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EXHIBIT 10.3
SUBSCRIPTION AGREEMENT
BETWEEN
INTERLAND, INC.
AND
NETWORK SOLUTIONS, INC.
DATED MARCH 15, 2000
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SUBSCRIPTION AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of March 15, 2000
by and between Interland, Inc., a Georgia corporation (the "Company") and
Network Solutions, Inc., a Delaware corporation ("Investor").
WHEREAS, the Company desires to issue and sell to the
Investor, and the Investor desires to subscribe for and acquire from the
Company, a substantial equity interest in the Company, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. DEFINITIONS
For all purposes of this Agreement, certain capitalized terms specified
in Exhibit A shall have the meanings set forth in that Exhibit A, except as
otherwise expressly provided.
2. SALE AND PURCHASE OF SHARES
2.1. SALE AND PURCHASE OF SHARES
On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, the Company
agrees to issue and sell to the Investor, and the Investor is subscribing for
and agrees to purchase from the Company, an aggregate of 689,655 shares of
Series A Convertible Participating Preferred Stock, no par value per share
("Series A Stock"), having the rights, preferences and other terms set forth on
Exhibit B hereto, at a price per share of Series A Stock of $5.80 for an
aggregate purchase price of $4,000,000. In addition, the Company hereby agrees
to issue to Investor a warrant to purchase 344,827 shares of Common Stock (the
"Warrant"), in form and substance of Exhibit C hereto, with an exercise price of
$5.80 per share.
2.2 CLOSING
The closing of the sale and purchase of the shares of Series A
Stock and the issuance of the Warrant shall take place simultaneously with the
Company's receipt by wire transfer of immediately available funds in the amount
of $4,000,000 from the Investor, as payment in full for the share of Series A
Stock subscribed for and being purchase by the Investor hereunder (the
"Closing"). At the Closing, the Company shall issue and deliver to the Investor
(i) a stock certificate or certificates in definitive form, registered in the
Investor's name, representing the Series A Stock, and (ii) the Warrant
registered in the Investor's name.
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2.3. SALE AND PURCHASE OF ADDITIONAL SHARES
At the Second Closing (as defined below), and on the terms and
subject to the conditions set forth in this Agreement, the Company shall issue,
sell and deliver to the Investor, and the Investor hereby subscribes for and
shall purchase and accept from the Company, the number of shares (the
"Additional Shares") of Common Stock of the Company equal to the number obtained
by dividing (A) $6,000,000 by (B) a number equal to the lesser of (i) the
midpoint of the expected range of offering prices reflected on the Company's
first filing with the Securities and Exchange Commission of a registration
statement covering the sale of its Common Stock and (ii) the actual price to the
public in such offering, and rounding the number obtained thereby to the nearest
whole number. In addition, the Company shall issue an additional warrant to the
Investor (the "Additional Warrant") at the Second Closing, in form and substance
of Exhibit C hereto, to purchase up to that number of shares of Common Stock
equal to 75% of the number of Additional Shares purchased by the Investor at the
Second Closing with an exercise price per share equal to the purchase price per
share paid by the Investor at the Second Closing to purchase the Additional
Shares.
2.4. PURCHASE PRICE AND PAYMENT FOR ADDITIONAL SHARES.
In consideration of the sale of the Additional Shares to the
Investor, the Investor shall pay to the Company at the Second Closing the
aggregate purchase price of $6,000,000.00 (the "Purchase Price"). The Purchase
Price shall be paid in cash by wire transfer of immediately available federal
funds to an account designated in writing by the Company.
2.5. SECOND CLOSING.
The closing of the transactions contemplated in Section 2.3
and Section 2.4 hereof (the "Second Closing") shall take place at the offices of
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
at 10:00 a.m., Atlanta time, on the day after the Company's registration
statement is declared
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effective and the offering made pursuant thereto is priced. The date on which
the Second Closing takes place is herein referred to as the "Second Closing
Date". At the Second Closing (i) the Company shall deliver to the Investor the
executed stock certificate representing the Additional Shares duly issued in the
name of the Investor and the Additional Warrant, and (ii) the Investor shall
deliver the Purchase Price to Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as specifically set forth in the Disclosure Schedule to the
Stock Purchase Agreement (as hereinafter defined) dated December 2, 1999 (the
"Disclosure Schedule"), the Company represents and warrants as of December 2,
1999 (which representation and warranty shall be deemed to include the
disclosure with respect thereto so specified in the Disclosure Schedule) to the
Investor each of the representations and warranties as set forth in SECTION 3 of
that certain Stock Purchase Agreement entered into as of December 2, 1999 by and
among the Company, Crest Communications Partners L.P., Crest Entrepreneurs Fund
L.P., Boulder Ventures III, L.P., and the other investors set forth on Exhibit C
thereto (the "Stock Purchase Agreement"), and each such representation and
warranty shall be incorporated by reference and made a part hereof; provided,
however, for purposes of this Agreement, each reference to the (i) "Purchase
Agreement" made therein shall mean this Agreement, and (ii) "Investors" made
therein shall refer to the Investor except those contained in SECTION 3.4 of the
Stock Purchase Agreement. The disclosures made in the Disclosure Schedule with
respect to a Section of this Purchase Agreement shall also be deemed disclosures
with respect to all other applicable Sections of this Agreement as of December
2, 1999. Investor hereby acknowledges and agrees that each of the
representations and warranties made by the Company herein and any and all
disclosures made by the Company in the Disclosure Memorandum shall be effective
as of December 2, 1999 and the Company shall be under no obligation to
supplement or otherwise update such information subsequent to December 2, 1999.
For purposes of this section, the term "Company" shall include any predecessor
entity and any and all Subsidiaries, unless the context requires otherwise.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company as follows:
4.1. ORGANIZATION AND STANDING
The Investor is duly organized, validly existing and in good
standing under the laws of the state or jurisdiction of its formation and has
the full and
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unrestricted power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby.
4.2. AUTHORIZATION
The execution, delivery and performance by the Investor of
this Agreement and all other Documents contemplated hereby, the fulfillment of
and the compliance with the respective terms and provisions hereof and thereof,
and the consummation by the Investor of the transactions contemplated hereby and
thereby have been duly authorized, and will not: (a) conflict with, or violate
any term or provision of the Investor's certificate or articles of
incorporation, its bylaws or other governing documents or (b) conflict with, or
result in any breach of, or constitute a default under, any Agreement to which
the Investor is a party or by which such Investor is bound. No other action is
necessary for the Investor to enter into this Agreement and all other Documents
contemplated hereby and to consummate the transactions contemplated hereby and
thereby.
4.3. BINDING OBLIGATION
Each Document to be executed by the Investor pursuant hereto,
when executed and delivered in accordance with the provisions hereof, shall be a
valid and binding obligation of the Investor, enforceable in accordance with its
terms, shall be in full force and effect and shall constitute a legal, valid and
binding obligation of, and shall be legally enforceable against, the Investor,
and, to the Investor's Knowledge, the other parties thereto (except as
enforceability may be limited or affected by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws and
equitable principles now or hereafter in effect and affecting the rights and
remedies of creditors generally).
4.4. NO REGISTRATION UNDER THE SECURITIES ACT
The Investor understands that the Series A Stock, the Warrant,
the Additional Shares, and the Additional Warrant to be purchased by it at the
Closing or the Second Closing pursuant to the terms of this Agreement, and the
Common Stock of the Company into which the Series A Stock, the Warrant and the
Additional Warrant are convertible, have not and will not be registered under
the Securities Act or any state securities laws and will be issued in reliance
upon exemptions contained in the Securities Act or interpretations thereof and
in the applicable state securities laws, and cannot be offered for sale, sold or
otherwise transferred unless the Series A Stock being acquired hereunder or the
Common Stock of the Company into which the Series A Stock, the Warrant and the
Additional Warrant are convertible subsequently are so registered or qualify for
exemption from registration under the Securities Act.
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4.5. ACQUISITION FOR INVESTMENT
The Series A Stock, the Warrant, the Additional Shares and the
Additional Warrant, and the Common Stock issuable upon conversion of the Series
A Stock, the Warrant and the Additional Warrant, respectively, are being
acquired under this Agreement by the Investor in good faith solely for its own
account, for investment and not with a view toward distribution within the
meaning of the Securities Act. The Series A Stock, the Warrant, the Additional
Shares and the Additional Warrant will not be offered for sale, sold or
otherwise transferred by the Investor without either registration or exemption
from registration under the Securities Act and any applicable state securities
laws (and the delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company, as reasonably requested by the Company).
4.6. EVALUATION OF MERITS AND RISKS OF INVESTMENT
The Investor has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of
its investment in the Series A Stock, the Warrant, the Additional Shares and the
Additional Warrant being acquired hereunder. The Investor is an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act. The
Investor understands and is able to bear any economic risks associated with such
investment (including, without limitation, the necessity of holding the Series A
Stock, the Warrant, the Additional Shares, and the Additional Warrant for an
indefinite period of time, inasmuch as the Series A Stock, the Warrant, the
Additional Shares, and the Additional Warrant have not been registered under the
Securities Act or any state securities laws).
4.7. ADDITIONAL INFORMATION
The Investor acknowledges that it has been afforded the
opportunity to ask questions and receive answers concerning the Company and to
obtain additional information that it has requested to verify the accuracy of
the information contained herein. Notwithstanding the foregoing, nothing
contained herein shall operate to modify or limit in any respect the
representations and warranties of the Company or to relieve it from any
obligations to the Investor for breach thereof or the making of misleading
statements of material fact or the omission of material facts in connection with
the transactions contemplated herein.
4.8. STOCK CERTIFICATE LEGEND
Each Investor acknowledges and agrees that each certificate
representing the Series A Stock, the Warrant, the Additional Shares and the
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Additional Warrant and the Common Stock issuable upon conversion thereof shall
bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Each Investor acknowledges and agrees that each certificate
representing the Series A Stock shall bear the following legend in addition to
the legend described above:
THE SHARES OF SERIES A CONVERTIBLE PARTICIPATING PREFERRED
STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN DESIGNATED
WITH A STATED VALUE PER SHARE OF $5.80 AND AN INITIAL
CONVERSION PRICE OF $5.80. CERTAIN SHARES OF SERIES A
CONVERTIBLE PARTICIPATING PREFERRED STOCK THAT HAVE BEEN
ISSUED PRIOR TO THE DATE OF THIS CERTIFICATE HAVE BEEN
DESIGNATED WITH A STATED VALUE PER SHARE OF $2.18 AND AN
INITIAL CONVERSION PRICE OF $2.18.
5. SURVIVAL OF REPRESENTATIONS
5.1. SURVIVAL OF REPRESENTATIONS
All representations, warranties, covenants, and other
Agreements made by the Investor herein or pursuant hereto shall also be deemed
made on and as of the Closing Date as though such representations, warranties,
covenants, indemnities and other Agreements were made on and as of such date,
and all such representations, warranties, covenants, indemnities and other
Agreements shall survive the Closing Date for a period of two years. All
representations, warranties, covenants, and other Agreements made by the Company
herein are made as of the date hereof and any representations and warranties
incorporated by reference from the Stock Purchase Agreement shall be deemed to
be made on and as of December 2, 1999, and all such representations, warranties,
covenants, indemnities and other Agreements shall survive the Closing Date for a
period of two years.
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6. MISCELLANEOUS
6.1. ADDITIONAL ACTIONS AND DOCUMENTS
After Closing, each of the parties hereto hereby agrees to
take or cause to be taken such further actions, to execute, deliver and file or
cause to be executed, delivered and filed such further Documents, and will
obtain such consents, as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms and conditions of this Agreement.
6.2. NO BROKERS
Each of the parties hereto represents and warrants to the
other parties (and to each of them) that such party has not engaged any broker,
finder or agent in connection with the transactions contemplated by this
Agreement and has not incurred (and will not incur) any unpaid liability to any
broker, finder or agent for any brokerage fees, finders' fees or commissions,
with respect to the transactions contemplated by this Agreement. Each party
agrees to indemnify, defend and hold harmless each of the other parties from and
against any and all claims asserted against such parties for any such fees or
commissions by any persons purporting to act or to have acted for or on behalf
of the indemnifying party.
6.3. JURY WAIVER
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN AN
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY
OF THE TRANSACTIONS OR AGREEMENTS CONTEMPLATED HEREBY.
6.4. PUBLICITY
Neither the Investor nor the Company shall issue any press
release or make any public disclosure regarding the transaction contemplated
hereby unless such press release or public disclosure is approved by those
parties expressly mentioned by name in the press release in advance.
Notwithstanding the foregoing, each of the parties hereto may, in documents
required to be filed by it with the SEC or other regulatory bodies, make such
statements with respect to the transactions contemplated hereby as each may be
advised by counsel as legally necessary or advisable and may make such
disclosure as it is advised by its counsel as required by law.
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6.5. EXPENSES
Subject to the provisions of this SECTION 6.5, each party
hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees and
disbursements.
6.6. ASSIGNMENT
The Investor shall have the right to assign its rights and
obligations under this Agreement, in whole or in part, to any Affiliate of
Investor or to designate any of its Affiliates (to the extent permitted by Law)
to receive directly the shares of Series A Stock to be purchased hereunder or to
exercise any of the rights of the Investor, or to perform its obligations,
provided that such assignee shall have been deemed to have made the
representations and warranties contained in Article 3 hereof. The Company shall
not assign its rights and obligations under this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
the Investor, and any such assignment contrary to the terms hereof shall be null
and void and of no force and effect. In no event shall the assignment by the
Company or the Investor of its rights or obligations under this Agreement,
whether before or after the Closing, release the Company or the Investor from
their respective liabilities and obligations hereunder.
6.7. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including the other Documents referred to
herein or Furnished pursuant hereto, constitutes the entire Agreement among the
parties hereto with respect to the transactions contemplated herein, and it
supersedes all prior oral or written Agreements, commitments or understandings
with respect to the matters provided for herein. No amendment or modification of
this Agreement shall be valid or binding unless set forth in writing and duly
executed and delivered by the Company and the Investor.
6.8. WAIVER
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
Documents Furnished in connection with or pursuant to this Agreement shall
impair any such right, power or privilege or be construed as a waiver of any
default or any acquiescence therein. No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right, power or privilege. No
waiver shall be valid against any party hereto unless made in writing and signed
by the party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
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6.9. SEVERABILITY
If any part of any provision of this Agreement or any other
agreement or document given pursuant to or in connection with this Agreement
shall be invalid or unenforceable in any respect, such part shall be ineffective
to the extent of such invalidity or unenforceability only, without in any way
affecting the remaining parts of such provision or the remaining provisions of
this Agreement.
6.10. GOVERNING LAW
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Georgia (excluding the
choice of law rules thereof).
6.11. NOTICES
All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telecopy addressed as follows:
(i) If to Investor:
Network Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(ii) If to the Company:
Interland, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request, or communication which shall be hand delivered,
sent, mailed or telecopied in the manner described above, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt, the delivery
receipt, or (with respect to a telecopy) the answerback or confirmation being
deemed conclusive, but not exclusive, evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
6.12. HEADINGS
Section headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
6.13. EXECUTION IN COUNTERPARTS
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required. It shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
6.14. LIMITATION ON BENEFITS
The covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns (including
specifically, without limitation, any third party transferees acquiring shares
of Series A Stock purchased by the Investor pursuant hereto).
6.15. BINDING EFFECT
Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, heirs, executors, administrators, legal
representatives and assigns.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or have
caused this Agreement to be duly executed on their behalf, as of the day and
year first hereinabove set forth.
COMPANY:
INTERLAND, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
INVESTOR:
NETWORK SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Its: Chief Executive Officer
----------------------------------------
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EXHIBIT A
TO SUBSCRIPTION AGREEMENT
DATED AS OF MARCH 15, 2000
DEFINITIONS
"ADDITIONAL SHARES" means the shares of Common Stock acquired
by the Investor at the Second Closing.
"ADDITIONAL WARRANT" means the warrant issued to the Investor
at the Second Closing.
"AFFILIATE" means: (a) with respect to a person, any member
of such person's family; (b) with respect to an entity, any officer, director,
stockholder, partner or investor of or in such entity or of or in any Affiliate
of such entity; and (c) with respect to a person or entity, any person or entity
which directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with such person or entity.
"AGREEMENT" means any concurrence of understanding and
intention between two or more persons (or entities) with respect to their
relative rights and/or obligations or with respect to a thing done or to be done
(whether or not conditional, executory, express, implied, in writing or meeting
the requirements of contract), including, without limitation, contracts, leases,
promissory notes, covenants, easements, rights of way, covenants, commitments,
arrangements and understandings.
"CLAIMS" means all demands, claims, actions or causes of
action, assessments, losses, damages (including, without limitation, diminution
in value), liabilities, costs and expenses, including, without limitation,
interest, penalties and reasonable attorneys' fees and disbursements.
"CLOSING" means the Closing of the sale of shares of Series A
Stock and the Warrant to the Investor under this Agreement.
"COMMON STOCK" means the Company's Common Stock, no par value
per share.
"COMPANY" means Interland, Inc., a Georgia corporation.
"CONTROL" means possession, directly or indirectly, of power
to direct or cause the direction of management or policies (whether through
ownership of voting securities, by Agreement or otherwise).
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"DOCUMENTS" means any paper or other material (including,
without limitation, computer storage media) on which is recorded (by letters,
numbers or other marks) information that may be evidentially used, including,
without limitation, legal opinions, mortgages, indentures, notes, instruments,
leases, Agreements, insurance policies, reports, studies, Financial Statements
(including, without limitation, the notes thereto), other written financial
information, schedules, certificates, charts, maps, plans, photographs, letters,
memoranda and all similar materials.
"EXHIBIT" means an exhibit attached to the Agreement.
"FURNISHED" means supplied, delivered or provided in any way,
including through attorneys, employees or officers.
"INVESTOR" means Network Solutions, Inc., a Delaware
corporation.
"KNOWLEDGE" means to the actual knowledge of the party making
the representation, and, in the case of the Company, "Knowledge" shall mean the
actual Knowledge of the officers and directors of the Company.
"LAWS" means all foreign, federal, state and local statutes,
laws, ordinances, regulations, rules, resolutions, orders, determinations,
writs, injunctions, awards (including, without limitation, awards of any
arbitrator), judgments and decrees applicable to the specified persons or
entities and to the businesses and Assets thereof (including, without
limitation, Laws relating to securities registration and regulation; the sale,
leasing, ownership or management of real property; employment practices, terms
and conditions, and wages and hours; building standards, land use and zoning;
safety, health and fire prevention; and environmental protection, including
Environmental Laws).
"PERSON" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization or entity, government or
department or agency of a government.
"SECOND CLOSING" means the closing of the sale of the
Additional Shares and the Additional Warrant to the Investor under this
Agreement
"SECTION" means a Section (or a subsection) of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and all Laws promulgated pursuant thereto or in connection therewith.
"SERIES A STOCK" means the Company's Series A Convertible
Participating Preferred Stock, no par value per share.
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"SHARES" means the Series A Stock being purchased by the
Investor pursuant to the terms of this Agreement.
"SUBSIDIARY" means a corporation or other entity of which at
least 50% of the outstanding securities or other interests having rights to vote
or otherwise exercise Control are held, directly or indirectly, by the Company.
"WARRANT" means the warrant to purchase shares of Common Stock
issued to the Investor at the Closing.
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EXHIBIT B
TO SUBSCRIPTION AGREEMENT
DATED AS OF MARCH 15, 2000
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
INTERLAND, INC.
1.
The name of the corporation is Interland, Inc. (hereinafter
referred to as the "Corporation").
2.
The powers, rights and preferences, and the qualifications,
limitations and restrictions thereof, of Series A Convertible Participating
Preferred Stock and Series A-1 Convertible Participating Preferred Stock, as set
forth at the end of Article IV of the Amended and Restated Articles of
Incorporation of the Corporation, are hereby deleted and restated in their
entirety as follows:
"SERIES A AND SERIES A-1 CONVERTIBLE PARTICIPATING PREFERRED STOCK
The following sections set forth the powers, rights and
preferences, and the qualifications, limitations and restrictions thereof, of
the Corporation's Series A Convertible Participating Preferred Stock and the
Series A-1 Convertible Participating Preferred Stock.
SECTION 1. DESIGNATION AND AMOUNT.
1.1. Number of Shares. The designation of one of the
series of Preferred Stock, no par value per share, provided for herein shall be
"Series A Convertible Participating Preferred Stock" (hereinafter referred to as
the "Series A Preferred"), and the number of authorized shares constituting
Series A Preferred is 15,000,000. The designation of the other series of
Preferred Stock, no par value per share, provided for herein shall be "Series
A-1 Convertible Participating Preferred
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Stock" (hereinafter referred to as the "Series A-1 Preferred"), and the number
of authorized shares constituting Series A-1 Preferred is 2,100,000. The shares
of Series A-1 Preferred shall only be issued as dividends on the Series A
Preferred pursuant to Section 2.2 hereof. The Series A-1 Preferred shall have
all of the same powers, preferences, rights, qualifications, limitations and
restrictions as the Series A Preferred and shall otherwise be identical and pari
passu to the Series A Preferred except as specifically provided in Section
5.1(b) hereof. Unless expressly provided otherwise herein, the term "Series A
Preferred" shall refer to both the Series A Preferred and the Series A-1
Preferred.
1.2. Restrictions on Reissuance. All shares of Series A
Preferred redeemed, purchased or otherwise acquired by the Corporation shall be
retired and canceled and shall be restored to the status of authorized, but
unissued shares of Preferred Stock, without designation as to series, and may
thereafter be issued, but not as shares of Series A Preferred.
1.3. Stated Value Per Share. The Stated Value Per Share of
the Series A Preferred issued prior to March __, 2000 shall be $2.18. The Stated
Value Per Share of the Series A Preferred issued on or after March __, 2000
shall be $5.80. Share certificates issued on or after March___,2000 shall
reference the applicable Stated Value Per Share.
1.4. Rank. The Series A Preferred shall, with respect to
rights upon liquidation, winding up or dissolution, and redemption rights, rank
(a) junior to any other series of Preferred Stock duly established by the Board
of Directors of the Corporation, the terms of which shall specifically provide
that such series shall rank prior to the Series A Preferred, whether now
existing or hereafter created (the "Senior Preferred Stock") and (b) prior to
any other class or series of Preferred Stock the terms of which shall
specifically provide that such series shall rank junior to the Series A
Preferred and prior to any other series of capital stock of the Corporation,
including all classes of the Common Stock, no par value per share, of the
Corporation, whether now existing or hereafter created (the "Common Stock"; all
of such classes or series of capital stock of the Corporation to which the
Series A Preferred ranks prior, including without limitation the Common Stock,
and including, without limitation, junior securities convertible into or
exchangeable for other junior securities or phantom stock representing junior
securities, are collectively referred to herein as "Junior Securities").
SECTION 2. DIVIDENDS.
2.1. General Obligation.
Subject to any prior preferences and other rights of any
Senior Preferred Stock and to the provisions of this SECTION 2.1, the record
holders of the Series A Preferred shall be entitled to receive when, as and if
declared by the Corporation's Board of Directors and to the extent permitted
under the Georgia
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Business Corporation Code, as amended (the "Act"), cumulative preferential
dividends on the shares of the Series A Preferred outstanding, at a compounded
annual rate per share of nine percent (9%) of the Stated Value Per Share of the
Series A Preferred. Dividends on the Series A Preferred shall accrue on a
semi-annual basis with the dividend periods ending on the last day of each of
May and November, with the first dividend period ending on May 31, 2000.
Dividends on the Series A Preferred shall be cumulative from the first date on
which shares of Series A Preferred are issued (the "Original Issue Date"),
whether or not declared and whether or not in any dividend period there shall
have been net profits or net assets of the Corporation legally available for the
payment of those dividends. After the holders of the Series A Preferred have
received their dividend preference as set forth above, the holders of the Series
A Preferred shall be entitled to receive, out of funds legally available
therefor, dividends at the same rate as dividends (other than dividends payable
in additional shares of Common Stock) are paid with respect to the Common Stock
(treating each share of Series A Preferred as being equal to the number of
shares of Common Stock (including fractions of a share) into which each share of
Series A Preferred is then convertible).
2.2. Payment of Dividends.
Any dividend on the Series A Preferred accrued and payable as
provided in this SECTION 2 shall be paid at, the option of the Corporation, (i)
in cash, (ii) by issuing a number of shares (or partial shares) of the Series
A-1 Preferred for each such share (or partial share) of Series A Preferred then
outstanding equal to the dividend then payable on each such share (or partial
share) of Series A Preferred for the dividend period then ended (or such shorter
period for which dividends are so being paid) (expressed as a dollar amount)
divided by the Stated Value Per Share, or (iii) a combination thereof. To the
extent declared by the Board of Directors of the Corporation, dividends accrued
for each semi-annual period ending on the last day of the next preceding May and
November, respectively, shall be paid on the fifth day of June or December,
respectively (or if any such day is not a business day, the next business day
following such day) in each year (each such date being referred to as a
"Dividend Payment Date")). Dividends shall be paid to the holders of record of
Series A Preferred as of the last day of the month immediately preceding the
Dividend Payment Date. Any dividends not paid on a Dividend Payment Date
thereafter shall accumulate and shall be considered "accrued but unpaid" for all
purposes hereunder until paid. The amount of dividends accruing for any period
shorter or longer than a full semi-annual dividend period shall be determined on
the basis of twelve 30-day months and a 360-day year, and the actual number of
days elapsed in the period for which a dividend is payable. Dividends paid on
the shares of Series A Preferred in an amount less than the total amount of such
dividends at the time accrued on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. Dividends
for any past semi-annual dividend period that are accrued but unpaid may be
declared and paid at any time,
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without reference to any regular Dividend Payment Date, to the holders of record
on the record date for such dividend payment.
2.3. Dividends or Distributions on Junior Securities.
The Corporation shall not declare and pay any dividends on
Junior Securities unless all accrued and unpaid dividends on the Series A
Preferred have been paid in full. The Corporation shall not repurchase, redeem
or make any distribution with respect to any Junior Securities unless all
accrued and unpaid dividends on the Series A Preferred have been paid in full.
SECTION 3. LIQUIDATION.
In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation"), the holders of
shares of Series A Preferred shall be entitled to receive for each share of
Series A Preferred the greater of (a) the Stated Value Per Share plus any
accrued but unpaid dividends on the Series A Preferred out of the assets of the
Corporation legally available for distribution to stockholders (whether
representing capital or surplus), before any payment or distribution shall be
made on the Common Stock or any other Junior Securities, but after distribution
of such assets among, or payment thereof over to, creditors of the Corporation
and to holders of the Senior Preferred Stock (the "Series A Preferred
Liquidation Distribution") or (b) the amount that each holder of Series A
Preferred would receive out of the remaining assets of the Corporation available
for distribution to stockholders (treating each share of Series A Preferred as
being equal to the number of shares of Common Stock (including fractions of a
share) into which each share of Series A Preferred is then convertible) and
Junior Securities in accordance with the respective rights of such holders. If
the assets distributable to holders of the Series A Preferred upon such
dissolution, liquidation or winding up shall be insufficient to pay cash in an
amount equal to the amount of the Series A Preferred Liquidation Distribution to
the holders of shares of Series A Preferred then such assets or the proceeds
thereof shall be distributed among the holders of the Series A Preferred ratably
in proportion to the respective amounts to which they otherwise would be
entitled. Upon the election of a majority of the shares of the Series A
Preferred (including fractional shares) then outstanding, in the aggregate and
given in writing or by vote at a meeting, and consenting or voting separately as
a single class, (i) the sale, conveyance, exchange or transfer of all or
substantially all of the property or assets of the Corporation, (ii) the
consolidation or merger of the Corporation with any other corporation in which
the Corporation's stockholders prior to the consolidation or merger own less
than a majority of the voting securities of the surviving corporation or (iii)
any capital reorganization or reclassification (any such event a "Reorganization
Event") will be deemed to be a Liquidation, provided that (x) the holders of
Series A Preferred, consenting or voting separately as a class, have not
previously approved the Reorganization Event, (y) the holders of Series A
Preferred, voting separately as a
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class, do not have the right to approve the Reorganization Event pursuant to
Section 4(a) below or (z) the Corporation has not exercised its right, pursuant
to Section 4, to convert all of the Series A Preferred into Common Stock in
connection with such a Reorganization Event.
SECTION 4. VOTING RIGHTS; PROTECTIVE PROVISIONS.
The holders of the Series A Preferred shall be entitled to notice of
all stockholder meetings in accordance with the Corporation's bylaws, and except
as otherwise required by law or these Articles, the holders of the Series A
Preferred shall vote on all matters submitted to the stockholders for a vote
together with the holders of the Common Stock as a single voting group, and each
share of Series A Preferred (including fractional shares) shall be entitled to
the number of votes equal to the number of votes which could be cast in such
vote by the number of shares of Common Stock that would be issuable upon
conversion of such share of Series A Preferred on the record date for
determining eligibility to participate in the action being taken. In addition to
any other rights provided by law, the consent of a majority of the shares of the
Series A Preferred (including fractional shares), which consent will not in any
event be unreasonably withheld, on an as if converted basis then outstanding, in
the aggregate and given in writing or by vote at a meeting, and consenting or
voting separately as a single class on an as-if-converted basis, shall be
required for the Corporation to:
(a) authorize or effect a Reorganization Event or
Liquidation, except for a Reorganization Event or Liquidation in which the
consideration per share of Series A Preferred (including shares Outstanding on
an As-Converted Basis (as defined below) if appropriate) is equal to or greater
than (i) $6.54 per share if the transaction takes place before December 2, 2002
or (ii) $8.72 per share if the transaction takes place on or after December 2,
2002 provided that the consideration consists of (i) cash, (ii) securities
listed on an established national securities exchange or automated quotation
system and registered under the Act or (iii) a combination thereof;
(b) authorize the issuance of unsecured debt in an amount
greater than $20 million;
(c) authorize the issuance of any equity securities that
are senior to or pari passu with the Series A Preferred;
(d) materially alter the rights, preferences or
privileges of the Series A Preferred; or
(e) increase or decrease the number of authorized shares
of Series A Preferred.
In the event that the holders of the Series A Preferred do not
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approve any of the matters set forth above, the Corporation shall have the right
to convert all of the outstanding shares of Series A Preferred into Common Stock
at a conversion ratio (which represents the number of shares of Common Stock
into which each share of Series A Preferred is convertible) determined by
dividing (A) the greater of (i) $6.54 per Share or (ii) the current market value
of a share of Common Stock as determined by a third-party unaffiliated
investment bank of national repute selected jointly by the Corporation and the
holders of a majority of the Series A Preferred by (B) the Conversion Price then
in effect. The Corporation must exercise its right to cause a conversion
pursuant to this SECTION 4 within sixty (60) days of the date upon which the
Corporation receives final written notification that the holders of Series A
Preferred have not consented to any of the matters set forth above and the
conversion of the Series A Preferred pursuant to this SECTION 4 shall be
effected within thirty (30) days of such election by the Corporation.
SECTION 5. OPTIONAL CONVERSION.
5.1. General.
(a) Series A Preferred. At any time and from time to time
after the issuance thereof, any holder of Series A Preferred may convert any
share of Series A Preferred held by such holder into a number of shares of
Common Stock determined by dividing the Stated Value Per Share of the Series A
Preferred by the Conversion Price then in effect. The initial Conversion Price
for the Series A Preferred issued prior to March __, 2000 shall be $2.18. The
initial Conversion Price for the Series A Preferred issued on or after March __,
2000 shall be $5.80. The Conversion Price from time to time in effect is subject
to adjustment as hereinafter provided.
(b) Series A-1 Preferred. Each share of Series A-1
Preferred shall convert into the same number of shares of Common Stock as each
share of Series A Preferred pursuant to which it was issued and the provisions
of this Section 5 shall apply to the Series A-1 Preferred, except as
specifically provided in this Section 5.1(b). In the event that the Corporation
has completed a "Qualified Equity Infusion" (as defined below) after the
issuance of the shares of Series A Preferred, any holder of Series A-1 Preferred
may convert any shares of Series A-1 Preferred held by such holder into a number
of shares of Common Stock determined by dividing the Stated Value Per Share by
the price per share of Common Stock paid (or the value accorded each share of
Common Stock if the security purchased is other than Common Stock) in the
Corporation's most recent "Qualified Equity Infusion" (as defined below) which
occurred after the issuance by the Corporation of the shares of Series A
Preferred held by such holder. For purposes of this SECTION 5.1(B), Qualified
Equity Infusion shall mean the most recent (i) equity investment of $5 million
or more made by a "Strategic Investor" (as defined below) or (ii) equity
investment of $10 million or more by a non-Strategic Investor. For purposes of
this
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SECTION 5.1(B), "Strategic Investor" shall mean an investor in the Corporation's
securities which (i) is engaged in the same or a related business as the
Corporation, (ii) in the opinion of a majority of the Board of Directors, is
making the investment primarily for strategic business reasons rather than as a
passive investment and (iii) has a public market capitalization (based on the
fair market value of its outstanding publicly-traded securities) of at least $2
billion. For purposes of this SECTION 5.1(B), an "equity investment" shall
include an investment in any shares of capital stock of the Corporation or any
security which is convertible into, exchangeable for, or exercisable for any
shares of capital stock of the Corporation.
5.2. Conversion Procedure
(a) Any holder of shares of Series A Preferred desiring
to convert any portion thereof into Common Stock shall surrender each
certificate representing one or more shares of the Series A Preferred to be
converted, duly endorsed in favor of the Corporation or in blank and accompanied
by proper instruments of transfer, at the principal business office of the
Corporation (or such other place as may be designated by the Corporation), and
shall give written notice to the Corporation at that office of its election to
convert the same, setting forth therein the name or names (with the address or
addresses) in which the shares of Common Stock are to be issued. Conversion
shall be effective upon receipt by the Corporation of the notice and the share
certificate or certificates contemplated by the preceding sentence. In case of
any Liquidation of the Corporation, such right of conversion shall cease and
terminate at the close of business on the business day fixed for payment of the
amount distributable to the holders of the Series A Preferred pursuant to
SECTION 3.
(b) As soon as possible after a conversion has been
effected (but in any event within five business days), the Corporation shall
deliver to the converting holder:
(i) a certificate or certificates representing
the number of shares of Common Stock issuable by reason of such conversion in
such name or names and such denomination or denominations as the converting
holder has specified; and
(ii) a certificate representing any shares of
Series A Preferred which were represented by the certificate or certificates
delivered to the Corporation in connection with such conversion but which were
not converted.
(c) The issuance of certificates for shares of Common
Stock upon conversion of Series A Preferred shall be made without charge to the
holders of such Series A Preferred for any issuance tax in respect thereof or
other cost incurred by the Corporation in connection with such conversion and
the related issuance of shares of Common Stock.
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(d) The Corporation shall not close its books against the
transfer of Series A Preferred or of Common Stock issued or issuable upon
conversion of Series A Preferred in any manner which interferes with the timely
conversion of Series A Preferred. The Corporation shall assist and cooperate
(but the Corporation shall not be required to expend substantial efforts or
funds in excess of $5,000 in the aggregate) with any holder of Series A
Preferred required to make any governmental filings or obtain any governmental
approval prior to or in connection with any conversion of shares of Series A
Preferred hereunder (including, without limitation, making any filings required
to be made by the Corporation).
(e) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of issuance upon the conversion of the Series A Preferred, not less
than the number of shares of Common Stock issuable upon the conversion of all
outstanding Series A Preferred that may then be exercised. All shares of Common
Stock which are so issuable shall, when issued, be duly authorized and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges.
The Corporation shall take all such actions as may be necessary to ensure that
all such shares of Common Stock may be so issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Common Stock may be listed (except for
official notice of issuance which shall be immediately delivered by the
Corporation upon each such issuance).
5.3. Subdivision or Combination of Common Stock. If the Corporation
at any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) the outstanding shares of one or more classes of Common Stock into a
greater number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be proportionately decreased to account for such
subdivision, and if the Corporation at any time combines (by reverse stock split
or otherwise) the outstanding shares of one or more classes of Common Stock into
a smaller number of shares, the Conversion Price in effect immediately prior to
such combination shall be proportionately increased.
5.4. Reorganization, Reclassification, Consolidation, Merger or
Sale. In connection with any Reorganization Event, the holders of Series A
Preferred shall thereafter have the right to acquire and receive, in lieu of (or
in addition to, as the case may be) the shares of Common Stock immediately
theretofore acquirable and receivable upon the conversion of such holder's
Series A Preferred, such shares of stock, securities, cash or other assets (or,
if not practicably attainable, the reasonable equivalent thereof) as such holder
would have received in connection with such Reorganization Event if such holder
had converted its Series A Preferred immediately prior to such Reorganization
Event. The Corporation shall make appropriate provisions to ensure that the
requirements of the previous sentence are effected. The Corporation will not
effect any such Reorganization Event unless
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prior to the consummation thereof, the successor corporation (if other than the
Corporation) resulting from such Reorganization Event assumes, by written
instrument, the obligation to deliver each such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to acquire.
5.5. Adjustment of Price Upon Issuance of Common Stock.
If and whenever the Corporation shall issue or sell, or is, in
accordance with subparagraphs 5.5(a) through 5.5(g), deemed to have issued or
sold, any shares of Common Stock or other equity securities of the Corporation
or any Options (as defined below) or Convertible Securities (as defined below)
for a price per share less than the applicable Conversion Price for the Series A
Preferred immediately prior to the time of such issue or sale (except for (A)
shares issued in connection with the conversion of Series A Preferred or (B) the
issuance of options, warrants or other common stock equivalents or shares issued
upon the exercise of options, warrants or other common stock equivalents to
directors, officers or employees of the Corporation which are approved by the
Compensation Committee of the Corporation's Board of Directors) (a "Dilutive
Financing"), the Conversion Price shall be reduced by multiplying the Conversion
Price in effect immediately before the issuance or sale by a fraction, the
numerator of which is the number of shares of Common Stock that are Outstanding
on an As-Converted Basis (as defined below) immediately before the Dilutive
Financing plus the number of shares of Common Stock that could be purchased at
the Conversion Price immediately before the time of the Dilutive Financing for
the aggregate consideration paid or payable upon the sale or issuance of Common
Stock or other securities in the Dilutive Financing, and the denominator of
which is the number of shares of Common Stock that are Outstanding on an
As-Converted Basis immediately before the Dilutive Financing plus the number of
shares that are acquired or to be acquired upon the sale or issuance of the
Common Stock and other securities in the Dilutive Financing. For purposes of
this SECTION 5.5, "Outstanding on an As-Converted Basis" immediately before the
Dilutive Financing means the sum of (i) all Common Stock issued and outstanding
immediately before the Dilutive Financing plus (ii) all Common Stock that would
be issued if all Series A Preferred, Options and other Convertible Securities
were converted or exercised, as applicable, hereunder immediately before the
Dilutive Financing.
For purposes of this SECTION 5.5., the following subparagraphs (a) to
(g) shall also be applicable:
(a) Issuance of Rights or Options. In case at any time
the Corporation shall in any manner grant (whether directly or by assumption in
a merger or otherwise) any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any stock or
security convertible into or exchangeable for Common Stock (such warrants,
rights or options being
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called "Options" and such convertible or exchangeable stock or securities being
called "Convertible Securities") whether or not such Options or the right to
convert or exchange any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon the exercise of
such Options or upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the total amount, if any, received or receivable by
the Corporation as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to the Corporation
upon the exercise of all such Options, plus, in the case of such Options which
relate to Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of all such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the applicable
Conversion Price for the Series A Preferred immediately prior to the time of the
granting of such Options, then the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon conversion or exchange
of the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options shall be deemed to have been issued for such price per
share as of the date of granting of such Options or the issuance of such
Convertible Securities and thereafter shall be deemed to be outstanding.
(b) Issuance of Convertible Securities. In case the
Corporation shall in any manner issue (whether directly or by assumption in a
merger or otherwise) or sell any Convertible Securities, whether or not the
rights to exchange or convert any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange (determined by dividing (i) the total amount
received or receivable by the Corporation as consideration for the issue or sale
of such Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the applicable Conversion Price for the Series A Preferred
immediately prior to the time of such issue of sale, then the total maximum
number of shares of Common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to have been issued for such price
per share as of the date of the issue or sale of such Convertible Securities and
thereafter shall be deemed to be outstanding, provided that except as otherwise
provided in subparagraph (c), no adjustment of any Conversion Price shall be
made upon the actual issue of such Common Stock upon conversion or exchange of
such Convertible Securities and if any such issue or sale of such Convertible
Securities is made upon exercise of any Options to purchase any such Convertible
Securities for which adjustments of any Conversion Price have been or are to be
made pursuant to
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other provisions of this SECTION 5.5., no further adjustment of such Conversion
Price shall be made by reason of such issue or sale.
(c) Change in Option Price or Conversion Rate; Expiration
of Options or Convertible Securities. Upon the happening of any of the following
events, namely, if the purchase price provided for in any Option referred to in
subparagraph (a), the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in subparagraph
(a) or (b), or the rate at which Convertible Securities referred to in
subparagraph (a) or (b) are convertible into or exchangeable for Common Stock
shall change at any time (including, but not limited to, changes under or by
reason of provisions designed to protect against dilution), the applicable
Conversion Price for the Series A Preferred at the time of such event shall
forthwith be readjusted to the Conversion Price which would have been in effect
at such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or sold, but
only if as a result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced; and on the expiration or termination of such
Option or Convertible Securities, the Conversion Price then in effect hereunder
shall forthwith be increased to the Conversion Price which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination, never been issued; provided, that any consideration
which was actually received by the Corporation in connection with the issuance
or sale of such Options or Convertible Securities shall be included in the
readjustment computation even though such Options or Convertible Securities
shall have expired or terminated.
(d) Stock Dividends. In case the Corporation shall
declare a dividend or make any other distribution upon any stock of the
Corporation payable in Common Stock (except for dividends or distributions upon
the Common Stock), Options or Convertible Securities (except for dividends or
distributions on the Series A Preferred), the Common Stock, Options or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold at consideration
equal to $.01 per share.
(e) Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Corporation therefor, without deduction therefrom of any amounts paid or
receivable for accrued interest or accrued dividends and any expenses incurred
or any underwriting commissions or concessions paid or allowed by the
Corporation in connection therewith. In case any shares of Common Stock, Options
or Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the
Corporation shall be deemed to be
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the fair value of such consideration as determined in good faith by the Board of
Directors of the Corporation, without deduction of any amounts paid or
receivable for accrued interest or accrued dividends and any expenses incurred
or any underwriting commissions or concessions paid or allowed by the
Corporation in connection therewith. In case any Options shall be issued in
connection with the issue and sale of other securities of the Corporation,
together comprising one integral transaction in which no specific consideration
is allocated to such Options by the parties thereto, such Options shall be
deemed to have been issued for such consideration as determined in good faith by
the Board of Directors of the Corporation.
(f) Record Date. In case the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in Common Stock, Options or
Convertible Securities or (ii) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(g) Treasury Shares. The disposition of any shares of
Common Stock owned or held by or for the account of the Corporation shall be
considered an issue or sale of Common Stock for the purpose of this SECTION
5.5., but while held as Treasury Shares shall not be included in the number of
shares of Common Stock outstanding.
5.6. Notices.
(a) Immediately upon any adjustment of the Conversion
Price, the Corporation shall give written notice thereof to all holders of
Series A Preferred, setting forth in reasonable detail and certifying the
calculation of such adjustment.
(b) The Corporation shall give written notice to all
holders of Series A Preferred at least 20 days prior to the date on which the
Corporation closes its books or fixes a record date (i) with respect to any
dividend or distribution upon Common Stock, (ii) with respect to any pro rata
subscription offer to holders of Common Stock or (iii) for determining rights to
vote with respect to any Liquidation or Reorganization Event.
5.7 Certain Events.
If any event occurs of the type contemplated by the provisions
of this Section 5 but not expressly provided for by such provisions, upon
approval by a Disinterested Majority (as defined below), then the Corporation's
board of directors will make an appropriate adjustment in the Conversion Price
so as to protect the
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rights of the holders of the Series A Preferred; provided, however, that no such
adjustment will increase the Conversion Price as otherwise determined pursuant
to this Section 5 or decrease the number of shares of Common Stock issuable upon
conversion of each share of Series A Preferred. For purposes hereof,
"Disinterested Majority" shall mean a majority of the Board of Directors,
whether or not a quorum, excluding those directors who have a direct or indirect
interest in the transaction and those directors who shall have been elected or
designated by the holders of the Series A Preferred.
SECTION 6. MANDATORY CONVERSION. Each share of Series A Preferred shall
automatically be converted into shares of Common Stock at the then effective
Conversion Price (i) immediately prior to the closing of an underwritten initial
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public resulting in the gross proceeds
to the Corporation of not less than $30 million and at a price per share at
least equal to the "Threshold Price" (as defined below) (a "Qualified IPO") or
(ii) following a non-Qualified IPO once the average of the closing sale price of
the Common Stock for sixty (60) consecutive trading days as reported on the
national securities exchange or automated quotation system on which the
Corporation's Common Stock is then listed exceeds the "Threshold Price" (as
defined below). For purposes hereof, "Threshold Price" means either (a) $6.54
per share if the initial public offering takes place prior to December 2, 2002
or (b) $8.72 per share if the initial public offering takes place on or after
December 2, 2002. Each share of Series A-1 Preferred shall be converted as set
forth in SECTION 5.1(B) upon the satisfaction of either of the above conditions.
SECTION 7. REGISTRATION OF TRANSFER.
The Corporation shall keep at its principal office a register for the
registration of issuance and transfers of Series A Preferred. Upon the surrender
of any certificate representing Series A Preferred at such place, the
Corporation shall, at the request of the record holder of such certificate,
execute and deliver (at the Corporation's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares of Series A Preferred represented by the surrendered certificate. Each
such new certificate shall be registered in such name and shall represent such
number of shares of Series A Preferred as is requested by the holder of the
surrendered certificate and shall be substantially identical in form to the
surrendered certificate, and dividends shall accrue on the Series A Preferred
represented by such new certificate from the date to which dividends have been
fully paid on such Series A Preferred represented by the surrendered
certificate. The new certificate shall contain a legend referencing the
applicable Stated Value Per Share as provided in Section 1.3.
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SECTION 8. REPLACEMENT.
Upon receipt of evidence reasonably satisfactory to the Corporation (an
affidavit of the registered holder shall be satisfactory) of the ownership and
the loss, theft, destruction or mutilation of any certificate evidencing shares
of Series A Preferred, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Corporation (provided
that if the holder is a financial institution or other institutional investor,
its own agreement shall be satisfactory), or, in the case of any such mutilation
upon surrender of such certificate, the Corporation shall (at its expense)
execute and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of Series A Preferred represented by such
lost, stolen, destroyed or mutilated certificate and dated the date of such
lost, stolen, destroyed or mutilated certificate, and dividends shall accrue on
the Series A Preferred represented by such new certificate from the date to
which dividends have been fully paid on the shares of Series A Preferred
represented by such lost, stolen, destroyed or mutilated certificate.
SECTION 9. NOTICES.
Except as otherwise expressly provided hereunder, all notices referred
to herein shall be in writing and shall be delivered by registered or certified
mail, return receipt requested and postage prepaid, or by reputable overnight
courier service, charges prepaid, and shall be deemed to have been given when so
mailed or sent (a) to the Corporation, at its principal executive offices and
(b) to any stockholder, at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated by any such holder).
SECTION 10. AMENDMENT AND WAIVER.
No amendment, modification or waiver shall be binding or effective with
respect to any provision hereof without the prior affirmative vote or written
consent of the holders of a majority of the shares of Series A Preferred
outstanding at the time such action is taken."
4.
The amendment was duly adopted by unanimous written consent of the
Board of Directors dated as of March ____, 2000 and was duly approved by the
Corporation's shareholders in accordance with the applicable provisions of the
Georgia Business Corporations Code.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed by its duly authorized officer, this ____ day of
_______, 2000.
INTERLAND, INC.
By
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
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EXHIBIT C
TO SUBSCRIPTION AGREEMENT
DATED AS OF MARCH 15, 2000
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER THE ACT.
COMMON STOCK WARRANT
OF
INTERLAND, INC.
NO. A-1
_______ __, 2000
Void after the Fifth Anniversary
of the Above-Referenced Date
THIS CERTIFIES THAT, for value received, Network Solutions,
Inc. (together with any permitted assigns, the "Warrantholder") is entitled to
purchase from Interland, Inc., a Georgia corporation (the "Company"), 344,827
shares of Common Stock, no par value per share, of the Company ("Common Stock").
The exercise price per share applicable to this Warrant (the "Exercise Price")
shall be $5.80 per share of Common Stock. The Exercise Price and such number of
shares shall be subject to adjustment upon the occurrence of the contingencies
set forth in this Warrant.
Upon delivery of this Warrant, together with payment of the
Exercise Price multiplied by the total number of shares of Common Stock thereby
purchased (the "Aggregate Exercise Price"), at the principal office of the
Company or at such other office or agency as the Company may designate by notice
in writing to the holder hereof, the holder of this Warrant shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased. The date at which the Company receives (i) this Warrant and (ii)
payment for the shares of Common Stock, either by payment in cash, or by check,
or wire transfer, shall be referred to herein as the "Exercise Date". All shares
of Common Stock which may be issued upon the exercise of this Warrant ("Warrant
Shares") shall, upon issuance, be fully paid, validly issued and non-assessable,
free from all taxes, liens and charges.
This Warrant is subject to the following terms and conditions:
31
1. Exercise of Warrant.
1.1 Time of Exercise.
(a) This Warrant may be exercised in whole or in
part commencing on the date hereof until the fifth anniversary date of the
issuance of this Warrant, and if such day is not a business day, then on the
next business day thereafter.
(b) The issuance of certificates for shares upon
exercise of this Warrant shall be made without charge to the holder thereof for
any issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of the shares.
(c) The Company shall not close its books
against the transfer of this Warrant or of any shares issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant.
(d) The Company shall at all times reserve and
keep available out of its authorized but unissued Common Stock solely for the
purpose of issuance upon the exercise of this Warrant, the maximum number of
shares issuable upon the exercise of this Warrant.
1.2 Method of Exercise. While this Warrant remains
outstanding and exercisable in accordance with Section 1.1, the Warrantholder
may exercise, in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) the surrender of the Warrant at the
principal office of the Company; and
(b) subject to Section 1.3, the payment to the
Company by wire transfer or check of the Aggregate Exercise Price for all shares
of Common Stock purchased.
1.3 Net Exercise. In lieu of exercising this Warrant, the
Warrantholder may elect to receive shares of Common Stock equal to the value of
this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the holder hereof a number
of shares of Common Stock computed using the following formula:
S = P x (F-E)
-------
F
Where
S = The number of shares of Common Stock to be issued to the
Warrantholder.
P = The number of shares of Common Stock purchasable under
this Warrant.
F = The Fair Market Value (as defined below) of 1 share of
Common Stock.
E = The Exercise Price (as adjusted to the date of such
calculations).
For purposes of this Section 1.3, the "Fair Market Value" of
the Common Stock shall be determined in good faith by the Board of Directors of
the Company; provided, that if the Common Stock is then trading on a national
securities exchange or in the over-the-counter market, such determination shall
be made with reference to the average closing price of the Common Stock in such
trading over the 20 trading days immediately preceding the exercise of the
Warrant.
1.4 Certificates for Shares. The Company shall, within 30
days after the Exercise Date, prepare a certificate for the shares of Common
Stock purchased in the name of the holder of this Warrant, or as such holder may
direct (subject to the restrictions upon transfer contained herein and upon
payment by such holder hereof of any applicable transfer taxes). In case the
Warrantholder shall exercise this Warrant with respect to less than all of the
shares of Common Stock that may be purchased under this Warrant, the Company
shall execute a new warrant in the form of this Warrant for the balance of such
shares and deliver such new warrant to the Warrantholder.
1.5 Warrant Register. The Company shall maintain at its
principal executive offices books for the registration and the registration of
transfer of Warrants. The Company may deem and treat the Warrantholder as the
absolute owner hereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes and shall not be affected by
any notice to the contrary.
2. Certain Adjustments.
2.1 Exercise Price; Adjustment of Number of Shares. The
Exercise Price set forth in Section 1 hereof and the number of shares
purchasable hereunder shall be subject to adjustment from time to time as
hereinafter provided.
2.2 Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or reclassification of the capital
stock of the Company, or any consolidation or merger of the Company with another
entity, or the sale of all or substantially all of the Company's assets to
another person or entity (collectively referred to as a "Transaction") shall be
effected in such a way that holders of Common Stock shall be entitled to receive
stock,
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securities, cash or assets with respect to or in exchange for Common Stock,
then, as a condition of such Transaction, reasonable, lawful and adequate
provisions shall be made whereby the holder of this Warrant shall thereafter
have the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant, upon exercise of this Warrant and in lieu
of the Warrant Shares immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby, such number, amount and like kind
of shares of stock, securities, cash or assets as may be issued or payable
pursuant to the terms of the Transaction with respect to or in exchange for the
number of shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby as if such shares
were outstanding immediately prior to the Transaction, and in any such case
appropriate provision shall be made with respect to the rights and interest of
the holders to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Exercise Price and of the number
of Warrant Shares purchasable and receivable upon the exercise of this Warrant)
shall thereafter be applicable, as nearly as may be practicable, in relation to
any shares of stock or securities thereafter deliverable upon the exercise
hereof.
2.3 Stock Splits, Stock Dividends and Reverse Stock
Splits. In case at any time the Company shall subdivide its outstanding shares
of Common Stock into a greater number of shares, or shall declare and pay any
stock dividend with respect to its outstanding stock that has the effect of
increasing the number of outstanding shares of Common Stock, the Exercise Price
in effect immediately prior to such subdivision or stock dividend shall be
proportionately reduced and the number of Warrant Shares purchasable pursuant to
this Warrant immediately prior to such subdivision or stock dividend shall be
proportionately increased, and conversely, in case at any time the Company shall
combine its outstanding shares of Common Stock into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of Warrant Shares purchasable upon the
exercise of this Warrant immediately prior to such combination shall be
proportionately reduced.
2.4 Issuance of Additional Shares of Common Stock. If at
any time after the first anniversary of the date of the Warrant and prior to the
Expiration Date the Company shall issue any Additional Shares of Common Stock
for a consideration per share (the "Subsequent Issue Price") less than the
Exercise Price as in effect immediately prior to such issuance, the Exercise
Price shall be reduced to the price calculated by dividing (i) an amount equal
to the sum of (x) the number of shares of Common Stock outstanding immediately
prior to such issuance multiplied by the Exercise Price then in effect plus (y)
the aggregate consideration, if any, received by the Company in connection with
such issuance, by (ii) the total number of shares of Common Stock outstanding
immediately after such issuance.
For purposes of this Section 2.4, "Additional Shares of Common
Stock" shall mean all shares of Common Stock issued or issuable by the Company
after the Original Issue Date, other than (i) shares of Common Stock issuable
under the Company's employee stock option plan as approved by the Company's
Board of Directors (the "Employee Stock") and (ii) shares issued by the Company
in an underwritten public offering. For purposes of this Section 2.4, in the
case of convertible securities, there shall be determined the price per share
for which Additional Shares of Common Stock are issuable upon the conversion or
exchange thereof, such
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determination to be made by dividing (i) the total amount received or receivable
by the Company as consideration for the issue or sale of such convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon conversion or exchange thereof by (ii) the
maximum aggregate number of additional Shares of Common Stock issuable upon
conversion or exchange of all such convertible securities for such minimum
aggregate amount of additional consideration; and such issue or sale shall be
deemed to be an issue or sale for cash (as of the date of issue or sale of such
convertible securities, whether or not then exercisable or convertible) of such
maximum number of Additional Shares of common stock at the price per share so
determined.
If any rights of conversion or exchange evidenced by
convertible securities the issuance of which resulted in an adjustment to the
Exercise Price and the number of Warrant Shares issuable hereunder pursuant to
this Section 2.4 shall expire without having been exercised, or if any such
convertible securities are exercised for a consideration greater than or for a
number of Additional Shares of Common Stock less than those used for purposed of
determining the adjustment to the Exercise Price provided in this Section 2.4,
the adjusted Exercise Price shall forthwith be readjusted to such Exercise Price
as would have been in effect had an adjustment with respect to such Convertible
Securities been made on the basis that the only Additional Shares of Common
Stock issued or sold were those issued upon the conversion or exchange of such
convertible securities, and that they were issued or sold for the consideration
actually received by the Company upon such exercise, plus the consideration, if
any, actually received by the Company for the granting of such Convertible
Securities.
Notwithstanding anything to the contrary in this Section 2.4,
in no event shall (i) the Exercise Price be increased or (ii) the number of
Warrant Shares purchasable hereunder be decreased pursuant to the provisions of
this Section 2.4.
2.5 Company to Prevent Dilution. In case at any time or
from time to time conditions arise by reason of action taken by the Company
which are not adequately covered by this Section 2, and which might materially
and adversely affect the exercise rights of the holder hereof, unless the
adjustment necessary shall be agreed by the Company and the holder hereof, the
Board of Directors of the Company shall appoint a firm of independent certified
public accountants of national standing, reasonably acceptable to the holder,
who at the Company's expense shall give their opinion upon the adjustment
necessary with respect to the Exercise Price and the number of Warrant Shares
purchasable upon exercise of this Warrant, if any, so as to preserve, without
dilution, the exercise rights of the holder hereof. In the event that the holder
disputes such adjustment, the holder shall be entitled to select an additional
firm of independent certified public accountants of national standing and paid
for by the holder to calculate such adjustment and the Company and the holder
shall use their good faith best efforts to agree on such adjustment based on the
reports of the two accounting firms. In the event that the Company and the
holder are still unable to reach agreement as to such adjustment, the Company
and the holder agree to submit such determination to binding arbitration. Upon
determination of such adjustment, the Board of Directors shall forthwith make
the adjustments described therein.
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2.6 Dissolution, Liquidation or Wind-Up. In case the
Company shall, at any time prior to the exercise of this Warrant, dissolve,
liquidate or wind up its affairs, the holder hereof shall be entitled, upon the
exercise of this Warrant, to receive, in lieu of the Warrant Shares which the
holder would have been entitled to receive, the same kind and amount of assets
as would have been issued, distributed or paid to such holder upon any such
dissolution, liquidation or winding up with respect to such Warrant Shares, had
such holder hereof been the holder of record of the Warrant Shares receivable
upon the exercise of this Warrant on the record date for the determination of
those persons entitled to receive any such liquidating distribution.
2.7 Accountant's Certificate. In each case of an
adjustment in the Exercise Price, number of Warrant Shares or other stock,
securities or property receivable upon the exercise of this Warrant, the Company
shall compute, and upon the holder's request shall at the Company's expense
cause independent public accountants of recognized standing selected by the
Company and reasonably acceptable to the holder to certify such computation,
such adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of (i) the number of
shares of Common Stock of each class outstanding or deemed to be outstanding,
(ii) the adjusted Exercise Price and (iii) the number of Warrant Shares issuable
upon exercise of this Warrant. The Company will forthwith mail a copy of each
such certificate to the holder hereof. In the event that the holder disputes
such adjustment, the holder shall be entitled to select an additional firm of
independent certified public accountants of national standing and paid for by
the holder to certify such adjustment and the Company and the holder shall use
their good faith best efforts to agree on such adjustment based on the reports
of the two accounting firms. In the event that the Company and the holder are
still unable to reach agreement as to such adjustment, the Company and the
holder agree to submit such determination to binding arbitration. Upon
determination of such adjustment, the Board of Directors shall forthwith make
the adjustments described therein.
3. Representations and Warranties of Warrantholder.
Warrantholder hereby represents and warrants that:
3.1 Purchase Entirely for Own Account. This Warrant and
the Common Stock issuable upon exercise hereof (collectively, the "Securities")
will be acquired for investment for Warrantholder's own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and Warrantholder has no present intention of selling, granting any
participation in, or otherwise distributing the same. Warrantholder does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to any person with respect to any of the
Securities. Warrantholder represents that it has full power and authority to
enter into this Warrant.
3.2 Investment Experience. Warrantholder acknowledges
that it is able to protect its own economic interests, can bear the economic
risk of its investment and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the
investment in the investment in this Warrant. Warrantholder also represents it
has not been organized for the purpose of acquiring this Warrant.
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3.3 Accredited Investor. Warrantholder is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act of 1933 (the "Act").
3.4 Restricted Securities. Warrantholder understands that
the Securities are characterized as "restricted securities" under the Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under the Act such securities may be
resold without registration under the Act only in certain limited circumstances.
In this connection, Warrantholder represents that it is familiar with Rule 144
promulgated under the Act and understands the resale limitations imposed thereby
and by the Act. Warrantholder further acknowledges that it will not be able to
avail itself of Rule 144 unless and until the Company effects a public offering
of its Common Stock.
3.5 Further Limitations on Disposition. Without in any
way limiting the representations set forth above, Warrantholder further agrees
not to make any disposition of all or any portion of the Securities unless and
until:
(a) there is then in effect a Registration
Statement under the Act covering such proposed disposition and such disposition
is made in accordance with such Registration Statement; or
(b)(i) such Warrantholder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and (ii) if reasonably requested by the Company, such Warrantholder shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such shares
under the Act.
4. Miscellaneous.
4.1 Successors and Assigns. The terms of this Warrant
shall be binding upon and shall inure to the benefit of any successors or
assigns of the Company and of the holder hereof and of the Common Stock issued
upon the exercise hereof.
4.2 No Rights as Shareholder. No Warrantholder, as such,
shall be entitled to vote or receive dividends or be deemed to be a shareholder
of the Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the holder of this Warrant, as such, any rights of a
shareholder of the Company or any right to vote, give or withhold consent to any
corporate action, receive notice of meetings, receive dividends or subscription
rights, or otherwise.
4.3 No Fractional Shares. No fractional share shall be
issued upon exercise of this Warrant. The Company shall, in lieu of issuing any
fractional share, pay Warrantholder a sum in cash equal to the fair market value
of such fraction on the date of exercise.
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4.4 Lock-Up. Warrantholder hereby agrees that it shall
not, without the consent of the managing underwriter, sell, transfer, pledge,
hypothecate or otherwise transfer or dispose of any Common Stock or other shares
of stock of the Company then owned by Warrantholder for up to 180 days following
the effective date of a registration statement (other than a registration
statements relating to any employee benefit plan, or with respect to a corporate
reorganization or other transaction under Rule 145 promulgated under the
Securities Act )of the Company for an initial public offering filed under the
Securities Act; provided, however, that all officers and directors of the
Company and all holders of Common Stock (or options or other rights to acquire
Common Stock) equal to at least 1% of the Company's voting securities (on a
fully-diluted basis) enter into similar agreements. In order to enforce the
foregoing covenant, the Company shall have the right to place restrictive
legends on the certificates representing the shares subject to this Section and
to impose stop transfer instructions with respect to the Common Stock and such
other shares of stock of Warrantholder.
4.5 Replacement. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will execute and deliver, in lieu
thereof, a new Warrant of like data and tenor.
4.6 Business Days. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or Sunday or shall be a legal holiday, then such action may
be taken or such right may be exercised on the next succeeding day not a legal
holiday.
4.7 Governing Law. This Warrant shall be governed by the
internal laws of the State of Georgia, as applied to contracts between residents
of Georgia and to be performed entirely within Georgia, without regard to the
application of conflict of law rules.
4.8 Agreement by Warrantholder. Receipt of this Warrant
by the holder hereof shall constitute acceptance of and agreement to the
foregoing terms and conditions.
5. Amendment. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively) with the
written consent of the Company and the holder hereof.
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IN WITNESS WHEREOF, Interland, Inc. has caused this Warrant to be
signed by its duly authorized officer.
INTERLAND, INC.
By:
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
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