EXHIBIT 4.08
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made as of February 8, 2002, by and
among Interland, Inc., a Minnesota corporation ("Interland"), Xxxxxxx Xxxxxx
("Xxxxxx"), Xxxxx Xxxxxxx ("Xxxxxxx," and together with Xxxxxx, "Shareholders"),
and SunTrust Bank, a Georgia banking corporation, as escrow agent ("Escrow
Agent").
RECITALS
A. Interland and Shareholders are parties to that certain Agreement and
Plan of Merger dated February 8, 2002 (the "Merger Agreement"), by and
among Interland, Montana Acquisition Company, Inc., a Missouri
corporation ("Merger Sub"), XxxxxxxXxxx.Xxx, Inc., a Missouri
corporation (the "Company"), and Shareholders, pursuant to which
Merger Sub shall merge with and into the Company and Interland shall
issue to Shareholders an aggregate of 5,375,000 shares of the common
stock of Interland (the "Common Stock"). Capitalized terms used but
not otherwise defined in this Agreement shall have the meanings
assigned to them in the Merger Agreement.
B. Pursuant to Section 2.2 of the Merger Agreement, to secure the full,
complete, and timely performance and discharge by Shareholders of
their obligations under Article VIII of the Merger Agreement,
Interland and Shareholders have agreed that Shareholders shall place
in escrow with Escrow Agent an aggregate of 15% of the total number of
shares of Common Stock issued to each of the Shareholders (the "Escrow
Shares"), in the number and proportions as set forth in Exhibit A
attached hereto.
C. The Escrow Shares to be delivered to Escrow Agent pursuant to this
Agreement shall be held by Escrow Agent and released to either
Interland or Shareholders, as the applicable case may be, on the terms
and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto agree as follows:
1. ESTABLISHMENT OF ESCROW.
(a) DEPOSIT OF SHARES AND ASSIGNMENTS. To secure the full, complete, and
timely performance and discharge by Shareholders of their obligations
under Article VIII of the Merger Agreement and to secure the rights of
Interland under Article VIII of the Merger Agreement, Shareholders
hereby grant to Interland a lien upon, security interest in and
security title to, and hereby assign, transfer, pledge and deliver to
Escrow Agent to hold in escrow pursuant to the terms hereof, stock
certificates representing the Escrow Shares issued pursuant to the
Merger Agreement registered in the respective names of the
Shareholders and in the respective amounts set forth on Exhibit A
hereto (the "Initial Escrow Shares"). Notwithstanding anything to the
contrary herein provided, the Escrow Agent shall have no duty or
obligation with respect to the creation, perfection, continuance or
preservation of any lien or security interest, including, but not
limited to, filing any financing statement or continuation statement
or otherwise making any determination or taking any action with
respect to any such lien or security interest. Notwithstanding any
such lien or security interest, the duties and responsibilities of the
Escrow Agent shall be limited to carrying out the duties and
obligations expressly set forth in this Escrow Agreement and holding
and distributing the Escrow Shares in accordance with the terms
hereof. Shareholders are each depositing with Escrow Agent five Stock
Powers, the forms of which are attached as Exhibit B, duly executed in
blank by Shareholders (the "Stock Powers"), with medallion signature
guarantees. Any shares of Interland capital stock or any other
property (other than cash dividends) that result from any share
dividend, reclassification, stock split, spin-off, subdivision or
combination of shares, recapitalization, merger or similar events made
with respect to any Escrow Shares held in escrow under this Agreement
("Additional Property") shall be delivered to the Escrow Agent and
shall be held by the Escrow Agent in accordance with this Escrow
Agreement. Unless otherwise indicated, as used in this Escrow
Agreement, the term "Escrow Shares" includes the Initial Escrow Shares
and any Additional Property. The Escrow Agent acknowledges receipt of
the Initial Escrow Shares and agrees to accept delivery of any
Additional Property. The Escrow Agent hereby agrees to act as escrow
agent and to hold, safeguard and disburse the Escrow Shares pursuant
to the terms and conditions hereof. Escrow Agent, Shareholders and
Interland acknowledge and agree that Shareholders are entering into
this Agreement for the purpose of bestowing upon Escrow Agent in favor
of Interland control over the Escrow Shares with the intent, and for
the purpose, of perfecting Interland's security interest in the Escrow
Shares. The Shareholders also agree that Interland may file a UCC Form
1 setting forth its security interest in the Escrow Shares.
(b) DIVIDENDS; VOTING AND RIGHTS OF OWNERSHIP. Any cash dividends, (except
for Additional Property) made in respect of the Escrow Shares shall be
distributed currently by Interland to the Shareholders on a pro rata
basis. Each Shareholder shall have the right to vote the Escrow Shares
held in escrow for the account of such Shareholder so long as such
Escrow Shares are held in escrow, and Interland and the Escrow Agent,
but only as directed in writing by Interland, shall take all steps
necessary to allow the exercise of such rights.
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2. CLAIMS.
(a) MAKING A CLAIM. Interland may at any time and from time to time after
the Threshold Amount (as defined in the Merger Agreement) has been
met, until all of the Escrow Shares shall have been released hereunder
as provided in Section 4 hereof, assert one or more claims (a "Claim")
against the Escrow Shares with respect to any matter giving rise to a
claim for indemnification against Shareholders pursuant to Article
VIII of the Merger Agreement by giving written notice of the Claim
(the "Notice of Claim") to Escrow Agent and Shareholders, which notice
shall (i) identify and describe the nature of the Claim in reasonable
detail; (ii) identify generally the section(s) of the Merger Agreement
or the applicable agreement alleged to have been breached; and (iii)
state the amount of the Claim, to the extent known ("Claim Amount").
Escrow Agent shall be entitled to conclusively assume, without
inquiry, that any Notice of Claim furnished to Escrow Agent conforms
to the requirements of the Merger Agreement.
(b) SATISFACTION OF CLAIMS. (i) If a Notice of Claim is given during the
term hereof and Interland and the Escrow Agent do not receive, within
30 business days after the Notice of Claim was received by the Escrow
Agent, a notice from the Shareholders (the "Shareholders' Notice")
stating that a dispute (the "Dispute") exists relating to the Notice
of Claim and the basis of such Dispute in reasonable detail to enable
Interland to evaluate the Dispute, Escrow Agent shall promptly, on the
31st business day after the Escrow Agent's receipt of the Notice of
Claim, release from escrow for transfer to Interland that number of
Escrow Shares equal to the quotient of (A) the Claim Amount, divided
by (B) the average last reported price per share of Interland common
stock (as reported in The Wall Street Journal) (the "Market Price")
for the last ten (10) trading days immediately preceding the 31st
business day after the Escrow Agent's receipt of the relevant Notice
of Claim. (ii) If Interland and Escrow Agent receive a Shareholders'
Notice within such 30 business day period, Escrow Agent shall continue
to hold the Escrow Shares until such Dispute is resolved (provided,
however, that in such event the Market Price shall be the average
closing price per share of Interland common stock as reported in The
Wall Street Journal for the last ten (10) trading days immediately
preceding the receipt by Escrow Agent of the Shareholders' Notice).
Interland and the Shareholders shall attempt in good faith to resolve
the Dispute. If Interland and Shareholders are able to resolve such
Dispute, they shall jointly notify Escrow Agent of such resolution and
Escrow Agent shall promptly release from escrow for transfer to
Interland that number of Escrow Shares agreed upon by Interland and
Shareholders as set forth in the joint notice, which Interland and
Shareholders hereby agree shall equal to the quotient of the final
amount Interland and Shareholders determine is owed to Interland, if
any, divided by the Market Price. If the Shareholders and Interland
fail to resolve the Dispute within 30 calendar days after Interland
and Escrow Agent receive the Shareholders' Notice, the Dispute may at
any time thereafter be submitted by Interland or the Shareholders to
arbitration in Atlanta, Georgia before a single arbitrator reasonably
acceptable to both Interland and the Shareholders in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association then in effect. Interland and the Shareholders will
equally split the cost of the arbitration filing and hearing fees, and
the arbitrator will have authority to award attorneys' fees to the
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prevailing party. Interland and the Shareholders agree that the
arbitrator's award shall be final and binding upon them with respect
to the Dispute and judgment may be entered thereon in any court having
jurisdiction thereof; provided, however, that notwithstanding any
provision contained herein to the contrary the parties hereto may
settle any dispute by mutual agreement at any time. Interland and the
Shareholders agree that promptly after the issuance of such final
award by the arbitrator, Escrow Agent shall release from escrow for
transfer to Interland that number of Escrow Shares equal to the
quotient of the final amount of such award that was awarded to
Interland by the arbitrator, if any, divided by the Market Price.
(c) SATISFACTION. Escrow Agent shall not be required to determine whether
any Claim has been satisfied from property other than the Escrow
Shares, and shall, in accordance with the terms of this Agreement,
deliver all or any portion of the Escrow Shares to Interland to the
extent required to satisfy such Claim without regard to any other
property which may have been used to satisfy all or a portion of such
obligation.
(d) NO CONFLICT. As to Interland and Shareholders, nothing contained in
this Section 2 shall be deemed to amend or modify the Merger Agreement
or any other document executed by such parties in connection with the
Merger.
3. RIGHTS CUMULATIVE. The rights, powers and remedies given to each party
by this Escrow Agreement shall be in addition to all rights, powers
and remedies given to such party by virtue of any statute or rule of
law and all such rights, powers and remedies are cumulative and not
alternative, and may be exercised and enforced successively or
concurrently. Any forbearance or failure or delay by a party in
exercising any right, power or remedy hereunder shall not be deemed to
be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder shall not preclude
the further exercise thereof; and every right, power and remedy of a
party hereunder shall continue in full force and effect until such
right, power or remedy is specifically waived by an instrument in
writing executed by such party. Interland and Shareholders agree that
the rights, remedies and procedures specified herein are the exclusive
rights, remedies and procedures by which the Escrow Shares are to be
distributed to Interland or the Shareholders, notwithstanding, for
example, any other rights Interland may have as a secured party under
the Uniform Commercial Code.
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4. RELEASE OF ESCROW SHARES. If, on the first anniversary of the date of
this Agreement, there is no pending Notice of Claim or Dispute, the
Escrow Agent shall, without further act or consent of the Shareholders
or Interland, deliver to Shareholders all of the Escrow Shares then
remaining in escrow. If, on the first anniversary of the date of this
Agreement, there is one or more Notice(s) of Claim or Dispute(s)
pending, Escrow Agent shall retain in escrow the number of Escrow
Shares which have a value (based on the applicable Market Price) equal
to two times the aggregate amount of the Claims and Disputes pending
as stated in the Notice of Claim(s), and shall, without further act or
consent of the Shareholders or Interland, deliver to Shareholders the
balance of the remaining Escrow Shares. The Escrow Shares retained in
escrow beyond the first anniversary of the date of this Agreement as
provided in this Section 4 shall be released only upon and pursuant to
mutual agreement of Interland and the Shareholders or a final award by
the arbitrator.
To the extent Escrow Shares are required, pursuant to the terms of this
Agreement, to be released to Shareholders, the lien upon and security interest
in and security title to such Escrow Shares granted to Interland hereunder shall
thereupon be released.
5. DUTIES AND RESPONSIBILITIES OF ESCROW AGENT.
(a) POWER. Escrow Agent shall have only the powers, authorities, and
discretion expressly conferred upon it by this Agreement and shall not
be required to perform any act or to do anything not within such
powers, authorities and discretion, except upon the joint written
instructions of Interland and Shareholders. Notwithstanding such
express duties, Escrow Agent shall not be liable for any act or
omission, except for Escrow Agent's bad faith, gross negligence or
intentional misconduct.
(b) ACCOUNT. Escrow Agent shall provide Interland and Shareholders with a
quarterly accounting of the Escrow Shares and any transactions
affecting the Escrow Shares.
(c) GOOD FAITH. Escrow Agent shall not be liable for any action taken by
it in good faith and believed by it to be authorized or within the
powers, authorities or discretion conferred upon it by this Agreement
and shall be protected in acting or refraining from acting in reliance
upon the advice of legal counsel or upon any certificate, request,
instruction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
(d) COMPENSATION. For its services hereunder, Escrow Agent shall be
entitled to receive reasonable compensation, including the costs and
expenses of defending itself against any claim of liability arising
out of or in connection with its services hereunder and the costs and
expenses of Escrow Agent incurred in connection with this Agreement,
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including, but not limited to, the cost of legal services in case
Escrow Agent deems it necessary to retain legal counsel. The
compensation of Escrow Agent shall be as set forth in Exhibit C
attached hereto. As between Interland and Shareholders, Interland
shall be responsible for all of the compensation and indemnification
of Escrow Agent.
(e) CONTROVERSY OR DISPUTE. As an additional consideration for and as an
inducement for Escrow Agent to act hereunder, it is understood and
agreed that, in the event of any disagreement between the parties to
this Agreement or among them or any other person(s) resulting in
adverse claims and demands being made in connection with or for any
property involved in or affected by this Agreement, Escrow Agent shall
be entitled, at the option of Escrow Agent, to refuse to comply with
the demands of such parties, or any of such parties, so long as such
disagreement shall continue. In such event, Escrow Agent shall make no
delivery or other disposition of the Escrow Shares or any part of such
Escrow Shares. Anything herein to the contrary notwithstanding, Escrow
Agent shall not be or become liable to such parties or any of them for
the failure of Escrow Agent to comply with the conflicting or adverse
demands of such parties or any of such parties.
Escrow Agent shall be entitled to continue to refrain and refuse to deliver
or otherwise dispose of the Escrow Shares or any part thereof or to otherwise
act hereunder, as stated above, unless and until:
1. the rights of such parties have been finally settled by binding
arbitration or duly adjudicated in a court having jurisdiction of the parties
and the Escrow Shares; or
2. the parties have reached an agreement resolving their differences and
have notified Escrow Agent in writing of such agreement and have provided Escrow
Agent with indemnity satisfactory to Escrow Agent against any liability, claims
or damages resulting from compliance by Escrow Agent with such agreement.
In the event of a disagreement between such parties as described above,
Escrow Agent shall have the right, in addition to the rights described above and
at the option of Escrow Agent, to tender into the registry or custody of any
court having jurisdiction, all property comprising the Escrow Shares and may
take such other legal action as may be appropriate or necessary, in the opinion
of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent
shall be discharged from all further duties under this Agreement; provided,
however, that the filing of any such legal proceedings shall not deprive Escrow
Agent of its compensation hereunder earned prior to such filing and discharge of
Escrow Agent of its duties hereunder.
(f) COMPLIANCE WITH ORDERS. In the event that the Escrow Shares, or any
part thereof, shall be attached, garnished, or levied upon under
process of any court, or the delivery thereof shall be stayed or
enjoined by any order or writ of any court or any other order,
6
judgment or decree shall be made or entered by any court affecting the
contents or performance of this Agreement, or any part hereof, Escrow
Agent shall not be required to ascertain whether any such process,
order, writ, judgment, or decree is valid or enforceable, and Escrow
Agent is hereby expressly authorized, in its sole discretion, to obey
and comply with any and all processes, orders, writs, judgments or
decrees entered or issued by any court of competent jurisdiction.
Escrow Agent shall give notice by fax to Interland and Shareholders
promptly after Escrow Agent's receipt of any notice of attachment,
garnishment, levy, process, order, or writ of any court or any other
order, judgment, or decree affecting the contents or performance of
this Agreement. In the event Escrow Agent shall obey or comply with
any such process, order, writ, judgment, or decree, it shall not be
liable to Interland or Shareholders or to any other person, firm, or
corporation by reason of such obedience or compliance, notwithstanding
that such process, order, writ, judgment, or decree shall be
subsequently reversed, modified, annulled, set aside, or vacated.
(g) CONSULTATION WITH COUNSEL. The Escrow Agent may from time to time
consult with legal counsel of its own choosing in the event of any
disagreement, controversy, question or doubt as to construction of any
of the provisions of this Agreement or its duties hereunder, and it
shall incur no liability and shall be fully protected in acting in
accordance with the opinion and instruction of such counsel.
(h) RESIGNATION. Escrow Agent may resign by giving 30 days prior written
notice to Interland and Shareholders, and thereafter Escrow Agent
shall deliver all remaining Escrow Shares, together with its account
therefor, in accordance with the joint written instructions of
Interland and Shareholders. If no such instructions shall be received
by Escrow Agent within 30 days after the receipt of Escrow Agent's
notice, Escrow Agent shall be authorized and empowered to deliver the
Escrow Shares, together with its account therefor, to any bank or
trust company organized and doing business under the laws of the
United States of America and the State of Georgia, and with a capital
surplus of at least $35,000,000, which shall have been designated by
Interland and which shall have indicated in writing its willingness to
serve as Escrow Agent under this Agreement. In the event no successor
escrow agent has been appointed on or prior to the date such
resignation is to become effective, Escrow Agent shall be entitled to
tender into the custody of a court of competent jurisdiction all
assets then held by it hereunder and shall thereupon be relieved of
all further duties and obligations under this Agreement. Escrow Agent
shall have no responsibility for the appointment of a successor escrow
agent hereunder.
(i) INDEMNIFICATION. Interland agrees to indemnify and hold the Escrow
Agent and each of its officers, directors, agents and employees
harmless from and against any losses, liabilities, expenses (including
attorney's fees and expenses), damages, claims or demands directly or
7
indirectly arising out of or connected in any way with Escrow Agent's
appointment as escrow agent under this Agreement or Escrow Agent's
obligations under this Agreement, except as result from the Escrow
Agent's bad faith, gross negligence, or intentional misconduct. This
Section 5(i) shall survive the resignation of the Escrow Agent and the
termination of this Agreement.
6. TERMINATION. This Agreement shall terminate on the date upon which all
of the Escrow Shares shall have been completely distributed pursuant
to this Agreement. Upon the termination of this Agreement pursuant to
this Section 6, no party hereto shall have any claim under this
Agreement against any other party except under Sections 5(d) and 5(i).
The termination of this Agreement or the insufficiency of the Escrow
Shares to satisfy any Claim of Interland shall not terminate, limit,
or otherwise alter or affect the obligations or liabilities of
Shareholders under any other agreement between the parties, including,
but not limited to, the Merger Agreement.
7. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and
shall be deemed to have been duly given, made and received (a) when
delivered against receipt, (b) upon transmitter's confirmation of the
receipt of a facsimile transmission, (c) upon confirmed delivery by a
standard overnight carrier, or (d) upon expiration of three business
days after the day when deposited in the United States mails, first
class postage prepaid, addressed as set forth below:
If to Interland:
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxx.
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxx.
Xxxxx 000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
8
If to Shareholders:
Xx. Xxxxxxx Xxxxxx
0000 X. Xxxxxxxx
Xxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
and
Xx. Xxxxx Xxxxxxx
0000 X. Xxxxxx Xxxxxx
Xxx. X
Xxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
With a copy to:
Xxxxx Xxxx LLP
000 Xxxx 00xx Xx.
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: P. Xxxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent:
Suntrust Bank
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Any party may alter the address to which communications or copies are to be
sent by giving notice of such change of address to the other party hereto in
conformity with the provisions of this paragraph for the giving of notice.
8. AMENDMENTS. This Agreement may not be amended, modified, supplemented
or otherwise altered, except by a writing signed by all the parties
hereto.
9. INDULGENCES, NOT WAIVERS. Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
10. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control
and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing signed by
the parties hereto.
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11. SECTION HEADINGS. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect
its interpretation.
12. FURTHER ASSURANCES. Each of the parties hereto shall execute and deliver
all other instruments and take all other actions that the other parties
hereto may reasonably request from time to time to effectuate the
transactions provided for herein.
13. PROVISIONS SEPARABLE. The provisions of this Agreement are independent and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in whole or in
part.
14. APPLICABLE LAW. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the State of Georgia,
notwithstanding any Georgia or other conflict-of-law provisions to the
contrary. Interland and each of the Shareholders hereby agree to submit to
the nonexclusive jurisdiction of the courts of the State of Georgia and the
federal courts within the State of Georgia and hereby appoint the Secretary
of State of the State of Georgia as agent for the purpose of receiving
service of process in respect of any proceeding in connection herewith.
15. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Agreement, with
all signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Agreement.
16. CONSTRUCTION. The parties hereto acknowledge and agree that each party has
participated in the drafting of this Agreement and that this document has
been reviewed by the respective legal counsel for the parties hereto and
that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be applied to the
interpretation of this Agreement. No inference in favor of, or against, any
party shall be drawn from the fact that one party has drafted any portion
hereof.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, each of the parties hereto has executed and delivered
this Agreement as of the date first above written.
INTERLAND:
INTERLAND, INC., a Minnesota corporation
By: /s/ Xxxx Xxxxxx
------------------------------------------
Its: Chief Executive Officer
-----------------------------------------
SHAREHOLDERS:
/s/ Xxxxxxx Xxxxxx
---------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx
ESCROW AGENT:
SUNTRUST BANK
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Its: Assistant Vice President
------------------------------------------
[Signature Page to Escrow Agreement]
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EXHIBIT A
PLEDGE OF ESCROW STOCK BY SHAREHOLDERS
TOTAL HELD BACK PERCENTAGE
NAME SHARES HELD SHARES OF TOTAL
--------------- -------------- -------------- --------------
Xxxxxxx Xxxxxx 3,225,000 483,750 [15%]
Xxxxx Xxxxxxx 2,150,000 322,500 [15%]
Total: 5,375,000 806,250
-------------- --------------
A-1
EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
to Interland, a Minnesota corporation (the "Company"), __________ shares of
common stock, par value $.01 per share, of the Company represented by
Certificate No. _____ in the name of the undersigned on the books of the
Company. The undersigned does hereby irrevocably constitute and appoint any
officer or authorized agent of the Company as attorney to transfer said stock on
the books of the Company with full power of substitution in the premises.
DATED as of the _____ day of _____________, 200_.
By:
------------------------------
Xxxxxxx Xxxxxx
Signature(s) guaranteed by:*
__________________________________
*THE SIGNATURE(S) MUST BE
GUARANTEED BY A BANK, SAVINGS AND
LOAN ASSOCIATION, STOCKBROKER, OR
CREDIT UNION WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTY
MEDALLION PROGRAM PURSUANT TO
SECURITIES EXCHANGE ACT RULE
17AD-15. NOTARIZATION BY A NOTARY
PUBLIC IS NOT ACCEPTABLE.
B-1
EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
to Interland, a Minnesota corporation (the "Company"), __________ shares of
common stock, par value $.01 per share, of the Company represented by
Certificate No. _____ in the name of the undersigned on the books of the
Company. The undersigned does hereby irrevocably constitute and appoint any
officer or authorized agent of the Company as attorney to transfer said stock on
the books of the Company with full power of substitution in the premises.
DATED as of the _____ day of _____________, 200_.
By:
-----------------------------------
Xxxxx Xxxxxxx
Signature(s) guaranteed by:*
----------------------------------
*THE SIGNATURE(S) MUST BE
GUARANTEED BY A BANK, SAVINGS AND
LOAN ASSOCIATION, STOCKBROKER, OR
CREDIT UNION WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTY
MEDALLION PROGRAM PURSUANT TO
SECURITIES EXCHANGE ACT RULE
17AD-15. NOTARIZATION BY A NOTARY
PUBLIC IS NOT ACCEPTABLE.
B-2
EXHIBIT C
INTERLAND, INC.
SUNTRUST BANK AS ESCROW AGENT
SCHEDULE OF FEES
----------------
The annual fee of $2,500 for administering this Escrow Agreement is payable
in advance at the time of closing and if applicable, will be invoiced each year
to the appropriate party(ies) on the anniversary date of the closing of the
Escrow Agreement. A one-time $500.00 legal review fee is also payable in advance
at the time of closing.
Out of pocket expenses such as, but not limited to postage, courier,
overnight mail, insurance, money wire transfer, long distance telephone charges,
facsimile, stationery, travel, legal or accounting, etc., will be billed at
cost.
These fees do not include extraordinary services, which will be priced
according to time and scope of duties. The fees shall be deemed earned in full
upon receipt by the Escrow Agent, and no portion shall be refundable for any
reason, including without limitation, termination of the Escrow Agreement.
It is acknowledged that the schedule of fees shown above are acceptable for the
services mutually agreed upon and the undersigned authorizes SunTrust Bank to
perform said services.
C-1
1598248
