contains the entire agreement of the parties hereto. The parties hereto are not bound by any oral statements that are made outside of this Agreement. 13 WHEREAS, the parties hereto have executed this Agreement as of the date first above written. EASYLINK SERVICES CORPORATION By: s/ THOMAS MURAWSKI ------------------------------------- Thomas Murawski Chief Executive Officer INVESTORS: Name: Federal Partners, L.P. ----------------------------------- By: s/ STEPHEN M. DUFF ------------------------------------- Name: Stephen M. Duff Title (if applicable): Treasurer, Ninth Floor Corporation, General Partner 14 -----END PRIVACY-ENHANCED MESSAGE-----