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EXHIBIT 10.26
STOCK PURCHASE AGREEMENT
AMONG
INTERLAND, INC.
AND
XXXX ATLANTIC INVESTMENTS, INC.
DATED MAY 8, 2000
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TABLE OF CONTENTS
Page
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1. DEFINITIONS 1
2. SALE AND PURCHASE OF SHARES 1
2.1. SALE AND PURCHASE OF SHARES 1
2.2. CLOSING 1
2.3. SALE AND PURCHASE OF ADDITIONAL SHARES 2
2.4. PURCHASE PRICE AND PAYMENT FOR ADDITIONAL SHARES 2
2.5. SECOND CLOSING 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 2
3.1. ORGANIZATION AND STANDING 3
3.2. SUBSIDIARIES 3
3.3. CERTIFICATE OR ARTICLES OF INCORPORATION AND BYLAWS 4
3.4. CAPITAL STRUCTURE OF THE COMPANY 4
3.5. S-1 REGISTRATION STATEMENT 5
3.6. FINANCIAL STATEMENTS 5
3.7. NO LIABILITIES 5
3.8. TAXES 5
3.9. CONDUCT OF BUSINESS; ABSENCE OF MATERIAL ADVERSE CHANGE 6
3.10. TITLE TO PROPERTY AND ASSETS 8
3.11. INTELLECTUAL PROPERTY 8
3.12. BOOKS AND RECORDS 9
3.13. LITIGATION; DISPUTES 9
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3.14. LABOR RELATIONS 10
3.15. ENVIRONMENTAL 10
3.16. RESTRICTIONS AND CONSENTS 11
3.17. AUTHORITY; AUTHORIZATION; NO CONFLICT 12
3.18. ABSENCE OF VIOLATION 13
3.19. COMPLIANCE WITH LAW; APPROVALS 13
3.20. BINDING OBLIGATION 14
3.21. SYSTEMS 14
3.22. COMPANY'S NAMES, BUSINESS AND LOCATION OF COMPANY ASSETS 15
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR 15
4.1. ORGANIZATION AND STANDING 15
4.2. AUTHORIZATION 15
4.3. BINDING OBLIGATION 16
4.4. NO REGISTRATION UNDER THE SECURITIES ACT 16
4.5. ACQUISITION FOR INVESTMENT 16
4.6. EVALUATION OF MERITS AND RISKS OF INVESTMENT 17
4.7. ADDITIONAL INFORMATION 17
4.8. STOCK CERTIFICATE LEGEND 17
4.9. QUALIFIED INSTITUTIONAL BUYER 17
5. CLOSING DELIVERABLES 18
5.1. OPINION OF COUNSEL 18
5.2. DOCUMENTS AT CLOSING 18
5.3. CONSENTS 18
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6. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION REMEDIES 18
6.1. SURVIVAL OF REPRESENTATIONS 18
6.2. AGREEMENT OF THE COMPANY AND THE INVESTOR TO INDEMNIFY 19
6.3. CONDITIONS OF INDEMNIFICATION 19
6.4. SPECIFIC PERFORMANCE 20
6.5. REMEDIES CUMULATIVE 21
6.6. LIMITS FOR RECOVERY OF LOSSES 21
7. MISCELLANEOUS 21
7.1. ADDITIONAL ACTIONS AND DOCUMENTS 21
7.2. NO BROKERS 21
7.3. JURY WAIVER 22
7.4. PUBLICITY 22
7.5. EXPENSES 22
7.6. ASSIGNMENT 22
7.7. ENTIRE AGREEMENT; AMENDMENT 22
7.8. WAIVER 23
7.9. SEVERABILITY 23
7.10. GOVERNING LAW 23
7.11. NOTICES 23
7.12. HEADINGS 25
7.13. EXECUTION IN COUNTERPARTS 25
7.14. LIMITATION ON BENEFITS 25
7.15. BINDING EFFECT 25
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EXHIBIT A DEFINITIONS
EXHIBIT B FORM OF XXXXXXXXXX XXXXXXXX LLP LEGAL OPINION
EXHIBIT C ARTICLES OF AMENDMENT OF ARTICLES OF
INCORPORATION
EXHIBIT D AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Purchase Agreement") is
entered into as of May 8, 2000 by and among Interland, Inc., a Georgia
corporation (the "Company") and Xxxx Atlantic Investments, Inc., a Delaware
corporation ("Xxxx Atlantic" or the "Investor").
WHEREAS, the Company desires to issue and sell to the
Investor, and the Investor desires to subscribe for and acquire from the
Company, an equity interest in the Company, upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
For all purposes of this Purchase Agreement, certain
capitalized terms specified in Exhibit A shall have the meanings set forth in
that Exhibit A, except as otherwise expressly provided.
2. SALE AND PURCHASE OF SHARES
2.1. SALE AND PURCHASE OF SHARES
The Company agrees to issue and sell to the Investor, and the
Investor is subscribing for and agrees to purchase from the Company, an
aggregate of 1,111,111 shares of Series A Stock (the "Initial Investment") at a
price per Share of $9.00 for an aggregate purchase price of $10,000,000.
2.2. CLOSING
The closing of the Initial Investment shall take place simultaneously
with the Company's receipt by wire transfer of immediately available funds in
the amount of $10,000,000 from the Investor, as payment in full for the shares
of Series A Stock subscribed for and being purchased by the Investor in the
Initial Investment (the "Closing"). At the Closing, the Company shall issue and
deliver to the Investor a stock certificate or certificates in definitive form,
registered in the Investor's name, representing the Initial Investment.
2.3. SALE AND PURCHASE OF ADDITIONAL SHARES
At the Second Closing (as defined below), and on the terms and subject
to the conditions set forth in this Agreement, the Company shall issue, sell and
deliver to the Investor, and the
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Investor hereby subscribes for and agrees to purchase and accept from the
Company, the number of shares (the "Additional Shares") of Common Stock of the
Company equal to the number obtained by dividing (A) $15,000,000 by (B) a number
equal to the lesser of (i) the midpoint of the expected range of offering prices
reflected on the Company's first filing with the Securities and Exchange
Commission of a registration statement covering the sale of its Common Stock and
(ii) the actual price to the public in such offering, and rounding the number
obtained thereby to the nearest whole number.
2.4. PURCHASE PRICE AND PAYMENT FOR ADDITIONAL SHARES
In consideration of the sale of the Additional Shares to the Investor,
the Investor shall pay to the Company at the Second Closing the aggregate
purchase price of $15,000,000.00 (the "Purchase Price"). The Purchase Price
shall be paid in cash by wire transfer of immediately available federal funds to
an account designated in writing by the Company.
2.5. SECOND CLOSING
The closing of the transactions contemplated in Section 2.3 and Section
2.4 hereof (the "Second Closing") shall take place at the offices of Xxxxxxxxxx
Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx, at 10:00
a.m., Atlanta time, on the 3rd day after the Company's registration statement is
declared effective and the offering made pursuant thereto is priced. The date on
which the Second Closing takes place is herein referred to as the "Second
Closing Date". At the Second Closing (i) the Company shall deliver to the
Investor the executed stock certificate representing the Additional Shares duly
issued in the name of the Investor, and (ii) the Investor shall deliver the
Purchase Price to Company by wire transfer of immediately available funds in the
amount of $15,000,000 from the Investor.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as specifically set forth in the Disclosure Schedule to
the Stock Purchase Agreement (as hereinafter defined) dated December 2, 1999
(the "Disclosure Schedule"), the Company represents and warrants as of December
2, 1999 (which representation and warranty shall be deemed to include the
disclosure with respect thereto so specified in the Disclosure Schedule) to the
Investor that each of the representations and warranties as set forth in SECTION
3.5 through SECTION 3.23, inclusive, of that certain Stock Purchase Agreement
entered into as of December 2, 1999 by and among the Company, Crest
Communications Partners L.P., Crest Entrepreneurs Fund L.P., Boulder Ventures
III, L.P., and the other investors set forth on Exhibit D thereto (the "Stock
Purchase Agreement"), is true and correct and each such representation and
warranty shall be incorporated by reference and made a part hereof; provided,
however, for purposes of this Agreement, each reference to the (i) "Purchase
Agreement" made therein shall mean this Agreement, and (ii) "Investors" made
therein shall refer to the Investor. The disclosures made in the Disclosure
Schedule with respect to a Section of this Purchase Agreement shall also be
deemed disclosures with respect to all other applicable Sections of this
Agreement. Investor hereby acknowledges and agrees that except as otherwise
provided below each of such representations and warranties made by the Company
herein and any and all
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disclosures made by the Company in the Disclosure Memorandum shall be effective
as of December 2, 1999 and the Company shall be under no obligation to
supplement or otherwise update such information subsequent to December 2, 1999
except as otherwise provided below. In addition, the Company hereby makes the
following representations and warranties as of the date hereof or other date
expressly set forth therein.
3.1. ORGANIZATION AND STANDING
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia and has all
requisite corporate power and corporate authority to own, operate and lease its
Assets, to carry on its business as currently conducted and to carry out the
transactions contemplated hereby. The Company has made available to the Investor
complete and correct copies of the certificate or articles of incorporation and
by-laws of the Company, with all amendments thereto, as in effect on the date of
this Purchase Agreement. The Company is not qualified to conduct business in any
other jurisdiction, and neither the nature of the business conducted by, nor the
character of the Assets owned, leased or otherwise held by, the Company makes
such qualification necessary except where the failure to be so qualified would
not have a Material Adverse Effect.
3.2. SUBSIDIARIES
Except as set forth on the Disclosure Schedule, the Company
has no Subsidiaries and no equity investment or other interest in, nor has the
Company made advances or loans to, any corporation, association, partnership,
joint venture or other entity, other than credit extended in the Ordinary Course
of Business, except as set forth in the Disclosure Schedule. The Disclosure
Schedule sets forth (a) the authorized capital stock of each direct and indirect
Subsidiary of the Company and the percentage of the outstanding capital stock of
each Subsidiary directly or indirectly owned by the Company, and (b) the nature
and amount of any such equity investment, other interest or advance. All of such
shares of capital stock of Subsidiaries directly or indirectly held by the
Company have been duly authorized and validly issued and are outstanding, fully
paid and nonassessable. The Company directly, or indirectly through wholly owned
Subsidiaries, owns all such shares of capital stock of the direct or indirect
Subsidiaries free and clear of all Encumbrances. Each Subsidiary is a
corporation duly organized, validly existing and in good standing under the laws
of its state or jurisdiction of incorporation (as listed in the Disclosure
Schedule), and has all requisite corporate power and authority to own, operate
and lease its Assets and to carry on its business as currently conducted. Each
Subsidiary is qualified to conduct business and is in good standing in the
states, countries and territories listed in the Disclosure Schedule. The
Subsidiaries are not qualified to conduct business in any other jurisdictions,
and neither the nature of their businesses nor the character of the Assets
owned, leased or otherwise held by them makes any such qualification necessary.
There is no state, country or territory wherein the absence of licensing or
qualification as a foreign corporation would have a Material Adverse Effect.
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3.3. CERTIFICATE OR ARTICLES OF INCORPORATION AND BYLAWS
The Company has Furnished to the Investor a true and complete
copy of the certificate or articles of incorporation of the Company, as
currently in effect, certified as of a recent date by the Secretary of State (or
comparable governmental authority) of the respective jurisdictions of
incorporation, and a true and complete copy of the bylaws of the Company, as
currently in effect.
3.4. CAPITAL STRUCTURE OF THE COMPANY
Upon consummation of the purchase by the Investor of the
shares of Common Stock contemplated hereby, the authorized capital stock of the
Company will consist solely of (i) 200,000,000 shares of Common Stock, of which
(a) 23,058,498 shares are currently issued and outstanding, (b) 12,163,968
shares are reserved for issuance upon conversion of the Series A Stock, (c)
7,000,000 shares are reserved for issuance pursuant to the Company's Option
Plan, (d) 400,000 shares are reserved for issuance pursuant to options issued to
consultants and advisors to the Company and (d) 63,282,712 shares are authorized
but unissued and unreserved and (ii) 25,000,000 shares of Preferred Stock, of
which (a) 12,163,968 shares of Series A Stock are issued and outstanding and (b)
2,100,000 shares of Series A-1 Convertible Participating Preferred Stock, no par
value per share, are authorized but unissued. All issued and outstanding shares
of capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and free of any preemptive rights. Except as
set forth in this SECTION 3.4, no shares of capital stock of the Company or any
Subsidiary have been reserved for any purpose. Except as set forth in this
SECTION 3.4, there are no outstanding securities convertible into or
exchangeable or exercisable for the capital stock of the Company, or warrants or
options to purchase or to subscribe for any shares of such stock or other
securities of the Company. There are no outstanding Agreements affecting or
relating to the voting, issuance, purchase, redemption, repurchase, transfer or
registration for sale under the Securities Act of any securities of the Company
or any Subsidiary, except as contemplated hereunder.
3.5. S-1 REGISTRATION STATEMENT
The Company's S-1 registration statement (File No. 333- 32556) filed
with the SEC under the Securities Act (the "SEC Documents") did not, as of the
date of this Agreement, and will not as of the date it is declared effective by
the SEC 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 light of the circumstances under which they were made, not
misleading.
3.6. FINANCIAL STATEMENTS
The audited balance sheets of the Company as of the end of the fiscal
years ending December 31, 1999 and 1998, and the audited statements of income,
shareholders' equity and cash flow for such periods and the unaudited balance
sheet as of March 31, 2000 and statement of income for the three month period
then ended, in each case as contained in the Registration Statement (the
"Financial Statements"): (i) are in accordance with the books and records of the
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Company, (ii) present fairly in all material respects the financial position of
the Company as of the respective dates and the results of operations and cash
flow for the respective periods indicated, and (iii) have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior accounting periods except for the absence of footnotes.
3.7. NO LIABILITIES
Except as reflected in the Financial Statements, as of March
31, 2000, there existed no liabilities (whether contingent or absolute, matured
or unmatured, known or unknown) of the Company other than (i) incurred in the
Ordinary Course of Business and in amounts that are not individually Material,
and (ii) for taxes, assessments and other governmental charges, if such taxes,
assessments and other charges (x) are not yet due and payable, or (y) are due
and payable but can be paid hereafter without penalty or interest and for which
a proper accrual relating thereto is reflected in the Audited Financial
Statements and which will be paid before penalty or interest begins to accrue
thereon. Except as described in the Disclosure Schedule, since March 31, 2000,
the Company has not incurred any liabilities (whether contingent or absolute,
matured or unmatured, known or unknown) other than in the Ordinary Course of
Business and in amounts that are not individually or in the aggregate Material.
3.8. TAXES
(a) The Company has (or, in the case of returns becoming
due after the date hereof and on or before the Closing Date, will have prior to
the Closing Date) duly filed (or obtained extensions with respect to) all Tax
Returns required to be filed on or before the Closing Date with respect to all
applicable Taxes. No penalties or other charges are or will become due with
respect to any such Tax Returns as the result of the late filing thereof. All of
the Tax Returns are (or, in the case of returns becoming due after the date
hereof and on or before the Closing Date, will be) true and complete in all
Material respects. The Company: (i) has paid all Taxes due or claimed to be due
by any taxing authority in connection with any such Tax Returns; or (ii) has
established (or, in the case of amounts becoming due after the date hereof,
prior to the Closing Date will have paid or established) in the Financial
Statements provided to the Investor adequate reserves (in conformity with
generally accepted accounting principles consistently applied) for the payment
of such Taxes. The amounts set up as reserves for Taxes on the Financial
Statements are sufficient for the payment of all unpaid Taxes as of the dates
thereof, whether or not such Taxes are disputed or are yet due and payable, for
or with respect to the period, and for which the Company may be liable in its
own right or as a transferee of the Assets of, or successor to, any corporation,
person, association, partnership, joint venture or other entity.
(b) The Company, either individually or in its own right
or as a transferee, does not have and on the Closing Date will not have any
liability for Taxes payable for or with respect to any periods prior to and
including the Closing Date in excess of the amounts actually paid prior to the
Closing Date or reserved for in the Financial Statements (other than Taxes
accruing after March 31, 2000 in the Ordinary Course of Business which are not
payable on or prior to the Closing Date).
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(c) There is no action, suit, proceeding, audit,
investigation or claim pending or, to the Knowledge of the Company, threatened
in respect of any Taxes for which the Company is or may become liable, nor has
any deficiency or claim for any such Taxes been proposed, asserted or, to the
Knowledge of the Company, threatened. The Company has not consented to any
waivers or extensions of any statute of limitations with respect to the
collection or assessment of any Taxes against the Company. There is no
Agreement, waiver or consent providing for an extension of time with respect to
the assessment or collection of any Taxes against the Company and no power of
attorney granted by the Company with respect to any tax matters is currently in
force.
3.9. CONDUCT OF BUSINESS; ABSENCE OF MATERIAL ADVERSE CHANGE
Except as otherwise contemplated by the terms of this Purchase
Agreement or as set forth in the Disclosure Schedule, since March 31, 2000 (the
"Reference Date"), there has been no material adverse change in the business,
operations, prospects, condition (financial or otherwise), Assets or liabilities
of the Company. Except as set forth in the Disclosure Schedule or as
contemplated hereunder, since the Reference Date, the Company has conducted
business substantially in the manner heretofore conducted and only in the
Ordinary Course of Business, and the Company has not:
(a) incurred any loss Materially and adversely affecting
any of its Assets as the result of any fire, explosion, flood, windstorm,
earthquake, labor trouble, riot, accident, act of God or public enemy or armed
forces, or other casualty;
(b) incurred, or become subject to, any obligation or
liability (absolute or contingent, matured or unmatured, known or unknown),
except current liabilities incurred in the Ordinary Course of Business and liens
for current taxes, assessments or governmental charges or levies on property not
yet due and delinquent;
(c) discharged or satisfied any Encumbrance or paid any
obligation or liability (absolute or contingent, matured or unmatured, known or
unknown) other than current liabilities shown in the Financial Statements and
current liabilities incurred since the Reference Date in the Ordinary Course of
Business;
(d) declared or made payment of, or set aside for
payment, any dividends or distributions of any Assets, or purchased, redeemed or
otherwise acquired any of its capital stock, any securities convertible into
capital stock, or any other securities;
(e) mortgaged, pledged or subjected to any Encumbrance
any Material Assets, except for (i) Encumbrances reflected in the Financial
Statements of the Company or on the Disclosure Schedule, (ii) Encumbrances
consisting of zoning or planning restrictions, easements, permits and other
restrictions or limitations on the use of real property or irregularities in
title thereto which do not Materially detract from the value of, or impair the
use of, such property by the Company in the operation of its business, and (iii)
liens for current taxes, assessments or governmental charges or levies on
property not yet due and delinquent;
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(f) sold, exchanged, transferred or otherwise disposed of
any Material Assets, or canceled any Material debts or claims, except in each
case in the Ordinary Course of Business;
(g) written down the value of any Material Assets or
written off as uncollectible any Material notes or accounts receivable, except
write-downs and write-offs in the Ordinary Course of Business, none of which,
individually or in the aggregate, are Material;
(h) made any change in any method of accounting or
accounting practice; or
(i) made an Agreement to do any of the foregoing.
3.10. TITLE TO PROPERTY AND ASSETS
The Company has good, valid and marketable title to all
Material Assets owned by it, free and clear of all Encumbrances other than those
referred to in the Financial Statements (or the notes thereto) and liens for
taxes not yet due and payable. The Company does not own any real estate, and the
Company is not a United States Real Property Holding Company as defined under
Section 897 of the Code. All personal property of the Company is in good
operating condition and repair in all material respects (ordinary wear and tear
and routinely scheduled maintenance excepted) and is suitable and adequate for
the uses for which it is intended or is being used.
3.11. INTELLECTUAL PROPERTY
(a) The Company owns, or is licensed or otherwise
possesses all necessary rights to use all patents, trademarks, trade names,
service marks, trade dress, logos, domain names, copyrights and any applications
or registrations therefor, maskworks, schematics, technology, know-how, trade
secrets, formulas, compositions, technical data, designs, drawings,
specifications, inventory, inventions, ideas, algorithms, processes, computer
software programs and applications (in both source code and object code form),
and tangible or intangible proprietary information or material and all reissues,
extensions and renewals thereof ("Intellectual Property") that are used in the
business or products of the Company as the business is now conducted and as
proposed to be conducted. The Intellectual Property owned or used by the Company
is free and clear of all Encumbrances.
(b) Except as disclosed on the Disclosure Schedule, the
Company has taken (or, with respect to Third Party Intellectual Property Rights
that are Material to the Company's business or products, has ensured that the
owner thereof has taken) all necessary action in all appropriate jurisdictions,
both domestic and foreign, to register and maintain the registration of all
Intellectual Property that is Material to the Company's business or products
that may be registered.
(c) To the Knowledge of the Company, there is no actual
or suspected unauthorized use, disclosure, infringement or misappropriation of
any Intellectual Property rights of the Company, or any Third Party Intellectual
Property Rights, that are Material to the
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Company's business or properties, to the extent licensed by or through the
Company, by any third party, including any employee or former employee of the
Company. The Company has not notified any third party that it believes such
third party is interfering with, infringing or misappropriating any of the
Company's Intellectual Property or engaging in any act of unfair competition.
The Company has the right to bring an action for the infringement of all of its
Intellectual Property. The Company has taken all reasonably necessary measures
to protect and maintain its rights in the Intellectual Property. Except as set
forth on the Disclosure Schedule, there are no royalties, fees or other payments
or compensation payable by the Company to any person by reason of the ownership,
use, sale or disposition of Intellectual Property.
(d) The Company is not, nor will it be as a result of the
execution and delivery of this Purchase Agreement, the Common Stock or the
Agreements contemplated hereby, or the performance of its obligations
thereunder, in breach of any license, sublicense or other agreement relating to
the Intellectual Property, including Third Party Intellectual Property Rights.
(e) The Company has no Knowledge that the conduct of the
business of the Company infringes any patent, trademark, service xxxx,
copyright, trade secret or other proprietary right of any third party. There are
no pending or, to the Company's Knowledge, threatened claims against the Company
alleging that the conduct of its business infringes any Intellectual Property
rights of others. The Intellectual Property of the Company is not subject to any
outstanding injunction, judgment, order, decree, ruling or charge. To the
Company's Knowledge, the Company has not engaged in unfair competition against
any third party.
3.12. BOOKS AND RECORDS
The books of account, stock records, minute books and other
records of the Company are true and accurate in all Material respects and have
been maintained in accordance with good business practices and the matters
contained therein are appropriately and accurately reflected in the Financial
Statements.
3.13. LITIGATION; DISPUTES
(a) Except as described in the Disclosure Schedule, there
are no actions, suits, claims, arbitrations, proceedings or known investigations
pending or, to the Knowledge of the Company, threatened or reasonably
anticipated against, affecting or involving the Company, or its business or
Assets, or the transactions contemplated by this Purchase Agreement before or by
any court, arbitrator or governmental authority, domestic or foreign. The
Company is not operating under, subject to or in default with respect to any
order, award, writ, injunction, decree or judgment of any court, arbitrator or
governmental authority. The Company has Furnished to the Investor copies of all
pleadings filed with respect to any Material litigation in which the Company is
engaged.
(b) The Company is not currently involved in nor, to the
Knowledge of the Company, reasonably anticipates any material dispute with any
of its current or former employees, agents, brokers, distributors, vendors,
customers, business consultants, franchisees,
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franchisers, representatives or independent contractors (or any current or
former employees of any of the foregoing persons or entities) which would
reasonably be expected to have a Material Adverse Effect.
3.14. LABOR RELATIONS
There are no strikes, work stoppages, grievance proceedings,
union organization efforts or other controversies pending or, to the Knowledge
of the Company, threatened or reasonably anticipated between the Company and (a)
any current or former employees of the Company, or (b) any union or other
collective bargaining unit representing the employees. The Company is in
compliance in all Material respects with all Laws relating to employment or the
workplace, including, without limitation, provisions relating to wages, hours,
collective bargaining, safety and health, work authorization, equal employment
opportunity, immigration, withholding, unemployment compensation, worker's
compensation, employee privacy and right to know. There are no collective
bargaining agreements, employment agreements between the Company and any of its
employees, or professional service agreements not terminable at will without
penalty relating to the businesses and Assets of the Company. The consummation
of the transactions contemplated hereby will not cause the Company or the
Investor to incur or suffer any liability relating to, or obligation to pay,
severance, termination or other payments to any person or entity.
3.15. ENVIRONMENTAL
(a) The Company has complied and is in compliance with,
and the facilities occupied by the Company and all improvements thereon are in
compliance with, all Environmental Laws relating to or affecting the Company,
except where the failure to comply would not have a Material Adverse Effect.
(b) The Company has no liability under any Environmental
Law that would have a Material Adverse Effect and it is not responsible for any
liability of any other person under any Environmental Law. There are no pending
or, to the Knowledge of the Company, threatened actions, suits, orders, claims,
legal proceedings or other proceedings based on, nor has the Company or any
officer or director, directly or indirectly received any formal or informal
notice of any complaint, order, directive, citation, notice of responsibility,
notice of potential responsibility, or information request from any governmental
authority or any other person or entity or knows or suspects any fact(s) which
might reasonably form the basis for any such actions or notices arising out of
or attributable to: (i) the current or past presence, Release, or threatened
Release of Hazardous Materials at or from any part of the Real Property; (ii)
the off-site disposal or treatment of Hazardous Materials originating on or from
the Real Property or the business or Assets of the Company; or (iii) any
violation of Environmental Laws at any part of the Real Property or arising from
the Company's activities (or the activities of such Person's predecessors in
title) involving Hazardous Materials.
(c) The Company has been duly issued, and currently has
and will maintain through the Closing Date, all permits, licenses, certificates
and approvals required under any
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Environmental Law with respect to its Assets and business that the failure to
have and maintain would cause a Material Adverse Effect. Except in accordance
with such permits, licenses, certificates and approvals, to the Knowledge of the
Company, there has been no Release of Hazardous Materials at, or, under, or from
the Real Property occupied by the Company. There are no permits, licenses,
certificates or approvals required under any Environmental Law that are
non-transferable or which require consent, notification or other action to
remain in full force and effect following consummation of the transactions
contemplated by this Purchase Agreement.
(d) No Real Property owned or previously owned by the
Company and, to the Knowledge of the Company, no Real Property currently leased
by the Company from third parties, either (i) contains any underground
improvements, including but not limited to treatment or storage tanks, or
underground piping associated with such tanks, used currently or in the past for
the management of Hazardous Materials, or (ii) is or has been used as a dump or
landfill or consists of filled in land or wetlands.
(e) To the Knowledge of the Company, neither PCBs nor
asbestos-containing materials are present on or in the Real Property occupied by
the Company.
(f) To the Knowledge of the Company, no Encumbrance in
favor of any person relating to or in connection with any Claim under any
Environmental Law has been filed or attached to Real Property currently leased
by the Company from a third party.
3.16. RESTRICTIONS AND CONSENTS
There are no Agreements, Laws or other restrictions of any
kind to which the Company is a party or to which the Company's Assets are
subject that would prevent or restrict the execution, delivery or performance of
this Purchase Agreement or prohibit or limit the continued operation of the
business of the Company after the date hereof on substantially the same basis as
heretofore operated, as a result of the execution, delivery or performance of
this Purchase Agreement. The Disclosure Schedule lists all Agreements and Laws
that require the consent or acquiescence of any person or entity not party to
this Purchase Agreement with respect to any aspect of the execution, delivery or
performance of this Purchase Agreement by the Company.
3.17. AUTHORITY; AUTHORIZATION; NO CONFLICT
(a) The Company has all requisite corporate power and
authority to enter into this Purchase Agreement and the other Documents
contemplated hereby and to carry out its obligations hereunder and thereunder.
The execution, delivery and performance of this Purchase Agreement and the other
Documents contemplated hereby by the Company have been duly authorized by all
necessary corporate action. The issuance of the shares of Series A Stock to be
purchased by the Investor hereunder has been duly authorized by all requisite
corporate action of the Company and, upon delivery to the Investor of
certificates therefor against payment in accordance with the terms of this
Purchase Agreement, the shares of Series A Stock will (i) be validly issued,
fully paid and nonassessable, (ii) have the rights, preferences and privileges
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16
described in Exhibit C hereto, (iii) be free and clear of preemptive rights,
(iv) subject to the Investor's representations and warranties contained herein,
be issued in compliance with the Securities Act and any applicable state
securities laws and the rules and regulations promulgated thereunder, and (v) be
free and clear of Encumbrances, other than Encumbrances that might have been
created by the Investor and the Encumbrances imposed under this Purchase
Agreement and the Documents contemplated hereby. The issuance of the Common
Stock issuable upon conversion of the Series A Stock has been duly authorized by
all requisite corporate action and such Common Stock has been reserved for
issuance upon conversion of the Series A Stock and, when issued upon conversion
of the Series A Stock in accordance with the terms of Exhibit C hereto, will be
(i) validly issued, fully paid and nonassessable, (ii) free and clear of
preemptive rights, (iii) issued in compliance with the Securities Act and any
applicable state securities laws and the rules and regulations promulgated
thereunder and (iv) free and clear of Encumbrances, other than Encumbrances that
might have been created by the Investor and the Encumbrances imposed under this
Purchase Agreement and the Documents contemplated hereby.
(b) The execution, delivery and performance by the
Company of this Purchase Agreement and all other Documents contemplated hereby,
the fulfillment of and compliance with the respective terms and provisions
hereof and thereof, and the consummation by the Company of the transactions
contemplated hereby and thereby, do not and will not: (a) conflict with, or
violate any provision of, any Law having applicability to the Company or any of
its Assets, or any provision of the certificate or articles of incorporation or
bylaws of the Company; (b) conflict with, or result in any breach of, or
constitute a default under any Material Agreement to which the Company is a
party or by which the Company or any of its Assets may be bound; or (c) result
in or require the creation or imposition of or result in the acceleration of any
indebtedness, or of any Encumbrance of any nature upon, or with respect to any
of the Material Assets of the Company.
3.18. ABSENCE OF VIOLATION
The Company is not in violation of or default under, nor has
the Company breached, any term or provision of its certificate or articles of
incorporation or bylaws or any Material Agreement or restriction to which the
Company is a party or by which the Company is bound or any of its Material
Assets are bound or affected. Neither the Company nor any of its officers,
directors, employees or agents (or, to the Company's Knowledge, stockholders,
distributors, representatives or other persons acting on the express, implied or
apparent authority of such entity) have paid, given or received or have offered
or promised to pay, give or receive, any bribe or other unlawful, questionable
payment of money or other thing of value, any extraordinary discount, or any
other unlawful or unusual inducement, to or from any person, business
association or governmental official or entity in the United States or elsewhere
in connection with or in furtherance of the business of the Company (including,
without limitation, any offer, payment or promise to pay money or other thing of
value (a) to any foreign official or political party (or official thereof) for
the purposes of influencing any act, decision or omission in order to assist the
Company in obtaining business for or with, or directing business to, any person,
or (b) to any person, while knowing that all or a portion of such money or other
thing of value will be offered, given or promised to any such official or party
for such purposes. The
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17
business of the Company is not in any manner dependent upon the making or
receipt of such payments, discounts or other inducements.
3.19. COMPLIANCE WITH LAW; APPROVALS
Except as set forth in the Disclosure Schedule:
(a) The operations of the Company have been conducted, in
all Material respects, in compliance with all Laws and regulations applicable to
the Company's business.
(b) The Company has not received notice of any violation
(or of any investigation, inspection, audit, or other proceeding by any
governmental authority involving allegations of any violation) of any Law, nor
is it in material default with respect to any Law, and to the Knowledge of the
Company, no investigation, inspection, audit, or other proceeding by any
governmental authority involving allegations of violation of any Law is
threatened or contemplated;
(c) The Company has all licenses, franchises, permits,
authorizations or approvals from all governmental authorities ("Approvals")
required for the conduct of the business of the Company and the occupancy and
operation, for its present uses, of the real and personal property which the
Company owns or leases, except where the failure to have such Approvals would
not, individually or in the aggregate, have a Material Adverse Effect, and the
Company is not in violation of any such Approvals or any terms or conditions
thereof.
(d) All such Approvals are in full force and effect, have
been issued to and fully paid for by the holder thereof and, to the Knowledge of
the Company, no suspension or cancellation thereof has been threatened; and
(e) No such Approvals will in any way be affected by, or
terminate or lapse by reason of, the transactions contemplated by this Purchase
Agreement or any of the other agreements contemplated hereunder or executed
herewith.
3.20. BINDING OBLIGATION
This Purchase Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms, is in full
force and effect and constitutes a legal, valid and binding obligation of, and
is legally enforceable against, the Company, and, to the Company's Knowledge,
the other parties thereto (except as enforceability may be limited or affected
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws and equitable principles now or hereafter in effect and
affecting the rights and remedies of creditors generally); and each Document to
be executed by the Company pursuant hereto, when executed and delivered in
accordance with the provisions thereof, shall be a valid and binding obligation
of the Company, enforceable in accordance with its terms.
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3.21. SYSTEMS
Except as set forth in the Disclosure Schedule and with such
other exceptions as will not, individually or in the aggregate, have a Material
Adverse Effect, (i) all of the Systems services' and platform servers are
running, or peaking, at no higher than 60% of capacity, (ii) all of the Systems'
services are replicated in a redundant manner across available platform servers,
(iii) all remote physical points of presence ("POPs") are secure, conform to
equipment manufacturers' recommended environmental parameters, and contain an
uninterrupted power supply with a battery backup of at least 30 minutes, (iv)
the existing power plant at the Company's main location is equipped with an
uninterrupted power supply with a battery backup of at least 60 minutes, (v) all
deployed dial-in modem, modem shelf and corresponding technology conform to
applicable industry standards necessary to support traffic at a rate of 44.5
Mgbps or above, and (vi) all Systems owned, leased by or licensed to or by the
Company are Year 2000 Compliant.
3.22. COMPANY'S NAMES, BUSINESS AND LOCATION OF COMPANY ASSETS
The Company has conducted business under the names "Interland,
Inc." and "Cumberland Title and Closing Corporation" and no other names. The
Company is in the business of providing web hosting services. Other than
engaging in business as a real estate title company under the name "Cumberland
Title and Closing Corporation," the Company has not engaged in and does not
currently engage in any other business. The Company has not engaged in business
as a real estate title company at any time within the past ten (10) years. The
Company's chief executive office and principal place of business is located at
000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000. Substantially all of the Company's
physical Assets are located at the same address as its chief executive office
and the Company does not currently have any places of business other than at
such address or as disclosed in the Disclosure Schedule. Set forth in the
Disclosure Schedule is a complete and accurate listing of all locations at which
the Company has conducted business over the last ten (10) years.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company as
follows:
4.1. ORGANIZATION AND STANDING
The Investor is duly organized, validly existing and in good
standing under the laws of the state or jurisdiction of its formation and has
the full and unrestricted power and authority to enter into this Purchase
Agreement and to carry out the transactions contemplated hereby.
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4.2. AUTHORIZATION
The execution, delivery and performance by the Investor of
this Purchase Agreement and all other Documents contemplated hereby, the
fulfillment of and the compliance with the respective terms and provisions
hereof and thereof, and the consummation by the Investor of the transactions
contemplated hereby and thereby have been duly authorized, and will not: (a)
conflict with, or violate any term or provision of the Investor's certificate or
agreement of limited partnership or other governing documents or (b) conflict
with, or result in any breach of, or constitute a default under, any Agreement
to which the Investor is a party or by which such Investor is bound. No other
action is necessary for the Investor to enter into this Purchase Agreement and
all other Documents contemplated hereby and to consummate the transactions
contemplated hereby and thereby.
4.3. BINDING OBLIGATION
This Purchase Agreement constitutes a valid and binding
obligation of the Investor, enforceable in accordance with its terms, is in full
force and effect and constitutes a legal, valid and binding obligation of, and
is legally enforceable against, the Investor, and, to the Investor's Knowledge,
the other parties thereto (except as enforceability may be limited or affected
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws and equitable principles now or hereafter in effect and
affecting the rights and remedies of creditors generally). Each Document to be
executed by the Investor pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of the Investor, enforceable in accordance with its terms, shall be in full
force and effect and shall constitute a legal, valid and binding obligation of,
and shall be legally enforceable against, the Investor, and, to the Investor's
Knowledge, the other parties thereto (except as enforceability may be limited or
affected by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws and equitable principles now or hereafter in
effect and affecting the rights and remedies of creditors generally).
4.4. NO REGISTRATION UNDER THE SECURITIES ACT
The Investor understands that the Series A Stock to be
purchased by it at Closing and the Common Stock to be purchased at the Second
Closing pursuant to the terms of this Purchase Agreement have not and will not
be registered under the Securities Act or any state securities laws and will be
issued in reliance upon exemptions contained in the Securities Act or
interpretations thereof and in the applicable state securities laws, and cannot
be offered for sale, sold or otherwise transferred unless the shares being
acquired hereunder subsequently is so registered or qualify for exemption from
registration under the Securities Act.
4.5. ACQUISITION FOR INVESTMENT
The shares of Series A Stock and Common Stock is being
acquired under this Purchase Agreement by the Investor in good faith solely for
its own account, for investment and
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not with a view toward distribution within the meaning of the Securities Act.
The shares of Series A Stock and Common Stock will not be offered for sale, sold
or otherwise transferred by the Investor without either registration or
exemption from registration under the Securities Act and any applicable state
securities laws (and the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company, as reasonably requested by the
Company).
4.6. EVALUATION OF MERITS AND RISKS OF INVESTMENT
The Investor has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of
its investment hereunder. The Investor is an "accredited investor" within the
meaning of Rule 501(a) under the Securities Act. The Investor understands and is
able to bear any economic risks associated with such investment (including,
without limitation, the necessity of holding the shares for an indefinite period
of time, inasmuch as the shares have not been registered under the Securities
Act or any state securities laws).
4.7. ADDITIONAL INFORMATION
The Investor acknowledges that it has been afforded the
opportunity to ask questions and receive answers concerning the Company and to
obtain additional information that it has requested to verify the accuracy of
the information contained herein. Notwithstanding the foregoing, nothing
contained herein shall operate to modify or limit in any respect the
representations and warranties of the Company or to relieve it from any
obligations to the Investor for breach thereof or the making of misleading
statements of material fact or the omission of material facts in connection with
the transactions contemplated herein.
4.8. STOCK CERTIFICATE LEGEND
The Investor acknowledges and agrees that each certificate
representing the Series A Stock and Common Stock shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
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4.9. QUALIFIED INSTITUTIONAL BUYER
The Investor hereby certifies that it is a "qualified
institutional buyer" as defined in Rule 144A promulgated by the Securities and
Exchange Commission pursuant to the Securities Act.
5. CLOSING DELIVERABLES
Contemporaneously with the execution of this Agreement, the
Company shall deliver to the Investor the following:
5.1. OPINION OF COUNSEL
The Purchasers shall have received an opinion of Xxxxxxxxxx
Xxxxxxxx LLP, counsel to the Company, dated as of the Closing Date, to the
effect and in the form attached hereto as Exhibit B.
5.2. DOCUMENTS AT CLOSING
All documents required to be furnished by the Company to the
Investor prior to or at Closing shall have been so furnished.
5.3. CONSENTS
(a) The Investor shall have received all consents,
authorizations and approvals of governmental and private parties which are
required to be obtained in order to consummate the transactions contemplated
hereby, and such consents, authorizations and approvals shall be in full force
and effect on the Closing Date.
(b) The Company shall have received all consents,
authorizations and approvals of governmental and private parties which are
required to be obtained in order to consummate the transactions contemplated
hereby, and such consents, authorizations and approvals be in full force and
effect on the Closing Date.
6. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION REMEDIES
6.1. SURVIVAL OF REPRESENTATIONS
All representations, warranties, covenants, and other
Agreements made by any party to this Purchase Agreement herein or pursuant
hereto shall also be deemed made on and as of the Closing Date as though such
representations, warranties, covenants, indemnities and other Agreements were
made on and as of such date, and all the representations, warranties, covenants,
indemnities and other Agreements shall survive the Closing Date for a period of
two years.
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6.2. AGREEMENT OF THE COMPANY AND THE INVESTOR TO INDEMNIFY
(a) Subject to the conditions and provisions of this
SECTION 6, the Company hereby agrees to indemnify, defend and hold harmless the
Investor Indemnified Persons from and against and in any respect of all Claims
asserted against, resulting to, imposed upon or incurred by the Investor
Indemnified Persons (whether such Claims are by, against or relate to the
Company or any other party, including a governmental entity), directly or
indirectly, by reason of or resulting from (i) any misrepresentation or breach
of any representation or warranty, or noncompliance with any covenants or other
Agreements, given or made by the Company in this Purchase Agreement or in the
Disclosure Schedule or Exhibits attached hereto or in any Document Furnished by
or on behalf of the Company pursuant to this Purchase Agreement, (ii) the
Company's prior activities as a real estate title company, (iii) any unlawful or
fraudulent actions taken by Xxxxxxxx Xxxxxxxxx prior to the date of this
Purchase Agreement, and (iv) any Claims which may be brought by Xxxxxxxx
Xxxxxxxxx against the Company or the Investor for any actions taken prior to the
date of this Purchase Agreement.
(b) Subject to the conditions and provisions of this
Section 6, the Investor hereby agrees to indemnify, defend and hold harmless the
Company Indemnified Persons from and against and in any respect of all Claims
asserted against, resulting to, imposed upon or incurred by the Company
Indemnified Persons, directly or indirectly, by reason of or resulting from any
misrepresentation or breach of any representation or warranty, or noncompliance
with any covenants or other Agreements, given or made by the Investor in this
Purchase Agreement or in any Document Furnished by or behalf of the Investor
pursuant to this Purchase Agreement.
(c) Except as set forth below, it shall be a condition to
the right of any Indemnified Person to indemnification pursuant to this SECTION
6 that such Indemnified Person shall assert a Claim for indemnification within
two years following the Closing Date. Notwithstanding the foregoing, (x) any
Claim made pursuant to this SECTION 6 relating to a breach of SECTION 3 may be
made throughout the period ending one year following the latter of (i) the
expiration of all applicable statutes of limitation (including extensions), and
(ii) the final determination of (and the expiration of time to appeal) any
audit, examination, investigation or other proceeding relating to Taxes covered
by, or any Claim under, SECTION 3 hereof and (y) any Claim made pursuant to this
SECTION 6 relating to the items set forth in SECTION 6.2(A)(II) through (V) may
be made at any time.
6.3. CONDITIONS OF INDEMNIFICATION
The obligations and liabilities of the Company and the
Investor hereunder with respect to their respective indemnities pursuant to this
SECTION 6, resulting from any Claim shall be subject to the following additional
terms and conditions:
(a) The indemnified party shall give prompt written
notice to the indemnifying party of any Claim which is asserted against,
resulting to, imposed upon or incurred by such indemnified party and which may
give rise to liability of the indemnifying party pursuant to this SECTION 6,
stating (to the extent known or reasonably anticipated) the nature and
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basis of such Claim and the amount thereof. The omission of the indemnified
party so to notify the indemnifying party of any Claim shall not relieve the
indemnifying party from any liability it may have hereunder except to the extent
that (i) the liability was caused or increased by such omission, or (ii) the
ability of the indemnifying party to reduce or defend against the liability was
materially adversely affected by the omission.
(b) The indemnifying party may engage counsel with
respect to any such Claim, the representation (including the compromise or
settlement of any Claim) to be undertaken on behalf of the indemnified party,
and the indemnified party shall have right to approve counsel (which approval
shall not be unreasonably withheld). The indemnified party shall have the prior
right to approve any compromise or settlement of any Claim by counsel engaged by
the indemnifying party (which approval shall not be unreasonably withheld),
unless such compromise or settlement contains a full release of the indemnified
party of any and all liability and does not impose any restrictions on the
indemnified party or its business or affairs. In the event the indemnifying
party elects not to undertake the defense of the Claim by its own counsel, or in
the event that the indemnified party reasonably believes that representation by
counsel designated by the indemnifying party would be inappropriate due to
actual or potential conflicts of interest, the indemnified party will undertake
the defense thereof by one counsel or other representatives designated by it, at
the cost and expense of the indemnifying party. In any event, the indemnifying
parties will advance all expenses of the indemnified parties as incurred.
6.4. SPECIFIC PERFORMANCE
In addition to any other remedies which the Investor may have
at law or in equity, the Company hereby acknowledges that the shares and the
Company are unique, and that the harm to the Investor resulting from breaches by
the Company of its obligations cannot be adequately compensated by damages.
Accordingly, the Company agrees that the Investor shall have the right to have
all obligations, undertakings, Agreements, covenants and other provisions of
this Purchase Agreement specifically performed by the Company and that the
Investor shall have the right to seek an order or decree of such specific
performance in any of the courts of the United States of America or of any state
or other political subdivision thereof.
6.5. REMEDIES CUMULATIVE
The remedies provided herein shall be cumulative and shall not
preclude the assertion by the Company or the Investor of any other rights or the
seeking of any other remedies against the other, or their respective successors
or assigns.
6.6. LIMITS FOR RECOVERY OF LOSSES
The Company shall not be liable as the indemnifying party for
any Claims under this Section 6 unless and until the aggregate amount of all
Claims hereunder by the Investor or other indemnified parties equals or exceeds
$250,000, in which case the Company shall be liable for all Claims in the
aggregate in excess of $250,000. The limitations set forth in the prior
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sentence shall not apply to Claims against the Company relating to the items set
forth in SECTION 6.2(A)(II) through (IV) and the Investor Indemnified Persons
shall be entitled to indemnification from the Company for any Claims relating to
the items set forth in SECTION 6.2(A)(II) through (IV) without any limitation.
In all cases, and notwithstanding anything herein to the contrary, the Company
shall be subject to a maximum aggregate limit of all Claims against it equal to
the aggregate purchase price paid by the Investor for the shares purchased
hereunder.
7. MISCELLANEOUS
7.1. ADDITIONAL ACTIONS AND DOCUMENTS
After Closing, each of the parties hereto hereby agrees to
take or cause to be taken such further actions, to execute, deliver and file or
cause to be executed, delivered and filed such further Documents, and will
obtain such consents, as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms and conditions of this Purchase
Agreement.
7.2. NO BROKERS
Each of the parties hereto represents and warrants to the
other parties (and to each of them that), such party has not engaged any broker,
finder or agent in connection with the transactions contemplated by this
Purchase Agreement and has not incurred (and will not incur) any unpaid
liability to any broker, finder or agent for any brokerage fees, finders' fees
or commissions, with respect to the transactions contemplated by this Purchase
Agreement. Each party agrees to indemnify, defend and hold harmless each of the
other parties from and against any and all claims asserted against such parties
for any such fees or commissions by any persons purporting to act or to have
acted for or on behalf of the indemnifying party.
7.3. JURY WAIVER
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN AN
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS PURCHASE
AGREEMENT OR ANY OF THE TRANSACTIONS OR AGREEMENTS CONTEMPLATED HEREBY.
7.4. PUBLICITY
Neither the Investor nor the Company shall issue any press
release or make any public disclosure regarding the transaction contemplated
hereby unless such press release or public disclosure is approved by those
parties expressly mentioned by name in the press release in advance.
Notwithstanding the foregoing, each of the parties hereto may, in documents
required to be filed by it with the SEC or other regulatory bodies, make such
statements with respect to the transactions contemplated hereby as each may be
advised by counsel as legally
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necessary or advisable and may make such disclosure as it is advised by its
counsel as required by law.
7.5. EXPENSES
Each party hereto shall pay its own expenses incident to this
Purchase Agreement and the transactions contemplated hereunder, including all
legal and accounting fees and disbursements.
7.6. ASSIGNMENT
The Investor shall have the right to assign its rights and
obligations under this Purchase Agreement, in whole or in part, to any Affiliate
of the Investor or to designate any of its Affiliates (to the extent permitted
by Law) to receive directly the shares to be purchased hereunder or to exercise
any of the rights of the Investor, or to perform its obligations, provided that
such assignee shall have been deemed to have made the representations and
warranties contained in ARTICLE 4 hereof. The Company shall not assign its
rights and obligations under this Purchase Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
the Investor, and any such assignment contrary to the terms hereof shall be null
and void and of no force and effect. In no event shall the assignment by the
Company or any Investor of its rights or obligations under this Purchase
Agreement, whether before or after the Closing, release the Company or the
Investor from their respective liabilities and obligations hereunder.
7.7. ENTIRE AGREEMENT; AMENDMENT
This Purchase Agreement, including the Disclosure Schedule,
the Exhibits and other Documents referred to herein or Furnished pursuant
hereto, constitutes the entire Agreement among the parties hereto with respect
to the transactions contemplated herein, and it supersedes all prior oral or
written Agreements, commitments or understandings with respect to the matters
provided for herein. No amendment or modification of this Purchase Agreement
shall be valid or binding unless set forth in writing and duly executed and
delivered by the Company and the Investor.
7.8. WAIVER
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Purchase Agreement or under
any other Documents Furnished in connection with or pursuant to this Purchase
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
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26
7.9. SEVERABILITY
If any part of any provision of this Purchase Agreement or any
other Agreement or document given pursuant to or in connection with this
Purchase Agreement shall be invalid or unenforceable in any respect, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provisions of this Purchase Agreement.
7.10. GOVERNING LAW
This Purchase Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Georgia (excluding
the choice of law rules thereof).
7.11. NOTICES
All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Purchase Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telecopy addressed as follows:
(i) If to the Investor:
Xxxx Atlantic Investments, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy No: (000)-000-0000
Attention: Xxxxx Xxxxxxx
in each case with a copy (which shall not constitute notice)
to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
(ii) If to the Company:
Interland, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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Telecopy No.: (000) 000-0000
Attention: Xxx Xxxxxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request, or communication which shall be hand delivered,
sent, mailed or telecopied in the manner described above, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt, the delivery
receipt, or (with respect to a telecopy) the answerback or confirmation being
deemed conclusive, but not exclusive, evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
7.12. HEADINGS
Section headings contained in this Purchase Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Purchase Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
7.13. EXECUTION IN COUNTERPARTS
To facilitate execution, this Purchase Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signatures of, or on behalf of, each party, or that the signatures of
all persons required to bind any party, appear on each counterpart; but it shall
be sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
Agreement. It shall not be necessary in making proof of this Purchase Agreement
to produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
7.14. LIMITATION ON BENEFITS
The covenants, undertakings and agreements set forth in this
Purchase Agreement shall be solely for the benefit of, and shall be enforceable
only by, the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns (including
specifically, without limitation, any third party transferees acquiring shares
purchased by the Investor pursuant hereto).
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7.15. BINDING EFFECT
Subject to any provisions hereof restricting assignment, this
Purchase Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and assigns.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Stock Purchase Agreement to be duly executed on
their behalf, as of the day and year first hereinabove set forth.
THE COMPANY:
INTERLAND, INC.
By: /s/ XXX XXXXXXXXXX
----------------------------------------
Name: Xxx Xxxxxxxxxx
Title: President and Chief Executive Officer
THE INVESTOR
XXXX ATLANTIC
INVESTMENTS, INC.
By: /s/ XXXXX XXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title:President and Treasurer
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