Exhibit 4.11
7% CONVERTIBLE SUBORDINATED NOTES
DUE 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of March 10, 2000
by and among
INTERLIANT, INC.,
as the Company,
and
MICROSOFT CORPORATION,
as Purchaser
TABLE OF CONTENTS
Page
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SECTION 1. Definitions .................................. 1
SECTION 2. Shelf Registration Statement ................. 4
SECTION 3. Liquidated Damages ........................... 7
SECTION 4. Registration Procedures ...................... 8
SECTION 5. Registration Expenses ........................ 14
SECTION 6. Indemnification .............................. 15
SECTION 7. Underwritten Registration .................... 18
SECTION 8. Miscellaneous ................................ 18
i
This Registration Rights Agreement is made and entered into as of March 10,
2000 by and between INTERLIANT, INC., a Delaware corporation (the "Company"),
and, Microsoft Corporation, a Washington corporation (the "Purchaser"), which
has purchased $10,000,000 principal amount of 7% Convertible Subordinated Notes
due 2005 (the "Notes") of the Company.
This Agreement is made in connection with the Purchase Agreement, dated
March 10, 2000, between the Company and the Purchaser (the "Purchase
Agreement"). In order to induce the Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights provided
for in this Agreement to the Purchaser and its direct and indirect transferees
(i) for the benefit of the Purchaser, (ii) for the benefit of the holders from
time to time of the Notes (including the Purchaser), (iii) for the benefit of
the holders from time to time of the Common Stock issuable or issued upon
conversion of the Notes, and (iv) for the benefit of the holders from time to
time of the securities constituting the Transfer Restricted Securities (as
defined below). Each Holder (as defined below) by participating in a
Registration Statement agrees to be bound by this Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in this Section 1.
Affiliate:
An affiliate of any specified person shall mean any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
Closing Date: March 10, 2000.
Common Stock: Common Stock, $.01 par value per share, of the Company and
any other shares of common stock as may constitute "Common Stock" for purposes
of the Indenture as issuable or issued upon conversion of the Notes.
Company: Interliant, Inc., a Delaware corporation, and any successor
corporation thereto.
Controlling Person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the semi-annual interest payment dates
provided in the Notes.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 180th day following the Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Filing Date: The 90th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between the Company
and the Trustee, pursuant to which the Notes are to be issued, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
Liquidated Damages: As defined in Section 3(a) hereof.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Transfer Restricted Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
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Purchaser: As defined in the first paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date relating to any
shares of Common Stock as to which any such Liquidated Damages have accrued, the
registered Holder of such shares 15 days prior to the next succeeding Damages
Payment Date; and (ii) with respect to any Damages Payment Date relating to any
Notes as to which any such Liquidated Damages has accrued, the registered Holder
of such Notes 15 days prior to the next succeeding Damages Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of any of the
Transfer Restricted Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: The Notes, the shares of Common Stock into
which such Notes are converted or convertible (including any shares of Common
Stock issued or issuable thereon upon any stock split, stock combination, stock
dividend or the like), upon original issuance thereof and at all times
subsequent thereto, and associated related rights, if any, until the earliest of
(i) the date on which the resale thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
relating thereto, (ii) the date on which such security has been distributed to
the public pursuant to Rule 144 or is saleable pursuant to paragraph (k) of Rule
144 or (iii) the date on which it ceases to be outstanding.
Transfer Agent: The registrar and transfer agent for the Company's Common
Stock.
Trustee: The trustee under the Indenture.
References herein to the term "Holders of a majority in interest of
Transfer Restricted Securities" or words to a similar effect shall mean, with
respect to any request, notice, demand, objection or other action by the Holders
hereunder or pursuant hereto (each, an "Act"), registered Holders of a number of
shares of then outstanding Common Stock constituting Transfer Restricted
Securities and an aggregate amount of then outstanding Notes constituting
Transfer Restricted Securities, such that the sum of such shares of Common Stock
and the shares of Common Stock issuable upon conversion of such Notes
constitutes in excess of 50% of the sum of all of the then outstanding shares of
Common Stock constituting Transfer Restricted Securities and the number of
shares of Common Stock issuable upon conversion of then outstanding Notes
constituting Transfer Restricted Securities. For purposes of the preceding
sentence, Transfer Restricted Securities owned, directly or indirectly, by the
Company or its Affiliates shall be deemed not to be outstanding.
SECTION 2. Shelf Registration Statement.
(a) Subject to the other terms and conditions of this Agreement, the
Company agrees to file with the SEC as soon as reasonably practicable after the
Closing Date, but in no event later than the Filing Date, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Transfer Restricted Securities or separate Registration
Statements for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Common Stock and Notes constituting Transfer Restricted
Securities, respectively
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(such Registration Statement or Statements, collectively, the "Shelf
Registration Statement") Each Shelf Registration Statement shall be on Form S-3
under the Securities Act or another appropriate form selected by the Company
permitting registration of such Transfer Restricted Securities for resale by the
Holders in the manner or manners reasonably designated by Holders of a majority
in interest of Transfer Restricted Securities being sold. The Company shall not
permit any securities other than the Transfer Restricted Securities to be
included in any Shelf Registration Statement. The Company shall use all
reasonable efforts to cause each Shelf Registration Statement to be declared
effective pursuant to the Securities Act as soon as reasonably practicable
following the filing thereof and to use all reasonable efforts to keep such
Shelf Registration Statement continuously effective under the Securities Act,
subject to Section 2(d) hereof, for two years after the date on which all of the
Transfer Restricted Securities are sold (including those sold pursuant to the
option granted to the Purchaser in the Purchase Agreement) to the Purchaser (the
"Effectiveness Period"), or such shorter period ending when there cease to be
any Transfer Restricted Securities outstanding.
(b) Supplements and Amendments . The Company shall use all reasonable
efforts to keep each Shelf Registration Statement continuously effective by
supplementing and amending the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement, if required by the Securities Act or if
reasonably requested by the Holders of a majority in interest of the Transfer
Restricted Securities or by any underwriter of such Transfer Restricted
Securities.
(c) Selling Securityholder Information. Each Holder wishing to sell
Transfer Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to confirm such Holder's agreement to be bound by the
terms of this Agreement and to provide such information regarding such Holder
and the distribution of its Transfer Restricted Securities as is required by law
to be disclosed by the Holder in the applicable Registration Statement (such
agreement and information, the "Requisite Information") to the Company prior to
the effectiveness of the Shelf Registration Statement. The Company shall not be
required to include in any Shelf Registration Statement and related Prospectus
the Transfer Restricted Securities of any Holder that does not comply with the
preceding sentence in accordance with this Section 2(c). The Company shall file,
within five Business Days after the receipt of the Requisite Information with
respect to such Holder, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Registration Statement to include in the
Prospectus the Requisite Information as to such Holder (and the Transfer
Restricted Securities held by such Holder), and the Company shall provide such
Holder within five Business Days after receipt of such Requisite Information
with a copy of such Prospectus as so amended or supplemented containing the
Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Holder's Transfer Restricted
Securities and to file the same with the SEC. Each Holder shall promptly notify
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the Company of any material changes to the Requisite Information provided to the
Company by such Holder. Subject to the other terms and conditions of this
Agreement (i) if the Company shall fail to file the appropriate supplement or
amendment within five Business Days of receipt of such notice (except where such
failure to file is due to the objection to filing any such amendment or
supplement by the holders of a majority in interest of the Transfer Restricted
Securities, or the managing underwriters, if any, pursuant to Section 4(a)), the
Company shall pay the Holder Liquidated Damages in the manner set forth in
Section 3, and (ii) if the filing requires a post-effective amendment to the
Registration Statement and such amendment is not declared effective within 45
Business Days of the filing of the post-effective amendment, the Company shall
pay the Holder Liquidated Damages in the manner set forth in Section 3.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require, in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Holder in such
Registration Statement at the time subsequent to the time that such reference
ceases to be required and the Company otherwise intends to amend our supplement
the Shelf Registration Statement.
(d) Material Events; Suspension of Sales. Notwithstanding the provisions
contained in this Section 2, in the event that, in the judgment of the Company's
Board of Directors, it is advisable to suspend use of the Prospectus due to
pending corporate developments, public filings with the SEC or similar events,
the Company shall promptly deliver a written certificate to each registered
Holder, the Trustee, the Transfer Agent and the managing underwriters, if any,
to the effect that the use of the Prospectus is to be suspended until the
Company shall deliver a written notice that the use of the Prospectus may be
resumed. Thereafter, the use of the Prospectus shall be suspended, and the
Company shall not be required to maintain the effectiveness of, or amend or
update the Shelf Registration Statement, or amend or supplement the Prospectus;
provided, however, that the Company shall only be permitted to suspend the use
of the Prospectus for a period not to exceed 30 days in any six-month period or
two periods not to exceed an aggregate of 60 days in any 12-month period. The
Company will use its best efforts to ensure that the use of the Prospectus may
be resumed as soon as, in the judgment of the Company's Board of Directors,
disclosure of the material relating to such pending development, filing or event
would not have a material adverse effect on the Company.
(e) Additional Agreements of Holders. Each Holder agrees not to dispose of
Transfer Securities pursuant to the Shelf Registration Statement
without complying with the prospectus delivery requirements under the Act and
the provisions of paragraph (d) above regarding use of the Prospectus. Each
Holder further agrees that it will comply fully with applicable federal and
state securities laws in connection with the distribution of any Transfer
Restricted
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Securities pursuant to the Shelf Registration Statement. Each Holder further
acknowledges having been advised by the Company that applicable federal
securities laws prohibit Holders from trading in securities of the Company at
any time while in possession of material non-public information about the
Company.
SECTION 3. Liquidated Damages.
(a) The Company and the Purchaser agree that the Holders will suffer
damages if the Company fails to fulfill its obligations pursuant to Section 2
hereof and that it would not be possible to ascertain the extent of such
damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder under the circumstances and to the extent
set forth below:
(i) if the Shelf Registration Statement has not been filed with the
SEC on or prior to the Filing Date; or
(ii) if each Shelf Registration Statement is not declared effective by
the SEC on or prior to the applicable Effectiveness Target Date; or
(iii) any Shelf Registration Statement ceases to be effective or
usable at any time during the Effectiveness Period (without being succeeded
on the same day immediately by a post-effective amendment or supplement to
such Registration Statement that cures such failure and that is itself, in
the case of post- effective amendment, immediately declared effective) for
a period of time which shall exceed 90 days in the aggregate in any period
of 365 consecutive days,
unless, and except to the extent that, with respect to any failure set forth in
clause (i), (ii) or (iii) above, such failure is due to the Company's compliance
with the provisions of Section 8(b) or 8(c) hereof (any of the foregoing,
subject to the immediately preceding qualifications, a "Registration Default").
In the event of a Registration Default, the Company will pay Liquidated
Damages to each holder of Transfer Restricted Securities, during the first 90-
day period immediately following the occurrence of such Registration Default in
an amount equal to $0.05 per week per $1,000 principal amount of Notes adjusted
to an equivalent per share basis in accordance with the conversion price. The
rate of accrual of the Liquidated Damages will increase by $0.05 per week per
$1,000 principal amount of Notes or Common Stock constituting Transfer
Restricted Securities (adjusted to an equivalent per share basis in accordance
with the conversion price for Common Stock constituting Transfer Restricted
Securities) for each subsequent 90-day period until the applicable Registration
Statement is filed, the applicable Registration Statement is declared effective
and becomes available for effecting sales of securities, or the Shelf
Registration Statement again becomes effective and becomes available for
effecting sales of securities, as
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the case may be, up to a maximum amount of Liquidated Damages of $0.25 per week
per $1,000 principal amount of Notes adjusted to an equivalent per share basis
in accordance with the conversion price. Following the cure of a Registration
Default, Liquidated Damages will cease to accrue with respect to such
Registration Default (without in any way limiting the effect of any subsequent
Registration Default). All accrued Liquidated Damages shall be paid to the
holders of (i) Notes constituting Transfer Restricted Securities, pursuant to
the terms of the Indenture with respect to the payment of interest and (ii)
shares of Common Stock, in the manner as interest payments on the Notes on
semiannual payment dates that correspond to interest payment dates for the
Notes. The parties hereto agree and acknowledge that the payment of Liquidated
Damages to holders of Common Stock upon a Registration Default pursuant to this
Agreement shall not be a dividend on such shares of Common Stock.
(b) The Company shall notify the Transfer Agent or the Trustee, as the case
may be, within five Business Days after each and every date on which a
Registration Default occurs. Liquidated Damages , as calculated by the Company,
shall be paid by the Company to the Record Holders of Common Stock on each
Damages Payment Date by wire transfer of immediately available funds to the
accounts specified by them or by mailing checks to their registered addresses as
they appear in the register of the Company for the Common Stock, if no such
accounts have been specified in the Notice and Questionnaire on or before the
Damages Payment Date; and Liquidated Damages shall be paid by the Company to the
Record Holders of the Notes on each semi-annual interest payment date together
with interest to be paid on the Notes pursuant to the terms of the Indenture, by
wire transfer of immediately available funds to the accounts specified by them
or by mailing checks to their registered addresses as they appear in the Notes
Register (as defined in the Indenture) if no such accounts have been specified
in the Notice and Questionnaire on or before the Damages Payment Date; provided,
however, that any Liquidated Damages accrued with respect to any Notes or
portion thereof called for redemption on a redemption date, repurchased on a
repurchase date, or converted into shares of Common Stock on a conversion date
prior to the Damages Payment Date shall, in any such event, be paid instead to
the Holder who submitted such Notes or portion thereof for redemption,
repurchase or conversion on the applicable redemption date, repurchase date or
conversion date, as the case may be, on such date.
SECTION 4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the filing of any amendment or supplement thereto (excluding, unless
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requested, any document that would be incorporated or deemed to be incorporated
therein by reference and then only to the Holder who so requested), furnish to
the Holders whose Transfer Restricted Securities are required to be included in
such Registration Statement or Prospectus pursuant to Section 2(c) hereof and
the managing underwriters, if any, copies of all such documents proposed to be
filed (excluding, unless requested, those incorporated or deemed to be
incorporated by reference and then only to the Holder who so requested) and
cause the officers and directors of the Company, counsel to the Company and
independent certified public accountants to the Company to respond to such
inquiries as shall be necessary in connection with such Registration Statement,
in the opinion of counsel to the underwriters, if any, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holders of a majority in interest of the
Transfer Restricted Securities or the managing underwriters, if any, shall
reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments, including post-effective
amendments, to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable time period set
forth in Section 2(a) hereof; subject to Section 2(d) hereof, cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended method
or methods of disposition by the Holder set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented (including, without
limitation, the filing of any Prospectus supplement pursuant to Rule 424 in
order to add or change any selling security holder information (including any
such supplements or amendments pursuant to Section 2(c) hereof, provided such
Holder to which such change applies complies with the Requisite Information
requirements of Section 2(c) hereof).
(c) Notify the Holders and the managing underwriters, if any, promptly (and
in the case of an event specified by clause (i) of this paragraph in no event
fewer than two Business Days prior to such filing), and (if requested by any
such person), confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed, and,
with respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request of the SEC or any other
Federal or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto, (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of the
Registration Statement
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or the initiation of any proceedings for that purpose, (iv) if at any time any
of the representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated by Section 4(m) hereof are
not true and correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Transfer Restricted Securities for
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, and (vi) of the existence of any fact and the happening of any
event that makes any statement made in such Registration Statement or related
Prospectus untrue in any material respect, or that requires the making of any
changes in such Registration Statement or Prospectus so that in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and that, in the case of
the Prospectus, such Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) Use all reasonable efforts to avoid the issuance of, or, if issued, to
obtain the withdrawal of any stop order or order enjoining or suspending the use
or effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) If requested by the managing underwriters, if any, or the Holders of a
majority in interest of the Transfer Restricted Securities being sold in
connection with such offering, promptly include in a Prospectus supplement or
post-effective amendment such information as the managing underwriters, if any,
and such Holders agree should, in their reasonable judgment, be included
therein, and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the Company has
received notification of the matters to be included in such Prospectus
supplement or post-effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this Section 4(e) that, in
the opinion of counsel for the Company, would violate applicable law;
(f) Furnish to each Holder who so requests and each managing underwriter,
if any, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements (but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits, unless requested in writing by such
Holder or any managing underwriter);
(g) Deliver to each Holder and the underwriters, if any, without charge, as
many copies of the Prospectus or Prospectuses (including each form of
Prospectus) and each amendment or supplement thereto to as such persons may
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reasonably request; and, unless the Company shall have given notice to such
Holder pursuant to Section 2(d), the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities and the underwriters, if any, in
connection with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto, provided,
however, that no Holder shall be entitled to use the Prospectus unless and until
such Holder shall have furnished to the Company any and all Requisite
Information pursuant to Section 2(c) hereof;
(h) Use all reasonable efforts to register or qualify, or cooperate with
the Holders of Transfer Restricted Securities to be sold or tendered for, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Transfer Restricted Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary legally to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified, take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which certificates shall
not bear any restrictive legends, shall bear a CUSIP number different from the
CUSIP number for the Transfer Restricted Securities and shall be in a form
eligible for deposit with The Depository Trust Company and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the managing underwriters, if any, or Holders may reasonably request at least
two Business Days prior to any sale of Transfer Restricted Securities;
(j) Use all reasonable efforts to cause the offering of the Transfer
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required as a consequence of the nature of a Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals as may be reasonably necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such Transfer
Restricted
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Securities; provided, however, that the Company shall not be required to
register the Transfer Restricted Securities in any jurisdiction that would
require the Company to qualify to do business in any jurisdiction where it is
not then so qualified, subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject or to;
(k) Upon the occurrence of any event contemplated by Section 4(c) (vi)
hereof, as promptly as reasonably practicable (subject to any suspension of
sales pursuant to Section 2(d) hereof), prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, to provide a CUSIP number for
the Transfer Restricted Securities to be sold pursuant to the Registration
Statement;
(m) Enter into such agreements (including any underwriting agreements in
form, scope and substance as are customary in underwritten offerings) reasonably
satisfactory to the Company and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the Holders of a majority in interest of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the sale of
such Transfer Restricted Securities; provided, however, that the Company is not
required to facilitate an underwritten offering without its consent. In such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration, the Company will: (i)
make such representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to the business
of the Company and its subsidiaries (including with respect to businesses or
assets acquired or to be acquired by any of them), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in underwritten offerings and
reasonably acceptable to the Company, and confirm the same if and when
requested; (ii)seek to obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, addressed to each
selling Holder of Transfer Restricted Securities and each of the underwriters,
if any, covering the matters customarily covered in opinions requested in
underwritten offerings (including any such matters as may be reasonably
requested by such underwriters); (iii) use all reasonable efforts to obtain
customary "cold comfort" letters and updates
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thereof from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed (where reasonably possible) to each
selling Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to the
selling Holders of Transfer Restricted Securities and the underwriters, if any,
than those set forth in Section 6 hereof (or such other provisions and
procedures acceptable to Holders of a majority in interest of the Transfer
Restricted Securities covered by such Registration Statement and the managing
underwriters); and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of majority interest of the Transfer
Restricted Securities being sold or the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) of this Section 4(m) and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(n) Make available for inspection by a representative of the Holders of
Transfer Restricted Securities being sold, any underwriter participating in any
such disposition of Transfer Restricted Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as they may reasonably request, and cause the officers,
directors, agents and employees of the Company and its subsidiaries to supply
all information in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Registration Statement, provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery or inspection (as the case may be) of such information shall be kept
confidential by such persons, unless (i) in the reasonable opinion of the
Company or its counsel, disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) in the reasonable opinion of the Company or its counsel,
disclosure of such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with the filing
of any Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard by any such person or (iv) such information
becomes available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement.
13
(o) Use all reasonable efforts to cause the Indenture to be qualified under
the TIA, to the extent such qualification is required by applicable law, not
later than the effective date of the first Registration Statement relating to
the Transfer Restricted Securities; and in connection therewith, cooperate with
the Trustee and the Holders of Notes or Common Stock constituting Transfer
Restricted Securities to effect such changes to the Indenture, if any, as may be
required for such Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its best efforts to cause the Trustee to execute,
all customary documents as may be required to effect such changes, and all other
forms and documents (including Form T-1) required to be filed with the SEC to
enable the Indenture to be so qualified under the TIA in a timely manner.
(p) Comply with applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act or Rule 158 (or any similar
rule promulgated under the Securities Act), no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12- month period if such
period is a fiscal year) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter after the
effective date of a Registration Statement, which statement shall cover said
period, consistent with the requirements of Rule 158; and
(q) (i) list all shares of Common Stock covered by any Registration
Statements on any securities exchange on which the Common Stock is then listed
or (ii) authorize for quotation on the SmallCap Market or the National Market of
the National Association of Securities Dealers Automated Quotation System
("Nasdaq") all Common Stock covered by all such Registration Statements if the
Common Stock is then so authorized for quotation.
SECTION 5. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are offered or sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filings
fees (including, without limitation, fees and expenses with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and in compliance with securities or Blue Sky laws (including, without
limitation and in addition to that provided for in this Section 5, fees and
disbursements of counsel for the underwriters in connection with Blue Sky
qualifications of the Transfer Restricted Securities and determination of the
eligibility of the Transfer Restricted Securities for investment under the laws
of such jurisdictions as the managing underwriters, if any, or Holders of a
majority in interest of Transfer Restricted Securities, may designate)), (ii)
printing expenses (including, without limitation, of printing Prospectuses if
the printing of Prospectuses is required by the
14
managing underwriters, if any, or by the Holders of a majority in interest of
the Transfer Restricted Securities included), (iii) messenger, telephone and
delivery expenses, (iv) reasonable fees and disbursements of counsel for the
Company (plus any local counsel deemed appropriate by the Holders of a majority
in interest of the Transfer Restricted Securities) in accordance with the
provisions of this Section 5 hereof, (v) fees and disbursements of all
independent certified public accountants referred to in Section 4(m)(iii)
(including, without limitation, the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi) fees and expenses of
all other persons retained by the Company. In addition, the Company shall pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of an annual audit and the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange or the
Nasdaq SmallCap Market or the Nasdaq National Market. Notwithstanding anything
in this Agreement to the contrary, each Holder shall pay all underwriting
discounts and brokerage commissions with respect to any Transfer Restricted
Securities sold by it.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of (i) the
Purchaser, (ii) each Holder, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any of the foregoing (any of the persons referred to in this clause (iii) being
hereinafter referred to as a "controlling person"), and (iv) the respective
officers, directors, partners, employees, representatives and agents of the
Purchaser, the Holders (including predecessor Holders), or any controlling
person (any person referred to in clause (i), (ii), (iii) or (iv) may
hereinafter be referred to as an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities, expenses and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary Prospectus, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or supplement
thereto, in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities,
expenses or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Indemnified Person furnished to the Company by or on behalf of such Indemnified
Person expressly for use therein (which shall include, without limitation, the
Requisite Information provided to the Company by such Indemnified Person);
provided, however, that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Indemnified Person from whom
the person asserting such losses, claims, damages, liabilities, expenses and
judgments purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary Prospectus is eliminated
or remedied in the Prospectus and a copy of
15
the Prospectus shall not have been furnished to such person in a timely manner
due to the wrongful action or wrongful inaction of such Indemnified Person,
whether as a result of negligence or otherwise.
(b) In case any action shall be brought against any Indemnified Person,
based upon any Registration Statement or any such Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against the
Company, such Indemnified Person shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person,
unless the employment of such counsel shall have been specifically authorized in
writing by the Company, the Company shall have failed to assume the defense and
employ counsel or such Indemnified Person or Persons shall have been advised by
counsel that there may be a conflict between the positions of the indemnifying
party or parties and of the indemnified party or parties in conducting the
defense of such action or proceeding or that there may be legal defenses
available to such Indemnified Person or Persons different from or in addition to
those available to the indemnifying party or parties (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred). The Company shall not be liable for any settlement of any
such action effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(c) In connection with any Registration Statement pursuant to which any
Holder (or predecessor Holder) sold or offered for resale Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers, employees, representatives and
agents and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Indemnified Person but only
with
16
reference to information relating to such Indemnified Person furnished by or on
behalf of such Indemnified Person expressly for use in such Registration
Statement (which shall include, without limitation, the Requisite Information
provided to the Company by such Indemnified Person). In case any action shall be
brought against the Company, any of its directors, officers, employees,
representatives and agents, or any person controlling the Company based on such
Registration Statement and in respect of which indemnity may be sought against
any Indemnified Person, the Indemnified Person shall have the rights and duties
given to the Company (except that if the Company shall have assumed the defense
thereof, such Indemnified Person shall not be required to do so, but may employ
separate counsel therein and participate in defense thereof but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person),
and the Company, its directors, officers, employees, representatives and agents,
and any person controlling the Company shall have the rights and duties given to
the Indemnified Person by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is applicable by
its terms but unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities, expenses or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, expenses and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Indemnified Person on the other hand pursuant
to the Purchase Agreement or from the offering for resale of the Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and each such Indemnified Person in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and each such Indemnified
Person shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or such Indemnified
Person and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Indemnified Person were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, expenses or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
17
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the total net profit received by it in connection with the sale
of the Transfer Restricted Securities pursuant to this Agreement exceeds the
amount of any damages which such Indemnified Person has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any such
Registration Statement by each Indemnified Person and not joint.
SECTION 7. Underwritten Registration. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be investment bankers of
recognized national standing selected by the Holders of a majority in interest
of such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder unless
such person agrees to sell such person's Transfer Restricted Securities on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably required under the
terms of such underwriting arrangements.
SECTION 8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any
of their respective obligations under this Agreement, each Holder or the
Company, in addition to being entitled to exercise all rights granted by law,
including, without limitation, recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate. This Section 8(a) shall not apply to any breach
for which Liquidated Damages have been specifically provided hereunder.
(b) No Inconsistent Agreements. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
18
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company is not currently a party to any agreement
granting any registration rights with respect to any of its securities to any
person which at the date hereof conflicts with the Company's obligations
hereunder. Without limiting the generality of the foregoing, without the written
consent of the Holders of a majority in interest of the Transfer Restricted
Securities, the Company shall not grant to any person the right to request it to
register any of its securities under the Securities Act unless the rights so
granted are subject in all respects to the prior rights of the Holders set forth
herein, and are not otherwise in conflict or inconsistent with the provisions of
this Agreement. The Company, the Purchaser and each Holder acknowledge that the
rights granted hereunder to the Purchaser and the Holders are subject in all
respects to the prior rights of the "Holders," as defined in the Registration
Rights Agreement, dated as of February 16, 2000, by and among the Company and
certain other parties thereto, under such Registration Rights Agreement.
(c) No Adverse Action Affecting the Transfer Restricted Securities. The
Company will not take any action with respect to the Transfer Restricted
Securities which would adversely affect the ability of any of the Holders to
include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.
(d) No Piggyback on Registrations. After the date hereof, the Company shall
not grant to any of its security holders (other than the Holders in such
capacity) the right to include any of its securities in any Shelf Registration
Statement. The Company, the Purchaser and each Holder acknowledge that the
Transfer Restricted Securities may not be included in a "Shelf Registration
Statement," as defined in the Registration Rights Agreement referred to in
paragraph (b) above.
(e) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof, may not be given,
without the written consent of the Holders of a majority in interest of the
Transfer Restricted Securities; provided, however, that, for the purposes of
this Agreement, Transfer Restricted Securities that are owned, directly or
indirectly, by either the Company or an Affiliate of the Company are not deemed
outstanding. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being sold pursuant
to an underwritten offering and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in interest of the
Transfer Restricted Securities being sold by such Holders pursuant to such an
underwritten offering; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
19
(f) Notices. All notices and other communications provided for herein shall
be made in writing by hand-delivery, next day air courier, certified first-class
mail, return receipt requested or telecopy:
(i) if to the Purchaser to:
Microsoft Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Attn: General Counsel, Finance and Operations
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to a Holder other than the Purchaser, to the address of such
Holder as it appears in the Requisite Information, or, if not so specified,
in the Common Stock or Notes register of the Company, as applicable;
(iii) if to the Company, to:
Interliant, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy No.: 914-640-9000
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given, when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier, five Business Days after being deposited in the mail, postage prepaid,
if mailed; and when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each existing and future Holder. The Company
may not assign its rights or obligations hereunder without the prior written
consent of the Holders of a majority in interest of the Transfer Restricted
Securities, other than by operation of law pursuant to a merger or consolidation
to which the Company is a party.
(h) Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
20
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(j) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(l) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
21
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
INTERLIANT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
The foregoing Registration Rights
Agreement is hereby confirmed
and agreed to as of the date
first written above.
MICROSOFT CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title:
22
