1
EXHIBIT 3
SHAREHOLDER AGREEMENT
This Shareholder Agreement (the "AGREEMENT") is entered into as of
March 22, 2001, by and among Micron Electronics, Inc., a Minnesota corporation,
(the "COMPANY"), the parties listed on Exhibit A attached hereto (the "INTERLAND
FOUNDERS") and the parties listed on Exhibit B attached hereto (the "MTI
AFFILIATE"), (with each of the Interland Founders and the MTI Affiliate being
referred to hereafter as a "RESTRICTED PARTY" and collectively as the
"RESTRICTED PARTIES").
RECITALS
A. Concurrently with the execution of this Agreement, the Company,
Interland Acquisition Corporation, a Delaware corporation and a wholly owned
first-tier subsidiary of the Company ("MERGER SUB"), and Interland, Inc., a
Georgia corporation ("INTERLAND"), are entering into an Agreement and Plan of
Merger (the "MERGER AGREEMENT") that provides for the merger of Merger Sub with
and into Interland (the "MERGER"). Pursuant to the Merger, shares of common
stock of Interland, no par value per share will be converted into shares of the
Company's Common Stock on the basis described in the Merger Agreement.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement.
B. As a material inducement for the Company and Interland to enter into
the Merger Agreement, the Company and the Restricted Parties desire to enter
into this Agreement, which, among other things, places certain restrictions on
the Restricted Parties individually and on the Company's securities that such
parties hold.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. RESTRICTIONS ON TRANSFER OF SHARES
Each Restricted Party hereby agrees that it shall not sell,
transfer, assign, pledge, hypothecate or otherwise dispose of, directly or
indirectly, any shares of capital stock of the Company (the "SHARES") held by
such Restricted Party during the period beginning on the Effective Time and
ending on the nine month anniversary of the Effective Time; provided, that
following the nine month anniversary of the Effective Time, the obligations of
each Restricted Party under this Section 1 shall terminate immediately; and
provided, further, that notwithstanding the foregoing, any Shares held by a
Restricted Party may be transferred (i) to the Company or to a person or persons
that the Company has approved in writing; (ii) pursuant to a Bona Fide Public
Offering (as defined below) that includes securities of the Company being sold
2
by a Restricted Party; (iii) in response to a Third Party tender offer or
exchange offer; (iv) in a merger or consolidation; (v) pursuant to a plan of
liquidation that is authorized by the Company's Board; (vi) pursuant to a pledge
of any Shares made pursuant to a bona fide loan transaction that creates a
security interest; (vii) to any controlled Affiliate of Micron Technology, Inc.
("MTI"); or (viii) to any transferee; provided, however, that with respect to
clauses (vi), (vii) and (viii) of this sentence, the transferee must agree in
writing to be bound by this Section 1 with respect to any transferred Shares. As
used in this Agreement, "BONA FIDE PUBLIC OFFERING" means a public offering of
securities of the Company registered under the Securities Act in which
registration has been declared effective by the Securities and Exchange
Commission.
2. REPRESENTATIONS AND WARRANTIES. Each Restricted Party represents and
warrants to the Company that such Restricted Party is the sole record and
beneficial owner of the shares of common stock of the Company set forth on the
signature pages hereto, free and clear of any Encumbrances.
3. GENERAL PROVISIONS.
3.1 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given upon delivery either personally or
by commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following addresses or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
(a) if to the Company or Merger Sub, to:
Micron Electronics, Inc.
000 X. Xxxxxxx Xxxx
Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxx
Facsimile No.: (000) 000-0000
2
3
(b) if to Interland, to:
Interland, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
(c) if to the Interland Founders, to:
Interland, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
(d) if to the MTI Affiliate, to:
Micron Electronics, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
3.2 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
all parties need not sign the same counterpart.
3.3 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This
Agreement and its Exhibits (a) constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; and (b) are not intended to confer upon any other person
any rights or remedies hereunder.
3.4 SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void
3
4
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
3.5 OTHER REMEDIES; SPECIFIC PERFORMANCE. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
3.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
3.7 RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
3.8 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
any of the parties without prior written consent of the other parties. Any
purported assignment in violation of this Section shall be void.
3.9 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES TO THIS AGREEMENT IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
3.10 COSTS AND ATTORNEYS' FEES. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys'
4
5
fees incurred in each such action, suit or other proceeding, including any and
all appeals or petitions therefrom.
3.11 TITLES AND HEADINGS. The titles, captions and headings of
this Agreement are included for ease of reference only and will be disregarded
in interpreting or construing this Agreement. Unless otherwise specifically
stated, all references herein to "sections" and "exhibits" will mean "sections"
and "exhibits" to this Agreement.
3.12 AMENDMENT AND WAIVERS. This Agreement may be amended only
by a written agreement executed by each of the parties hereto; provided,
however, that any amendment to this Agreement must be approved on the part of
the Company by the board of directors of the Company, including the affirmation
vote of at least one director that is not affiliated with Interland. No
amendment of or waiver of, or modification of any obligation under this
Agreement will be enforceable unless set forth in a writing signed by the party
against which enforcement is sought. Any amendment effected in accordance with
this section will be binding upon all parties hereto and each of their
respective successors and assigns. No delay or failure to require performance of
any provision of this Agreement shall constitute a waiver of that provision as
to that or any other instance. No waiver granted under this Agreement as to any
one provision herein shall constitute a subsequent waiver of such provision or
of any other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically waived.
5
6
IN WITNESS WHEREOF, the parties have executed this Shareholder
Agreement on the date and year first written above.
MICRON ELECTRONICS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
RESTRICTED PARTIES:
Name: Name:
-------------------------------- --------------------------------
By: By:
---------------------------------- ----------------------------------
Title: Title:
------------------------------- -------------------------------
Number of shares of common stock of Number of shares of common stock of
the Company owned beneficially and of the Company owned beneficially and of
record. record.
---------------------------- ----------------------------
Name: Name:
-------------------------------- --------------------------------
By: By:
---------------------------------- ----------------------------------
Title: Title:
------------------------------- -------------------------------
Number of shares of common stock of Number of shares of common stock of
the Company owned beneficially and of the Company owned beneficially and of
record. record.
---------------------------- ----------------------------
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
7
RESTRICTED PARTIES:
-------------------
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxxx
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
8
RESTRICTED PARTIES:
-------------------
CREST COMMUNICATIONS PARTNERS L.P.
By: Crest Communications Holdings LLC,
its Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Managing Director
CREST ENTEPRENEURS FUND L.P.
By: Crest Communications Holdings LLC,
its Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
9
RESTRICTED PARTIES:
The undersigned Shareholder joins this Agreement only with respect to the
number of shares beneficially owned by such shareholder that are set forth
below. As used in this Agreement, with respect to the undersigned Shareholder,
the term "Shares" shall refer only the number of shares set forth below. In
addition, all representations and warranties of the undersigned shareholder as
set forth in Section 2 of this Agreement shall refer only to the number of
shares beneficially owned by such shareholder that are set forth below.
BOULDER VENTURES, III L.P.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
Number of shares of common stock of the Company
owned beneficially and of record for purposes of this
Agreement 817,297
The undersigned Shareholder joins this Agreement only with respect to the
number of shares beneficially owned by such shareholder that are set forth
below. As used in this Agreement, with respect to the undersigned Shareholder,
the term "Shares" shall refer only the number of shares set forth below. In
addition, all representations and warranties of the undersigned shareholder as
set forth in Section 2 of this Agreement shall refer only to the number of
shares beneficially owned by such shareholder that are set forth below.
BOULDER VENTURES, III (ANNEX) L.P.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
Number of shares of common stock of the Company
owned beneficially and of record for purposes of this
Agreement 49,675
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
10
RESTRICTED PARTIES:
The undersigned Shareholder joins this Agreement only with respect to the
number of shares beneficially owned by such shareholder that are set froth
below. As used in this Agreement, with respect to the undersigned Shareholder,
the term "Shares" shall refer only the number of shares set forth below. In
addition, all representations and warranties of the undersigned shareholder as
set forth in Section 2 of this Agreement shall refer only to the number of
shares beneficially owned by such shareholder that are set forth below.
BANCBOSTON VENTURES INC
By: M. Xxxxx XxXxxxxxx
----------------------
Name: M. Xxxxx XxXxxxxxx
Title: Vice President
Number of shares of common stock of the Company
owned beneficially and of record for purposes of this
Agreement: 1,241,032
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
11
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first written above.
THE COMPANY:
INTERLAND, INC.
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
MICRON:
MICRON ELECTRONICS, INC.
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
RESTRICTED PARTIES:
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------------------
Xxxxxxxx Xxxxxxxxx
THE XXXXXXXXX FAMILY HOLDING COMPANY, L.P.
BY ITS GENERAL PARTNER, XXXXXXXX XXXXXXXXX
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
----------------------------------
Title: General Partner
-----------------------------------------
THE XXXXXXXXX FAMILY TRUST U/A 5/4/00
By:
-------------------------------------------------
Name: Xxxxxxx Xxxxxx Xxxx
----------------------------------
Title: Trustee
-----------------------------------------
[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
5
12
EXHIBIT A
INTERLAND FOUNDERS
Xxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxx
13
EXHIBIT B
MTI AFFILIATE
Xxxx X. Xxxxxx
-2-
14
EXHIBIT A
RESTRICTED PARTIES
Xxxxxxxx Xxxxxxxxx
The Xxxxxxxxx Family Holding Company, L.P.
THE XXXXXXXXX FAMILY TRUST U/A 5/4/00, XXXXXXX XXXXXX XXXX, TRUSTEE
