EXHIBIT 10.55
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of March 8, 2002, among
INTERLIANT, INC., a Delaware corporation (the "Company") and the INVESTORS (as
hereinafter defined).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Investors have entered into a Securities
Purchase Agreement (the "Purchase Agreement"), dated as of March 8, 2002,
------------------
pursuant to which the Company will issue and sell to the Investors, and the
Investors will purchase from the Company, Convertible Notes (as such term is
defined in the Purchase Agreement) in the aggregate principal amount of
$10,000,000 and warrants (the "Warrants") to purchase shares of the Company's
--------
Common Stock, par value $.01 per share (the "Common Stock"); and
------------
WHEREAS, in order to induce the Investors to enter into the Purchase
Agreement (and to purchase such Convertible Notes and Warrants) the Company has
agreed to provide certain registration rights with respect thereto;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Definitions. The following terms shall have (unless other wise
-----------
provided elsewhere in this Registration Rights Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"Charter Investors" means Charterhouse Equity Partners III, L.P. and
-----------------
Chef Nominees Limited.
"Charter Registration Request" has the meaning given to it in Section
----------------------------
2(a).
"Commission" means the United States Securities and Exchange
----------
Commission.
"Common Stock" has the meaning given to it in the recitals hereto.
------------
"Convertible Notes" has the meaning given to it in the Purchase
-----------------
Agreement.
"Demand Investor" has the meaning given in Section 3(c)(i).
---------------
"Investors" means the Charter Investors and the Mobius Investors.
---------
"Maximum Offering Size" has the meaning given to it in Section 2(d).
---------------------
"Mobius Investors" means the entities set forth on the signature page
----------------
hereto under the caption "Mobius Investors".
"Mobius Registration Request" has the meaning given to it in Section
---------------------------
2(a).
"NASD" means the National Association of Securities Dealers, Inc., or
----
any successor corporation thereto.
"Parity Piggyback Registration Securities" means those securities of
----------------------------------------
the Company that have "Piggyback Registration Rights" pursuant to the
Registration Rights Agreement dated as of January 27, 2000 among the Company and
the other parties thereto.
"PIK Notes" means the additional Convertible Notes issueable in lieu of
---------
cash interest payments on the Convertible Notes.
"Purchase Agreement" has the meaning given to it in the recitals
------------------
hereto.
"Registering Security Holder" has the meaning given to it in Section 3.
---------------------------
"Registrable Securities" means, collectively, (i) the shares of Common
----------------------
Stock issuable upon conversion of the Convertible Notes or the PIK Notes, (ii)
any shares of Common Stock issuable upon exercise of Warrants, (iii) any shares
of Common Stock hereafter acquired by the Investors (excluding any shares of
Common Stock acquired by any Investor prior to the date hereof) or (iv) any
shares of Common Stock hereafter distributed to the Investors by the Company as
a stock dividend, stock split, recapitalization, reclassification or otherwise
with respect to the Convertible Notes, the PIK Notes, the Warrants or the shares
of Common Stock covered by clauses (i) (ii) or (iii) above; provided, however,
that any such securities shall cease to be Registrable Securities when (i) such
securities shall have been registered under the Securities Act, the registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of pursuant to such effective registration statement, (ii) such securities shall
have been otherwise transferred, if new certificates or other evidences of
ownership for them not bearing a legend restricting further transfer and not
subject to any stop transfer order or other restrictions on transfer shall have
been delivered by the Company and subsequent disposition of such securities
shall not require registration or qualification of such securities under the
Securities Act or any state securities law then in force, (iii) such securities
shall cease to be outstanding or (iv) such securities shall be eligible for sale
pursuant to Rule 144(k) under the Securities Act or any successor rule which
permits resale of such securities without restriction.
"Securities Act" has the meaning given to it in Section 2(a).
--------------
"Warrants" has the meaning given to it in the recitals hereto.
--------
2. Required Registration. (a.) Upon receipt of a written request (x)
---------------------
from the Charter Investors (a "Charter Registration Request") or (y) from the
Mobius Investors (a "Mobius Registration Request" and, collectively with a
Charter Registration Request, a "Registration
Request"), requesting that the Company effect the registration of Registrable
Securities under the Securities Act of 1933, as amended (the "Securities Act"),
the Company shall, as expeditiously as is possible, use its best efforts to
effect the registration under the Securities Act of all shares of Registrable
Securities which the Company has been so requested to register by the Charter
Investors or the Mobius Investors, as applicable; provided, however, that,
subject to the provisions of the immediately following sentence, the Company
shall not be required to effect more than four registrations of Registrable
Securities on Form S-1 or Form S-2 pursuant to this Section 2 for the Charter
Investors or more than four registrations of Registrable Securities on Form S-1
or Form S-2 pursuant to this Section 2 for the Mobius Investors. The Company
shall be obligated to file an unlimited number of registration statements on
Form S-3 (or any successor form) pursuant to any request therefor received from
a Charter Investor or a Mobius Investor so long as the Company is eligible to
use such form of registration statement. In order to count as an "effected"
registration statement, such registration statement shall not have been
withdrawn and all Registrable Securities registered pursuant to it (excluding
any overallotment shares) shall have been sold. The Company shall have the right
to defer the filing of any registration statement requested pursuant to this
Section 2 for a period not to exceed ninety (90) days if in the good faith
determination of the Board of Directors of the Company the filing of such
registration statement would be seriously detrimental to the Company.
(b) If the Charter Investors or the Mobius Investors, as applicable,
shall have delivered a Registration Request to the Company, the Company shall
give written notice thereof to the Charter Investors (in the case of a Mobius
Registration Request) and the Mobius Investors (in the case of a Charter
Registration Request) at least 20 days before the initial filing with the
Commission of the Registration Statement relating thereto, which notice shall
set forth the intended method of disposition of the securities proposed to be
registered by the Company. The notice shall offer to include in such filing the
aggregate number of shares of Registrable Securities as the Charter Investors
(in the case of a Mobius Registration Request) or the Mobius Investors (in the
case of a Charter Registration Request) may request. If the Charter Investors
(in the case of a Mobius Registration Request) or the Mobius Investors (in the
case of a Charter Registration Request) shall desire to have Registrable
Securities registered under this Section 2(b), they shall advise the Company in
writing within 10 days after the date of receipt of such offer from the Company,
setting forth the amount of such Registrable Securities for which registration
is requested. The Company shall thereupon include in such filing the number of
shares of Registrable Securities for which registration is so requested, subject
to Section 2(d)(i), and shall use its best efforts to effect registration under
the Securities Act of such shares.
(c) Underwriters. The managing underwriter or underwriters of any
public offering effected pursuant to this Section 2 shall be reasonably
acceptable to the Charter Investors (in the case of a Charter Registration
Request) or the Mobius Investors (in the case of a Mobius Registration Request)
and the Company.
(d) Priority in Requested Registration. If the managing underwriter of
a registration pursuant to this Section 2 shall advise the Company in writing
that, in its view, the number or proposed mix of securities requested to be
included in such registration (including securities which the Company requests
to be included ) exceeds the largest number of securities which can be sold
without having a material adverse effect on such offering (the "Maximum Offering
Size"), including the price at which such securities can be sold, the Company
will include in such registration:
(i) first, the Registrable Securities requested to be
included in such registration by the Charter Investors or by
the Mobius Investors, as applicable, pursuant to Section 2(a),
and the Registrable Securities requested to be included in
such registration by the Charter Investors (in the case of a
Mobius Registration Request) or the Mobius Investors (in the
case of a Charter Registration Request) pursuant to Section
2(b), allocated (if necessary) pro rata among the Charter
Investors and the Mobius Investors on the basis of the
relative number of Registrable Securities each of the Charter
Investors and the Mobius Investors, as applicable, has
requested to be included in such registration;
(ii) second, securities of the Company to be sold for
the account of the Company; and
(iii) third, securities of the Company to be sold for
the account of other persons, with such priorities among them
as the Company shall determine.
3. Incidental Registration.
-----------------------
(a) If the Company at any time proposes to file on its behalf and/or on
behalf of any of its security holders (the "Registering Security Holders") a
Registration Statement under the Securities Act on any form (other than a
Registration Statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of the Company pursuant to any employee benefit
plan, respectively) for the registration of shares of Common Stock of the
Company, it will give written notice to all holders of Registrable Securities at
least 30 days before the initial filing with the Commission of such Registration
Statement, which notice shall set forth the intended method of disposition of
the securities proposed to be registered by the Company. The notice shall offer
to include in such filing the aggregate number of shares of Registrable
Securities as such holders may request.
(b) Each holder of any such Registrable Securities desiring to have
Registrable Securities registered under this Section 3 shall advise the Company
in writing within 20 days after the date of receipt of such offer from the
Company, setting forth the amount of such Registrable Securities for which
registration is requested. The Company shall thereupon include in such filing
the number of shares of Registrable Securities for which registration is so
requested, subject to Section 3(c), and shall use its best efforts to effect
registration under the Securities Act of such shares.
(c) Priority In Incidental Registrations. If the managing underwriter
of a registration pursuant to this Section 3 shall advise the Company in writing
that, in its view, the number or mix of securities (including all Registrable
Securities) which the Company, the Charter Investors, the Mobius Investors and
any other persons intend to include in such registration exceeds the Maximum
Offering Size:
(i) If such registration was initiated by the
Company, and not by any other shareholder holding demand
registration rights (a "Demand Investor"), then the Company
will include in such registration, in the priority listed
below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be
sold for the account of the Company;
(B) second, (x) the Registrable Securities
requested to be included in such registration pursuant to Section 3 hereof by
any Charter Investor or Mobius Investor holding such Registrable Securities and
(y) the securities requested to be included in such registration by any holder
of Parity Piggyback Registration Securities and by any Demand Investor,
allocated (if necessary) pro rata among such Charter Investors, Mobius
Investors, holders of Parity Piggyback Registration Securities and Demand
Investors on the basis of the relative number of (I) Registrable Securities
which the Charter Investors and the Mobius Investors have requested to be
included in such registration, and (II) Parity Piggyback Registration Securities
which the holders of Parity Piggyback Registration Securities have requested to
be included in such registration; and
(C) third, securities of the Company to be
sold for the account of other persons, with such priorities among them as the
Company shall determine.
or
(ii) If such registration was initiated by a Demand
Investor, then the Company will include in such registration,
in the priority listed below, securities up to the Maximum
Offering Size:
(A) first, the securities requested to be
registered by such Demand Investor;
(B) second, the Registrable Securities
requested to be included in such registration by the Charter Investors, the
Mobius Investors and the holders of Parity Piggyback Registration Securities
pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of
such Charter Investors, Mobius Investors and holders of Parity Piggyback
Registration Securities on the basis of the relative number of securities of the
Company each such Charter Investor, Mobius Investor or holder of Piggyback
Registration Securities has requested to be included in such registration;
(C) third, securities of the Company to be
sold for the account of the Company; and
(D) fourth, securities of the Company to be
sold for the account of other persons, with such priorities among them as the
Company shall determine.
4. Registration Procedures. If the Company is required by the
-----------------------
provisions of Section 2 or 3 to use its best efforts to effect the registration
of any of its securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities and use its best efforts to cause such Registration
Statement to become and remain effective for a period of time required for the
disposition of such securities by the holders thereof, but not to exceed 180
days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration Statement until
the earlier of such time as all of such securities have been disposed of in a
public offering or the expiration of 180 days;
(c) furnish to the Investors such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its best efforts to register or qualify the securities covered
by such Registration Statement under such other securities or blue sky laws of
such jurisdictions within the United States and Puerto Rico as each holder of
such securities shall request (provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any jurisdiction in which it is not then qualified or to file any general
consent to service of process), and do such other reasonable acts and things as
may be required of it to enable such holder to consummate the disposition in
such jurisdiction of the securities covered by such Registration Statement;
(e) furnish, in connection with any registration of Registrable
Securities, on the date that such shares of Registrable Securities are delivered
to the underwriters for sale pursuant to such registration or, if such
Registrable Securities are not being sold through underwriters, on the date that
the Registration Statement with respect to such shares of Registrable Securities
becomes effective, (1) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the Investors, in customary form and covering
matters of the type customarily covered in such legal opinions; and (2) a
comfort letter dated such date, from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and if such
Registrable Securities are not being sold through underwriters, then to the
Investors and, if such accountants refuse to deliver such letter to the
Investors, then to the Company in a customary form and covering matters of the
type customarily covered by such comfort letters and as the underwriters or such
holder(s) shall reasonably request;
(f) enter into customary agreements (including an underwriting
agreement in customary form with customary indemnification provisions) and take
such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, but not later than 18 months after the
effective date of the Registration Statement, an earnings statement covering the
period of at least 12 months beginning with the first full month after the
effective date of such Registration Statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of the Company to take any
action pursuant to this Agreement in respect of the securities which are to be
registered at the request of the Investors that (i) the Investors shall furnish
to the Company such information regarding the securities held by the Investors
and the intended method of disposition thereof as the Company shall reasonably
request and as shall be required under the Securities Act in connection with the
action taken by the Company and (ii) that the Investors shall deliver and
perform under such underwriting agreement as may be reasonably requested by the
underwriters.
5. Expenses. All expenses incurred in complying with this Agreement,
--------
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for the Company and counsel for the Investors, expenses
of any special audits incident to or required by any such registration and
expenses of complying with the securities or blue sky laws of any jurisdictions
pursuant to Section 4(d), shall be paid by the Company, except that the Company
shall not be liable for any fees, discounts or commissions to any underwriter in
respect of the securities sold by the Investors.
6. Indemnification and Contribution. (a) In the event of any
--------------------------------
registration of any Registrable Securities under the Securities Act pursuant to
this Agreement, the Company shall indemnify and hold harmless each Investor, its
directors and officers, and each other Person (including each underwriter) who
participated in the offering of such Registrable Securities and each other
Person, if any, who controls the Investor or such participating Person within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, the Investor or any such director or officer or
participating Person or controlling Person may become subject under the
Securities Act, the Securities Exchange Act, state securities or blue sky laws
or any other statute or at common law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue or alleged untrue statement of any material fact contained in any
Registration Statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any violation
or alleged violation by the Company of the Securities Act, the Securities
Exchange Act, state securities or blue sky laws, any other statute or common
law; and the Company shall reimburse the Investor or such director, officer or
participating Person or controlling Person for any legal or any other expenses
reasonably incurred by the Investor or such director, officer or participating
Person or controlling Person in connection with investigating or defending any
such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus, prospectus or amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Investor specifically for use therein. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Investor
or such director, officer or participating Person or controlling Person, and
shall survive the transfer of such securities by the Investor.
(b) In the event of any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, each Investor shall
indemnify and hold harmless the Company, its directors and officers, and each
other Person (including each underwriter) who participated in the offering of
such Registrable Securities and each other Person, if any, who controls the
Company or such participating Person within the meaning of the Securities Act,
against any losses, claims, dam ages or liabilities, joint or several, to which
the Company or any such director or officer or participating Person or con
trolling Person may become subject under the Securities Act, the Securities
Exchange Act, state securities or blue sky laws or any other statute or at
common law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case where such statement or
omission is in conformity with written information provided by the Investor
expressly for use therein, and shall reimburse the Company or such director,
officer or participating Person or controlling Person for any legal or any other
expenses reasonably incurred by the Company or such director, officer or
participating Person or controlling Person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Investor shall not be liable for any amounts in excess of the net
proceeds received by it for the sale of its shares. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or such director, officer or participating Person or controlling
Person, and shall survive the transfer of such securities by the Investor.
(c) Each party entitled to indemnification under this Section 6 shall
give notice to the party required to provide indemnification promptly after such
indemnified party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the indemnifying party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that counsel for the
indemnifying party, who shall conduct the defense of such claim or litigation,
shall be approved by the indemnified party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 6. The indemnified
party may participate in such defense at such party's expense; provided,
however, that the indemnifying party shall pay such expense if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between the
indemnified party and any other party represented by such counsel in such
proceeding. No indemnifying party, in the defense of any
such claim or litigation shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation, and no indemnified party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the indemnifying party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then the 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 or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations;
provided that in the case of the Investor, such contribution shall not exceed
any amounts in excess of the net proceeds received by the Investor for the sale
of its shares. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omis sion to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reason ably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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 also guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Investors under this Section
6 shall survive the completion of any offering of Registrable Shares in a
registration statement under Sections 2 and 3, and otherwise.
7. Market Stand-Off Agreement. If requested by an underwriter of
--------------------------
securities of the Company the Investors shall not sell or otherwise transfer or
dispose of any securities held by them during the one hundred twenty (120) day
period following the effective date of a Registration Statement; provided, that
all officers and directors of the Company, as well as all beneficial owners of
greater than 10% of the Company's Common Stock, enter into similar agreements.
8. Miscellaneous.
-------------
(a) Remedies. The Investors, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of their rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departure from the provisions hereof may not be given
unless the Company and the Investors have approved the same in writing.
(c) Notices. Any notice, demand, request, con sent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall be sufficiently given or made if in
writing and (i) delivered in person with receipt acknowledged, (ii) sent by
registered or certified mail, return receipt requested, postage prepaid, (iii)
sent by overnight courier with guaranteed next-day delivery, or (iv) sent by
telex or telecopier, in each case addressed as follows:
i. If to the Charter Investors, to them at:
c/o Charterhouse Group International, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
ii. If to the Mobius Investors, to them at:
c/o Mobius Venture Capital
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
iii. If to the Company, to it at:
Interliant, Inc.
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) Business Days after the same
shall have been deposited in the United States mail, one business day after sent
by overnight courier or on the day telexed or telecopied.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon (i) the successors of each of the parties hereto and (ii)
the assigns of each of the Investors, including any Person to whom Registrable
Securities are transferred if the transferee or assignee acquires at least
twenty- five percent (25%) of the then outstanding Registrable Securities held
by such Investor or if the transferee or assignee of Registrable Securities is a
member, general partner, limited partner, retired partner or other affiliate of
any Investor; provided that any such transferee or assignee shall execute a
counterpart of, or shall otherwise become bound in writing by the requirements
of, this Agreement and be considered an "Investor" for purposes of this
Agreement.
(e) Mergers, Etc. The Company shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Securities" shall be deemed to be
references to the securities which holders of then Registrable Securities would
be entitled to receive in exchange for Registrable Securities under any such
merger, consolidation or reorganization; provided, however, that the provisions
of this Section 8(f) shall not apply in the event of any merger, consolidation
or reorganization in which the Company is not the surviving corporation if all
holders of then Registrable Shares are entitled to receive in exchange for such
Registrable Securities consideration consisting solely of (i) cash, (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act, or (iii) securities of the
acquiring corporation which the acquiring corporation has agreed to register
within 90 days of completion of the transaction for resale to the public
pursuant to the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or other wise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (i.e., without regard
to its conflicts of law rules).
(h) Severability. Wherever possible, each pro vision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by
or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
[END OF TEXT]
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Registration Rights Agreement as of the day and year first above written.
INTERLIANT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
CHARTERHOUSE EQUITY PARTNERS III, L.P.
By: CHUSA EQUITY INVESTORS III, L.P.,
General Partner
By: CHARTERHOUSE EQUITY III, L.P.,
General Partner
By: /s/ Xxx X. Xxxxx
----------------
Name: Xxx X. Xxxxx
Title:
Mobius Investors: MOBIUS TECHNOLOGY VENTURES VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title:
SOFTBANK U.S. VENTURES FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title:
MOBIUS TECHNOLOGY VENTURES
ADVISORS FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------
Name: Xxxxxxx X. Xxxx
Title:
MOBIUS TECHNOLOGY VENTURES
SIDE FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title:
