EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into as
of March 22, 2001 by and between Micron Electronics, Inc., a Minnesota
corporation ("COMPANY"), Interland, Inc., a Georgia corporation ("INTERLAND")
and Micron Technology, Inc. ("MTI").
RECITALS
WHEREAS, on the date hereof, MTI has acquired approximately 60% of the
outstanding Common Stock of Company;
WHEREAS, Company, Interland, and Interland Acquisition Corporation, a
Delaware corporation and wholly owned first tier subsidiary of the Company
("MERGER SUB") have entered into an Agreement and Plan of Merger (the "MERGER
AGREEMENT") dated as of even date hereof, pursuant to which Merger Sub will
merge with and into Interland in a reverse triangular merger with Interland to
be the surviving corporation of the Merger (the "MERGER");
WHEREAS, in connection with the Merger, Company desires to grant to MTI
certain registration rights with respect to the shares of the Company Common
Stock that are currently held by MTI (the "MTI SHARES"), subject to the terms
and conditions set forth in this Agreement;
WHEREAS, capitalized terms used in this Agreement shall have the meanings
ascribed to them in Section 2 hereof, however capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. REGISTRATION RIGHTS.
1.1. DEMAND REGISTRATION RIGHTS OF MTI.
1.1.1. REQUEST.
At any time after the Effective Time contemplated in the Merger
Agreement, MTI may request registration for sale under the Act of all or part of
the Registrable Securities then held by MTI, PROVIDED that such requested
registration relates to a number of shares of Registrable Securities which
represents at least 25% of the total number of shares of Registrable Securities
(or a lesser percentage if the anticipated aggregate offering price would exceed
$5 million), and upon such request the Company will promptly take the actions
specified in Section 1.1.2.
1.1.2. DEMAND PROCEDURES.
After receipt by the Company of a registration request under Section
1.1.1 (which request shall specify the number of shares proposed to be
registered and sold and the manner in which such sale is proposed to be
effected), the Company shall, as expeditiously as practicable (i) file with the
SEC under the Act a registration statement on the appropriate form concerning
all Registrable Securities specified in the demand request and (ii) use its
reasonable efforts to cause the registration statement to be declared effective.
At the request of MTI, the Company shall use its reasonable efforts to cause
each offering pursuant to Section 1.1.1 to be managed, on a firm commitment
basis, by a recognized regional or national underwriter selected by MTI and
approved by the Company, such approval not to be unreasonably withheld. In
connection with such offering, MTI shall enter into an underwriting agreement in
customary form. The Company shall not be obligated to effect more than two
registrations requested by MTI under Section 1.1.1, PROVIDED, HOWEVER, that each
such request shall be deemed satisfied only when a registration statement
covering all Registrable Securities specified in notices received as aforesaid,
for sale in accordance with the method of disposition specified by MTI, has
become effective and, if the method of disposition is a firm commitment
underwritten public offering, at least 75% of the Registrable Securities covered
thereby shall have been sold pursuant thereto. Except for registration
statements on Form X-0, X-0 or another form not available for registering
securities for sale to the public, or any successor thereto, the Company will
not, without the consent of MTI, file with the SEC any other registration
statement with respect to its Common Stock, whether for its own account or that
of other shareholders, from the date of receipt of a notice from MTI pursuant to
this Section 1.1 until the completion of the period of distribution of the
securities contemplated thereby as provided in Section 1.4; PROVIDED, HOWEVER,
that the Company may include securities offered by the Company for its own
account in such offering pursuant to this Section 1.1, subject to reduction as
provided in Section 1.1.4 of this Agreement.
1.1.3. DELAY BY COMPANY.
The Company shall not be required to proceed to effect a demand
registration under the Act pursuant to Section 1.1.1 above if (i) the Company
receives a request for registration under Section 1.1.1 less than 90 days
preceding the anticipated effective date of a proposed underwritten public
offering of securities of the Company approved by the Company's Board of
Directors prior to the Company's receipt of the request; (ii) within 180 days
prior to any such request for registration, a registration of securities of the
Company has been effected in which MTI had the right to participate pursuant to
this Section 1.1 or Section 1.2 hereof; or (iii) the Board of Directors of the
Company reasonably determines in good faith that effecting such a demand
registration at such time would have a material adverse effect upon a proposed
sale of all (or substantially all) of the assets of the Company, or a merger,
share exchange, reorganization, recapitalization, or any other form of business
combination or transaction materially affecting the capital structure, or equity
ownership of the Company, or would otherwise be seriously detrimental to the
Company because the Company was then in the process of raising capital in the
public or private markets; PROVIDED, HOWEVER, that the Company may only delay a
demand registration pursuant to this Section 1.1.3 for a period not exceeding 90
days (or until such earlier time as such transaction is consummated or no longer
proposed) and may only defer any such filing pursuant to this Section 1.1.3 once
per calendar year. The Company shall promptly notify MTI in writing of any
decision not to effect any such request for registration pursuant to this
Section 1.1.3, which notice shall set forth in reasonable detail the reason for
such decision and
shall include an undertaking by the Company promptly to notify MTI as soon as a
demand registration may be effected.
1.1.4. REDUCTION.
If a demand registration is an underwritten registration and the
managing underwriters advise the Company and MTI in writing that in their
opinion the number of shares of Common Stock requested to be included in such
registration exceeds the number which can be sold in such offering, then the
Company shall include in such demand registration (i) first, the shares proposed
to be sold by MTI exercising rights under Section 1.1.1, (ii) second, the shares
proposed to be sold by the Company, and (iii) third, the shares of any other
shareholders proposing to sell pursuant to such registration.
1.1.5. WITHDRAWAL.
MTI may withdraw at any time before a registration statement is
declared effective, and the Company may withdraw such registration statement if
no Registrable Securities are then proposed to be included (and if withdrawn by
the Company, MTI shall not be deemed to have requested a demand registration for
purposes of Section 1.1.1 hereof). If the Company withdraws a registration
statement under this Section 1.1.5 in respect of a registration for which the
Company would otherwise be required to pay expenses under Section 1.6.2 hereof,
MTI shall reimburse the Company for all expenses of such registration in
proportion to the number of shares MTI shall have requested to be registered.
Notwithstanding the foregoing, however, if at the time of the withdrawal, MTI
has learned of a material adverse change in the condition, business or prospects
of the Company from that known to MTI at the time of its request, then MTI shall
not be required to pay any of said registration expenses and the Company shall
be deemed not to have effected a registration pursuant to Section 1.1.2 of this
Agreement.
1.2. PIGGYBACK REGISTRATION RIGHTS.
1.2.1. REQUEST.
If at any time or times after the date of this Agreement the Company
proposes to make a registered public offering of any of its securities under the
Act (whether to be sold by it or by one or more selling shareholders), other
than an offering pursuant to a demand registration under Section 1.1.1 or
Section 1.3 hereof or an offering registered on Form S-8 or Form S-4, or
successor forms relating to employee stock plans and business combinations, the
Company shall, not less than 20 days prior to the proposed filing date of the
registration form, give written notice of the proposed registration to MTI
specifying in reasonable detail the proposed transaction to be covered by the
registration statement, and at the written request of MTI delivered to the
Company within 20 days after giving such notice, shall include in such
registration and offering, and in any underwriting of such offering, all
Registrable Securities as may have been designated in MTI's request. The Company
shall have no obligation to include shares of Common Stock owned by MTI in a
registration statement pursuant to this Section 1.2, unless and until MTI (a) in
connection with any underwritten offering, agrees to enter into an underwriting
agreement, a custody agreement and power of attorney and any other customary
documents required in an
underwritten offering all in customary form and containing customary provisions
(but not requiring MTI to provide indemnification or contribution more extensive
than is set forth in Section 1.6.3 hereof) and (b) shall have furnished the
Company with all information and statements about or pertaining to MTI in such
reasonable detail and on such timely basis as is reasonably deemed by the
Company to be legally required with respect to the preparation of the
registration statement.
1.2.2. REDUCTION.
If a registration in which MTI has the right to participate pursuant
to this Section 1.2 is an underwritten registration, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company shall include in such
registration (i) first, the securities of the Company proposed to be sold by the
Company, (ii) second, the shares proposed to be sold by MTI exercising rights
under Section 1.2.1, and (iii) third, the shares of any other shareholders
proposing to sell shares of Common Stock pursuant to such registration.
1.3. REGISTRATION ON FORM S-3.
Subject to the limitations set forth in Section 1.1.3, if at any
time the Company is eligible to use Form S-3 (or any successor form) for
secondary sales, MTI may request (by written notice to the Company stating the
number of Registrable Securities proposed to be sold and the intended method of
disposition) that the Company file a registration statement on Form S-3 (or any
successor form) for a public sale of all or any portion of the Registrable
Securities beneficially owned by it (which may include a "shelf" registration
under Rule 415 under the Act, or any successor rule), PROVIDED that the
reasonably anticipated aggregate price to the public of such Registrable
Securities shall be at least $2.5 million. Upon receiving such request, the
Company shall use its reasonable best efforts to promptly file a registration
statement on Form S-3 (or any successor form) to register under the Act for
public sale in accordance with the method of disposition specified in such
request, the number of shares of Registrable Securities specified in such
request and shall otherwise carry out the actions specified in Section 1.1.2 and
1.4. The Company shall not be obligated to file more than two registration
statements on Form S-3 (or any successor form) pursuant to this Section 1.3
within any eighteen month period.
1.4. REGISTRATION PROCEDURES. Whenever MTI has requested that any shares
of Common Stock be registered pursuant to Sections 1.1, 1.2 or 1.3 hereof, the
Company shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with
respect to such shares and use its reasonable best efforts to cause such
registration statement to become effective as soon as reasonably practicable
thereafter (provided that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company shall furnish counsel for
MTI with copies of all such documents proposed to be filed) and to cause such
registration statement to comply as to form and content in all material respects
with the SEC's forms, rules and regulations;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than 120 days (2 years in the case of a registration pursuant to
Section 1.3 hereof) or until MTI has completed the distribution described in
such registration statement, whichever occurs first;
(c) furnish to MTI such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus), and such
other documents as MTI may reasonably request;
(d) use its reasonable efforts to register or qualify such shares
under such other securities or blue sky laws of such jurisdictions as MTI
requests (and to maintain such registrations and qualifications effective for a
period of 120 days (2 years in the case of a registration pursuant to Section
1.3 hereof) or until MTI has completed the distribution of such shares,
whichever occurs first), and to do any and all other acts and things which may
be necessary or advisable to enable MTI to consummate the disposition in such
jurisdictions of such shares (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not be
required but for this subsection (4), (ii) subject itself to taxation in any
such jurisdiction, or (iii) file any general consent to service of process in
any such jurisdiction); PROVIDED that, notwithstanding anything to the contrary
in this Agreement with respect to the bearing of expenses, if any such
jurisdiction shall require that expense incurred in connection with the
qualification of such shares in that jurisdiction be borne in part or full by
MTI, then MTI shall pay such expenses to the extent required by such
jurisdiction;
(e) notify MTI, at any time when a prospectus relating thereto is
required to be delivered under the Act within the period that the Company is
required to keep the registration statement effective, of the happening of any
event as a result of which the prospectus included in any such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and promptly prepare,
file and furnish to MTI a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such shares, such prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or, in light of the circumstances then existing,
necessary to make the statements therein not misleading;
(f) cause all such shares to be listed on securities exchanges, if
any, on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such shares not
later than the effective date of such registration statement;
(h) enter into such customary agreements and take all such other
actions as MTI reasonably requests (and subject to its reasonable approval) in
order to expedite or facilitate the disposition of such shares;
(i) make available for inspection by MTI, by any underwriter
participating in any distribution pursuant to such registration statement, and
by any attorney, accountant or other agent retained by MTI or by any such
underwriter, all financial and other records, pertinent corporate documents, and
properties (other than confidential intellectual property) of the Company;
(j) if the offering is underwritten and at the request of MTI, use
its best efforts to furnish on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to MTI, stating that such
registration statement has become effective under the Act and that (A) to the
best knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, (B) the registration statement,
the related prospectus and each amendment or supplement thereof comply as to
form in all material respects with the requirements of the Act (except that such
counsel need not express any opinion as to financial statements or other
financial or statistical data contained therein), (C) to such other customary
matters as reasonably may be requested by counsel for the underwriters or by MTI
or its counsel and (D) (not an opinion but as a negative assurance) that to the
best knowledge of such counsel, such registration statement does not contain a
material misrepresentation or omission to state a material fact necessary to
make the statements therein not misleading; and (ii) a letter dated such date
from the independent public accountants retained by the Company, addressed to
the underwriters and to MTI, stating that they are independent public
accountants within the meaning of the Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Act, and such letter shall additionally cover
such other financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with respect to
such registration as such underwriters reasonably may request; and
(k) in connection with an underwritten offering pursuant to a
registration statement filed pursuant to Section 1.1 hereof, enter into an
underwriting agreement in customary form and containing customary provisions,
including provisions for indemnification of underwriters and contribution, if so
requested by any underwriter.
1.5. HOLDBACK AGREEMENT.
(a) Notwithstanding anything in this Agreement to the contrary, if
after any registration statement to which the rights hereunder apply becomes
effective (and prior to completion of any sales thereunder), the Board of
Directors determines in good faith that the failure of the Company to (i)
suspend sales of stock under the registration statement or (ii) amend or
supplement the registration statement, would have a material adverse effect on
the Company, the Company shall so notify MTI and MTI shall suspend any further
sales under such registration statement until the Company advises MTI that the
registration statement has been amended or that conditions no longer exist which
would require such suspension, PROVIDED that
the Company may impose any such suspension for no more than 30 days and no more
than 2 times during any twelve month period.
(b) In the event that the Company effects a registration of any
securities under the Act in an underwritten public offering, MTI agrees not to
effect any sale, transfer, disposition or distribution, including any sale
pursuant to Rule 144 under the Act, of any Equity Securities (except as part of
such offering) during the 90-day period commencing with the effective date of
the registration statement for any public offering, PROVIDED that all officers,
directors and holders of 5% or more of the Company's outstanding voting
securities enter into agreements providing for similar restrictions on sales.
1.6. REGISTRATION EXPENSES.
1.6.1. MTI EXPENSES.
If, pursuant to Sections 1.1, 1.2 or 1.3 hereof, Registrable
Securities are included in a registration statement, then MTI shall pay all
transfer taxes, if any, relating to the sale of its shares, and any underwriting
discounts or commissions or the equivalent thereof applicable to the sale of its
shares.
1.6.2. COMPANY EXPENSES.
Except for the fees and expenses specified in Section 1.6.1 hereof
and except as provided below in this Section 1.6.2, the Company shall pay all
expenses incident to the registration of shares by the Company and MTI pursuant
to Sections 1.1, 1.2 or 1.3 hereof, and to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, underwriting discounts, fees and expenses (other than MTI's portion of any
underwriting discounts or commissions or the equivalent thereof), printing
expenses, messenger and delivery expenses, and fees and expenses of counsel for
the Company and counsel for MTI (the fees of such counsel not to exceed $20,000
and not to exceed $5,000 in connection with a shelf registration pursuant to
Section 1.3 hereof; PROVIDED that in the case of registrations of shares
pursuant to Section 1.2 hereof, the Company shall not be responsible for counsel
fees of more than $50,000 in the aggregate for all such registrations pursuant
to Section 1.2 hereof) and all independent certified public accountants and
other persons retained by the Company.
1.6.3. INDEMNITY AND CONTRIBUTION.
(a) In the event that any shares owned by MTI are proposed
to be offered by means of a registration statement pursuant to Sections 1.1, 1.2
or 1.3 hereof, to the extent permitted by law, the Company agrees to indemnify
and hold harmless MTI, any underwriter participating in such offering, each
officer, partner, manager and director of such person, each person, if any, who
controls or may control MTI or such underwriter within the meaning of the Act
and each representative of MTI serving on the Board of Directors of the Company
(such underwriter or MTI, its officers, partners, managers, directors and
representatives, and any such other persons being hereinafter referred to
individually as an
"INVESTOR INDEMNIFIED PERSON" and collectively as "INVESTOR INDEMNIFIED
PERSONS") from and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses, including,
without limitation, interest, penalties, and attorneys' fees and disbursements,
asserted against, resulting to, imposed upon or incurred by such Investor
Indemnified Person, directly or indirectly (hereinafter referred to in this
Section 1.6.3 in the singular as a "claim" and in the plural as "claims"), based
upon, arising out of or resulting from any breach of representation or warranty
made by the Company in any underwriting agreement or any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement or any omission or alleged omission to state therein a material fact
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such claim is
based upon, arises out of or results from information furnished to the Company
in writing by such Investor Indemnified Person for use in connection with the
registration statement.
(b) In the event that any shares owned by MTI are proposed
to be offered by means of a registration statement pursuant to Sections 1.1, 1.2
or 1.3 hereof, to the extent permitted by law, MTI agrees to indemnify and hold
harmless the Company, each officer of the Company who signs the Registration
Statement, each director of the Company, any underwriter participating in such
offering, and each person, if any, who controls or may control the Company or
such underwriter within the meaning of the Act (the Company, such officers and
directors of the Company, such underwriter, and any such other persons also
being hereinafter referred to individually as a "COMPANY INDEMNIFIED PERSON" and
collectively as "COMPANY INDEMNIFIED PERSONS") from and against all claims based
upon, arising out of or resulting from any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or any
omission or alleged omission to state therein a material fact necessary in order
to make the statement made therein, in the light of the circumstances under
which they were made, not misleading, but only to the extent that such claim is
based upon, arises out of or results from information furnished to the Company
in writing by MTI explicitly for use in connection with the registration
statement; PROVIDED, HOWEVER, that MTI shall be under no obligation to indemnify
or hold harmless any Company Indemnified Persons with respect to any amount in
excess of the net cash proceeds paid to MTI in connection with any sales of
securities effected under such registration statement.
(c) The indemnification provisions set forth herein shall be
in addition to any liability the Company or MTI may otherwise have to the
Investor Indemnified Persons or Company Indemnified Persons. The Company
Indemnified Persons and the Investor Indemnified Persons are hereinafter
referred to as Indemnified Persons. Promptly after receiving notice of any claim
in respect of which an Indemnified Person may seek indemnification under this
Section 1.6.3, such Indemnified Person shall submit written notice thereof to
either the Company or MTI, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The omission of the Indemnified Person
so to notify the Indemnifying Person of any such claim shall not relieve the
Indemnifying Person from any liability it may have hereunder except to the
extent that (a) such liability was caused or increased by such omission, or (b)
the ability of the Indemnifying Person to reduce such liability was materially
adversely affected by such omission. In addition, the omission of the
Indemnified Person so to notify the Indemnifying Person of any such claim shall
not relieve the Indemnifying Person from any
liability it may have otherwise than hereunder. The Indemnifying Person shall
have the right to undertake, by counsel or representatives of its own choosing,
the defense, compromise or settlement (without admitting liability of the
Indemnified Person) of any such claim asserted, such defense, compromise or
settlement to be undertaken at the expense and risk of the Indemnifying Person,
and the Indemnified Person shall have the right to engage separate counsel, at
its own expense, whom counsel for the Indemnifying Person shall keep informed
and consult with in a reasonable manner; PROVIDED, HOWEVER, if the defendants in
any such action include both the Indemnified Person and the Indemnifying Person
and the Indemnified Person shall have reasonably concluded that there may be a
conflict between the positions of the Indemnifying Person and the Indemnified
Person in conducting the defense of any such action or that there may be legal
defenses available to it and/or other Indemnified Persons which are different
from or additional to those available to the Indemnifying Person, the
Indemnified Person shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action
on behalf of the Indemnified Person at the expense of the Indemnifying Person.
In the event the Indemnifying Person shall elect not to undertake such defense
by its own representatives, the Indemnifying Person shall give prompt written
notice of such election to the Indemnified Person, and the Indemnified Person
shall undertake the defense, compromise or settlement (without admitting
liability of the Indemnified Person) thereof on behalf of and for the account
and risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. Notwithstanding the foregoing, no
Indemnifying Person shall be obligated hereunder with respect to amounts paid in
settlement of any claim if such settlement is effected without the consent of
such Indemnifying Person (such consent not to be unreasonably withheld).
(d) If the indemnification provided for in this Section 1.6
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Person, then the Indemnifying Person, in lieu of indemnifying such Indemnified
Person hereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of any losses or claims in such proportion as is
appropriate to reflect the relative fault of the Indemnified Person on the one
hand and the Indemnifying Person on the other in connection with the statements
or omissions that resulted in such losses or claims as well as any other
relevant equitable considerations. The relative fault of the Indemnified Person
and the Indemnifying Person shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Person or by the Indemnified Person and the
parties' relative intent, knowledge and access to information and opportunity to
correct or prevent such statement or omission. In no event will the liability of
MTI for contribution exceed the net proceeds received by MTI in any sale of
securities to which such liability relates.
1.7. GRANT AND TRANSFER OF REGISTRATION RIGHTS.
Except for registration rights granted by the Company after the date
hereof (a) in connection with business acquisitions and which relate solely to
registrations on Form S-3 or (b) which are subordinate to the rights of MTI
hereunder, the Company shall not grant any registration rights to any other
person or entity without the prior written consent of MTI, which consent shall
not be unreasonably withheld or delayed. MTI shall have the right to transfer or
assign the rights contained in this Agreement (i) to any limited partner or
affiliate of a MTI in connection with the transfer of any Registrable Securities
or (ii) to any third party transferee acquiring at least 20% of the Registrable
Securities issued to MTI as of the date hereof or the shares of Common Stock
issued upon conversion of such Registrable Securities; provided: (a) the Company
is, within thirty (30) days after such transfer, furnished with written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement; and (c) such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
1.8. INFORMATION FROM MTI.
It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Section 1 with respect to the Registrable
Securities of MTI that MTI shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
registration of MTI's Registrable Securities.
1.9. CHANGES IN COMMON STOCK.
If there is any change in the Common Stock by way of a stock split,
stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock as
so changed.
1.10. RULE 144 REPORTING.
With a view to making available to MTI the benefits of certain rules
and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Act, at all times after the effective date of the first
registration under the Act filed by the Company for an offering of its
securities to the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Act and the Exchange Act; and
(c) So long as MTI owns any Registrable Securities, furnish to MTI
forthwith upon request: a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 of the Act, and of the Exchange
Act (at any time after it has become subject to such reporting requirements); a
copy of the most recent annual or quarterly report of the Company; and such
other reports and documents as MTI may reasonably request in
availing itself of any rule or regulation of the SEC allowing it to sell any
such securities without registration.
2. DEFINITIONS.
The capitalized terms contained in this Agreement shall have the following
meanings unless otherwise specifically defined:
"ACT" shall mean the Securities Act of 1933, as amended.
"AGREEMENT" shall mean this Registration Rights Agreement.
"BUSINESS DAY" shall mean Monday through Friday and shall exclude any
federal or bank holidays observed in New York City.
"COMMON STOCK" shall mean the common stock of the Company, no par value
per share.
"EFFECTIVE TIME" shall mean the time of the filing of the certificate of
merger between Interland and Merger Sub with the Secretary of State of the
State of Delaware in accordance with the relevant provisions of Delaware
Law (or such later time as may be agreed in writing by Interland and
Company).
"EQUITY SECURITIES" shall mean the Common Stock, and any warrants or other
rights to subscribe for or to purchase, or any options for the purchase
of, Common Stock, any stock or security convertible into or exchangeable
for Common Stock or any other stock, security or interest in the Company
whether or not convertible into or exchangeable for Common Stock.
"INTERLAND" shall mean Interland, Inc., a Georgia corporation.
"INDEMNIFIED PERSON" shall have the meaning ascribed to that term in
Section 1.6.3.
"INDEMNIFYING PERSON" shall have the meaning ascribed to that term in
Section 1.6.3.
"MERGER" shall mean the merger of Merger Sub with and into Interland in a
reverse triangular merger with Interland to be the surviving corporation
at the Effective Time, pursuant to the Merger Agreement.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger dated of
even date herewith, between Company, Merger Sub, and Interland.
"MTI" shall mean Micron Technology, Inc., a Delaware corporation.
"MTI SHARES" shall mean those shares of the Common Stock of Company
beneficially owned by MTI.
"COMPANY" shall mean Micron Electronics, Inc., a Minnesota corporation, or
any successor thereto.
"REGISTRABLE SECURITIES" shall mean (i) those shares of Company Common
Stock beneficially owned by MTI, and (ii) any equity securities issued as
a distribution with respect to or in exchange for or in replacement for
any of the shares referred to in clause (i); PROVIDED, HOWEVER, that
Registrable Securities shall not include any securities that have been
previously sold pursuant to a registration statement filed under the Act
or under Rule 144 promulgated under the Act, or which have otherwise been
transferred in a transaction in which the transferor's rights under this
Agreement are not assigned or are not subject to transfer restrictions
under the Act or applicable state securities laws.
"SEC" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the Act.
3. MISCELLANEOUS.
3.1. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement among the parties
hereto with respect to the matters provided for herein, and it supersedes all
prior oral or written agreements, commitments or understandings with respect to
the matters provided for herein. This Agreement may not be amended without the
written consent of the Company and MTI.
3.2. AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT.
The Company and Interland shall use their best efforts to cause the
Amended and Restated Registration Rights Agreement (the "AMENDED RIGHTS
AGREEMENT") substantially in the form attached hereto as EXHIBIT A to be
executed by MTI and each of the parties to that certain Registration Rights
Agreement dated as of December 2, 1999, as amended on December 24, 1999, March
15, 1999 and May 8, 2000.
3.3. TERMINATION.
This Agreement shall terminate upon the earlier of (i) the
effectiveness of the Amended Rights Agreement and (ii) the termination of the
Merger Agreement pursuant to the terms of Article VII thereof.
3.4. WAIVER.
No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Agreement or under any other
instruments given in connection with or pursuant to this 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.
3.5. NO THIRD PARTY BENEFICIARIES.
Except to the extent that the rights hereunder are assigned in
accordance with Section 1.7, it is the explicit intention of the parties hereto
that no person or entity other than the parties hereto is or shall be entitled
to bring any action to enforce any provision of this Agreement against any of
the parties hereto, and the covenants, undertakings and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns.
3.6. BINDING EFFECT.
This 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 permitted assigns.
3.7. GOVERNING LAW.
This 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 Delaware (excluding the choice of law rules
thereof).
3.8. 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 Agreement shall be in writing and shall be hand-delivered, sent
by overnight courier service or mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or transmitted by facsimile,
addressed as follows:
(i) If to the Company:
Micron Electronics, Inc.
000 X. Xxxxxxx Xxxx
Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Facsimile No.: (000) 000-0000
(ii) If to the Interland:
Interland, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
(iii) if to MTI, to:
Micron Technology, Inc.
0000 X. Xxxxxxx Xxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile No.: (000) 000-0000
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,
mailed, transmitted 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 the answerback being deemed conclusive, but not exclusive, evidence
of such delivery) or at such time as delivery is refused by the addressee upon
presentation.
3.9. EXECUTION IN COUNTERPARTS.
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or
have caused this Registration Rights Agreement to be duly executed on their
behalf, as of the day and year first hereinabove set forth.
MICRON ELECTRONICS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
Chairman and Chief Executive Officer
INTERLAND, INC.
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Xxx Xxxxxxxxxx
Chairman and Chief Executive Officer
MICRON TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chief Financial Officer and Vice President
of Finance
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
