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Exhibit 2.10
THIS AGREEMENT TO DELIVER SHARES dated as of March 10, 1999 (this
"Agreement") between INTERLIANT, INC., a Texas corporation ("Seller"), SAGE
NETWORKS ACQUISITION CORP., a Delaware corporation ("Buyer") and SAGE NETWORKS,
INC., a Delaware corporation ("Sage").
W I T N E S S E T H :
WHEREAS, Buyer, Sage, Seller and certain shareholders of Seller have
entered into that certain Asset Purchase Agreement dated March 8, 1999 (the
"Purchase Agreement") providing, among other things, for the sale by Seller to
Buyer of the Purchased Assets;
WHEREAS, the delivery of this Agreement to Deliver Shares is a
condition precedent to the consummation of the transactions contemplated by the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements contained herein and in the Purchase
Agreement, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings assigned to them in
the Purchase Agreement.
Section 2. Distribution of Agreement. On the Closing Date, the
Seller shall distribute all of its right, title and interest under this
Agreement pursuant to the Plan of Liquidation of Seller dated the Closing Date
ratably to the Shareholders of the Seller in proportion to their ownership
interest in the Seller (the "Distributees").
Section 3. Agreement to Deliver Shares. Subject to satisfaction of
the conditions contained in Section 6 of this Agreement, Sage shall deliver
4,091,642 shares of Common Stock (the "Share Consideration") as follows:
(a) Promptly following the Closing Date, deposit a portion of the
Share Consideration (which shall be treated as distributed to Xxxxxx Xxxx) equal
to 350,000 shares of Common Stock in a safe deposit box in accordance with
Section 8.09 of the Purchase Agreement;
(b) On the day following the Closing Date, deliver to Broadview
Holdings LLP 114,644 shares of Common Stock (which shall be treated as
distributed to Xxxxxx Xxxx);
(c) On the day following the Closing Date, deliver to the
Distributees a portion of the Share Consideration equal to 3,608,863 shares of
Common Stock to the persons and in the amounts set forth in Schedule I under the
heading "Under 3.01(c)"; and
(d) On the first business day following January 1, 2000, deliver to
the Distributees the balance of the Share Consideration in the amounts set forth
in Schedule I under the heading "Under 3.01(d)".
Section 4. Payment of Additional Consideration. Payment of the
shares delivered pursuant to Section 3.01(b) of the Purchase Agreement shall be
made to
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the Distributees in the percentages set forth on Schedule I under the heading
"Section 4 Percentage".
Section 5. Delivery of Certificates. Shares to be delivered pursuant
to Section 3 shall be in one or more (but not more than twenty-five)
certificates for Common Stock registered in the names set forth on Schedule I
hereto.
Section 6. Conditions to Delivery of Shares. Sage shall deliver
shares of Common Stock to a person or entity in accordance with the directions
set forth in Section 3 hereof upon receipt by Sage of a fully completed and
executed Subscription Agreement and a fully executed Shareholders Agreement from
such person or entity to whom such shares are to be delivered. Upon receipt of
such fully executed agreement, Sage's obligation to deliver shares of Common
Stock to such person or entity shall be absolute and unconditional.
Section 7. Binding Agreement; Amendments. This Agreement shall be
binding on the parties hereto and their respective heirs, distributees,
executors, and legal representatives, successors and assigns. This Agreement may
not be modified except by an instrument in writing which is signed by both
parties.
Section 8. Antidilution. All references to numbers of shares shall
be appropriately adjusted if between the date hereof and the date of delivery of
additional shares of Common Stock, the outstanding shares of Common Stock are
reclassified into a greater or lesser number of shares by way of a stock
dividend, stock split, reverse stock split or other reclassification.
Section 9. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York.
Section 10. Other Agreements Prevail. Seller and Buyer each hereby
acknowledges and agrees that neither the representations and warranties nor the
rights or remedies of any party under the Purchase Agreement shall be deemed to
be enlarged, modified or altered in any way by this Agreement. In the event of a
conflict between the terms of this Agreement and the terms of the Purchase
Agreement, the terms of the Purchase Agreement shall prevail.
Section 11. Counterparts. This Agreement may be executed in any
number of counterparts all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by both
parties so long as each party shall sign at least one counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date and year first above written.
INTERLIANT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
SAGE NETWORKS ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
SAGE NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Co-Chairman
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Schedule I
Certificates
Under Under Section 4
----- ----- ---------
Name of Registered Owner 3.01(c) 3.01(d) Percentage
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Xxxxxx Xxxx 2,386,562 11,993 69.97
Xxx Xxxxxxxx Wolf 1995 Marital
Trust 396,851 1,994 9.75
Xxxxxx X. Xxxx Children's Trust 793,702 3,988 19.50
Xxxxxxx Xxxxxx 31,748 160 0.78
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3,608,863 18,135
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