EXHIBIT 10.1
AGREEMENT
This Agreement ("AGREEMENT") is entered into by and between Interland,
Inc., a Minnesota corporation ("INTERLAND") and ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
("▇▇. ▇▇▇▇▇▇").
RECITALS
WHEREAS, the ▇▇. ▇▇▇▇▇▇ is the holder of certain options to purchase the
common stock of Interland having an exercise price substantially higher than the
current price of Interland's common stock (as more particularly defined in
Section 1 of this Agreement, the "UNDERWATER OPTIONS");
WHEREAS, the ▇▇. ▇▇▇▇▇▇'▇ right to exercise the Underwater Options expires
on or about August 31, 2006;
WHEREAS, the market price for Interland common stock from November 22, 2004
to November 22, 2005 has ranged from a high of approximately $4.08 per share to
a low of approximately $1.79 per share and the ▇▇. ▇▇▇▇▇▇ has conducted an
independent review of the value of the Underwater Options and has concluded that
the Underwater Options have virtually no value and, in reaching such conclusion,
the ▇▇. ▇▇▇▇▇▇ has relied solely on its own research and evaluation of the
prospects of Interland's common stock and has not relied on any information,
representations, warranties or inducements of any kind provided by Interland;
WHEREAS, in order to liquidate his interests in the Underwater Options ▇▇.
▇▇▇▇▇▇ has requested Interland to enter into this Agreement in order to cancel
the Underwater Options;
ACCORDINGLY, in consideration of the foregoing recitals, the promises
contained herein, and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the Parties hereto agree as follows:
1. CANCELLATION OF UNDERWATER OPTIONS.
In consideration of One Dollar ($1.00) in hand paid ▇▇. ▇▇▇▇▇▇ agrees that
the options for the purchase of Interland common stock summarized below (the
"UNDERWATER OPTIONS") shall be, and hereby are, duly cancelled and of no further
force and effect:
NUMBER OF SHARES PORTION OF OPTION
GRANT DATE GOVERNING PLAN UNDERLYING OPTION GRANT* EXERCISE PRICE* CURRENTLY OUTSTANDING*
========== ============ ================= ========================== ================ =======================
1. 1/13/1998 1995 Plan 5,551.500 $90.0000 5,551.500
2. 1/13/1998 1995 Plan 34,448.500 $90.0000 34,448.500
3. 1/13/1998 1995 Plan 10,000.000 $90.0000 10,000.000
4. 1/13/1998 No Plan 7,500.000 $90.0000 7,500.000
5. 1/13/1998 No Plan 7,500.000 $90.0000 7,500.000
6. 8/17/2000 2001 Plan 48,895.000 $39.4000 48,895.000
7. 8/17/2000 2001 Plan 2,539.900 $39.4000 2,539.900
8. 1/15/2002 1995 Plan 100,000.000 $21.4000 100,000.000
TOTAL: 216,434.90
* All numbers reflect adjustment for the Company's August 2003 1-for-10
reverse stock split where appropriate.
2. RELEASES.
(a) ▇▇. ▇▇▇▇▇▇ hereby releases forever and irrevocably discharges all
claims, rights, causes of actions, suits, matters and issues, whether known or
unknown, concealed or hidden, suspected or unsuspected, related in any way to
the Underwater Options that have been or could have been asserted against
Interland or its present and former parent, subsidiary or affiliated
corporations, divisions, successors and assigns, employees, officers, directors,
agents, accountants, counsel, brokers, and anyone actually or allegedly
associated with Interland or acting on its behalf from the beginning of time to
the Effective Date.
(b) Nothing herein is intended to release any rights or obligations that
exist under this Agreement, any claims that arise out of the implementation or
enforcement of this Agreement.
3. NO RELIANCE.
▇▇. ▇▇▇▇▇▇ expressly acknowledges and agrees that (a) he is an "accredited
investor" as defined in Regulation D of the Securities Act of 1934, (b) he has
developed his opinion as to the value of its Underwater Options and the
advisability of the transactions contemplated by this Agreement on its own and
without relying in any manner whatsoever upon any information, representations,
warranties or inducements given by Interland or any of its directors, officers
or other representatives, and (c) Interland may be in possession of information
that is not known to ▇▇. ▇▇▇▇▇▇ or to the public which information may be
material to reasonable investors in the stock of Interland and that any such
information would have no effect on the decision of ▇▇. ▇▇▇▇▇▇ to enter into the
transactions contemplated by this Agreement.
4. NO ADMISSION OR COLLATERAL ESTOPPEL EFFECT.
Nothing in this Agreement constitutes an admission, declaration, or other
evidence of the rights or liabilities of any Person, except with respect to the
contractual duties and stipulations provided in this Agreement itself. Every
party heretofore alleged to be liable to any other party has denied liability
for any claim or threatened claim encompassed by this Agreement. Neither this
Agreement nor any action taken to carry out this Agreement: (a) shall be
construed as or deemed to be evidence of any presumption, inference, concession
or admission on any point of fact or law, or any liability, fault, omission or
other wrongful act whatsoever; (b) shall be offered or received as evidence in
any litigation or proceeding whatsoever of any presumption, inference,
concession or admission of any liability, fault, omission or other wrongful act
whatsoever; or (c) shall be offered or received as evidence in any action or
proceeding whatsoever other than such proceeding by the parties hereto as may be
necessary to enforce the provisions of this Agreement or in response to a
subpoena or other legal process.
5. MISCELLANEOUS.
5.1 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
5.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may only be amended through a written document signed by both parties.
5.3 SEVERABILITY. If a provision of this Agreement or the application
thereof to any person or circumstance shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions
hereof, or the application thereof to persons or circumstances other than those
to which it is held invalid or unenforceable, shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by applicable
law.
5.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws, and not the conflicts of laws principles, of
the State of Minnesota.
5.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures on all counterparts were
on the same instrument.
5.6 FEES AND EXPENSES. Except as otherwise provided herein, each party
hereto shall bear its own fees and expenses incurred in connection with the
transactions contemplated by this Agreement.
5.7 EFFECTIVE DATE. The Effective Date shall be the date as of which this
Agreement has been duly executed by all of the parties and such executed
Agreement has been delivered to Interland.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement or caused it to be executed and delivered by their respective
authorized signatories whose names and signatures appear below as of the
Effective Date.
INTERLAND, INC.. ▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Signature /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Print Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Date 12-6-05
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Title Chief Executive Officer
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Date 12-6-05
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