Exhibit(d)(31)
10% CONVERTIBLE SENIOR NOTES
DUE 2006
REGISTRATION RIGHTS AGREEMENT
by and among
INTERLIANT, INC.,
as the Company,
The Holders listed on Schedule I hereto,
as Initial Purchasers
This Registration Rights Agreement is made and entered into as of _______
__, 2001, by and among INTERLIANT, INC., a Delaware corporation (the "Company"),
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and the Holders listed on Schedule I hereto (the "Initial Purchasers") who have
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acquired 10% Convertible Senior Notes due 2006 of the Company in the aggregate
principal amount of $34,223,310 and certain Warrants (as defined below) for the
purchase of Common Stock (as defined below) pursuant to the Exchange Agreement
(as defined below).
This Agreement is made pursuant to the Recapitalization and Exchange
Agreement, dated October 19, 2001, by and among the Company and the Initial
Purchasers (the "Exchange Agreement"). In order to induce the Initial Purchasers
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to enter into the Exchange Agreement, the Company has agreed to provide the
registration rights provided for in this Agreement to the Initial Purchasers and
their respective direct and indirect transferees (i) for the benefit of the
Initial Purchasers, (ii) for the benefit of the holders from time to time of the
Notes (as defined below) (including the Initial Purchasers), (iii) for the
benefit of the holders from time to time of the Warrants (including the Initial
Purchasers), (iv) for the benefit of the holders from time to time of the Common
Stock issuable or issued upon conversion of the Notes or upon exercise of the
Warrants, and (v) for the benefit of the holders from time to time of the
securities constituting the Transfer Restricted Securities (as defined below).
The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Exchange Agreement, and each Holder (as defined
below) by participating in a Registration Statement agrees to be bound by this
Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in this Section 1.
Affiliate: An affiliate of any specified person shall mean any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
Closing Date: __________, 2001.
Common Stock: Common Stock, $.01 par value per share, of the Company and
any other shares of common stock as may constitute "Common Stock" for purposes
of the Indenture as issuable or issued upon conversion of the Notes and for
purposes of the Warrants as issuable or issued upon exercise of the Warrants.
Company: Interliant, Inc., a Delaware corporation, and any successor
corporation thereto.
Controlling Person: As defined in Section 5(a) hereof.
Effectiveness Period: As defined in Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Exchange Agreement: As defined in the second paragraph hereof.
Filing Date: The 90th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 5(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between the Company
and the Trustee, pursuant to which the Notes are to be issued, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: As defined in the first paragraph hereof.
Notes: The Company's 10% Convertible Senior Notes due 2006 issued on the
Closing Date and from time to time thereafter pursuant to the Exchange Agreement
and the Indenture.
Notice and Questionnaire: The Notice and Questionnaire attached hereto as
Exhibit A.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Transfer Restricted Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of any of the
Transfer Restricted Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: The Notes, any Additional Securities as
defined in the Indenture, the shares of Common Stock into which such Notes or
Additional Securities are converted or convertible (including any shares of
Common Stock issued or issuable thereon upon any stock split, stock combination,
stock dividend or the like), the Warrants, and the shares of Common Stock
issuable upon the exercise thereof (including any shares of Common Stock issued
or issuable thereon upon any stock split, stock combination, stock dividend or
the like), upon original issuance thereof and at all times subsequent thereto,
and associated related rights, if any, until the earliest of (i) the date on
which the resale thereof has been effectively registered under the Securities
Act and disposed of in accordance with the Registration Statement relating
thereto, (ii) the date on which such securities have been distributed to the
public pursuant to Rule 144 or are saleable pursuant to paragraph (k) of Rule
144 or (iii) the date on which they cease to be outstanding.
Transfer Agent: The registrar and transfer agent for the Company's Common
Stock.
Trustee: The trustee under the Indenture.
Warrants: The Warrants to purchase Common Stock issued pursuant to the
Exchange Agreement and the Warrant Agreement.
Warrant Agent: The Chase Manhattan Bank.
Warrant Agreement: The Warrant Agreement, dated as of the date hereof,
between the Company and the Warrant Agent, pursuant to which the Warrants are to
be issued, as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
References herein to the term "Holders of a majority in interest of
Transfer Restricted Securities" or words to a similar effect shall mean, with
respect to any request, notice, demand, objection or other action by the Holders
hereunder or pursuant hereto (each, an "Act"), registered Holders of (i) a
number of shares of then outstanding Common Stock constituting Transfer
Restricted Securities and (ii) an aggregate amount of then outstanding Notes
constituting Transfer Restricted Securities and (iii) an aggregate number of
Warrants constituting Transfer Restricted Securities, such that the sum of such
shares of Common Stock
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and the shares of Common Stock issuable upon conversion of such Notes and
exercise of such Warrants constitutes in excess of 50% of the sum of all of the
then outstanding shares of Common Stock constituting Transfer Restricted
Securities and the number of shares of Common Stock issuable upon conversion of
then outstanding Notes constituting Transfer Restricted Securities and exercise
of such Warrants constituting Transfer Restricted Securities. For purposes of
this Agreement, Transfer Restricted Securities owned, directly or indirectly, by
the Company or its Affiliates shall be deemed not to be outstanding.
SECTION 2. Shelf Registration Statement.
(a) The Company agrees to file with the SEC as soon as practicable after
the Closing Date, but in no event later than the Filing Date, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Transfer Restricted Securities or separate Registration
Statements for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Common Stock, Warrants and Notes constituting Transfer
Restricted Securities, respectively (such Registration Statement or Statements,
collectively, the "Shelf Registration Statement"). Each Shelf Registration
Statement shall be on Form S-1 under the Securities Act or another appropriate
form selected by the Company permitting registration of such Transfer Restricted
Securities for resale by the Holders in the manner or manners reasonably
designated by Holders of a majority in interest of Transfer Restricted
Securities being sold. The Company shall not permit any securities other than
the Transfer Restricted Securities to be included in any Shelf Registration
Statement. The Company shall use commercially reasonable efforts to cause each
Shelf Registration Statement to be declared effective pursuant to the Securities
Act as soon as reasonably practicable following the filing thereof and shall use
commercially reasonable efforts to keep such Shelf Registration Statement
continuously effective under the Securities Act, subject to Section 2(d) hereof,
for two years after the Closing Date (the "Effectiveness Period"), or such
shorter period ending when there cease to be any Transfer Restricted Securities
outstanding.
(b) Supplements and Amendments. The Company shall use commercially
reasonable efforts to keep each Shelf Registration Statement continuously
effective by supplementing and amending the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement, if required by the
Securities Act or if requested by the Holders of a majority in interest of the
Transfer Restricted Securities.
(c) Selling Securityholder Information. Each Holder wishing to sell
Transfer Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire that confirms
such
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Holder's agreement to be bound by the terms of this Agreement and includes such
information regarding it and the distribution of its Transfer Restricted
Securities as is required by law to be disclosed by the Holder in the applicable
Registration Statement (the "Requisite Information") to the Company prior to the
effectiveness of the Shelf Registration Statement. The Company shall not be
required to include in any Shelf Registration Statement and related Prospectus
the Transfer Restricted Securities of any Holder that does not provide the
Company with a Notice and Questionnaire in accordance with this Section 2(c).
The Company shall file, within ten Business Days after the receipt of a Notice
and Questionnaire from any Holder which includes the Requisite Information with
respect to such Holder, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Registration Statement to include in the
Prospectus the Requisite Information as to such Holder (and the Transfer
Restricted Securities held by such Holder), and the Company shall provide such
Holder within five Business Days after receipt of such Notice and Questionnaire
with a copy of such Prospectus as so amended or supplemented containing the
Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Xxxxxx's Transfer Restricted
Securities and to file the same with the SEC. Each Holder shall promptly notify
the Company of any material changes to the Requisite Information contained in
the Notice and Questionnaire provided to the Company by such Holder.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require, in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such Holder in such
Registration Statement at the time subsequent to the time that such reference
ceases to be required and the Company otherwise intends to amend or supplement
the Shelf Registration Statement.
(d) Material Events; Suspension of Sales. Notwithstanding the provisions
contained in this Section 2, in the event that, in the judgment of the Company's
Board of Directors upon the advice of counsel, it is advisable to suspend use of
the Prospectus due to pending corporate developments or public filings with the
SEC, the Company shall promptly deliver a written certificate to each registered
Holder, the Trustee, the Transfer Agent and the Warrant Agent to the effect that
the use of the Prospectus is to be suspended until the Company shall deliver a
written notice that the use of the Prospectus may be resumed. Thereafter, the
use of the Prospectus shall be suspended, and the Company shall not be required
to maintain the effectiveness of, or amend or update the Shelf Registration
Statement, or amend or supplement the Prospectus; provided, however, that the
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Company shall only be permitted to suspend the use of the Prospectus for a
period not to exceed 30 days in any six-month period or two periods not to
exceed an
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aggregate of 60 days in any 12-month period. The Company will use commercially
reasonable efforts to ensure that the use of the Prospectus may be resumed as
soon as, in the judgment of the Company's Board of Directors upon the advice of
counsel, disclosure of the material relating to such pending development or
filing would not have a material adverse effect on the Company. The length of
any periods during which the Company suspends the use of the Prospectus under
this Section 2(d) shall be added to the two year period described in Section
2(a) above.
(e) Additional Agreements of Holders. Each Holder agrees not to dispose of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
without complying with the prospectus delivery requirements under the Act and
the provisions of paragraph (d) above regarding use of the Prospectus. Each
Holder further agrees that it will comply fully with applicable federal and
state securities laws in connection with the distribution of any Transfer
Restricted Securities pursuant to the Shelf Registration Statement.
SECTION 3. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the filing of any amendment or supplement thereto (excluding, unless
requested, any document that would be incorporated or deemed to be incorporated
therein by reference and then only to the Holder who so requested), furnish to
the Holders whose Transfer Restricted Securities are required to be included in
such Registration Statement or Prospectus pursuant to Section 2(c) hereof copies
of all such documents proposed to be filed (excluding, unless requested, those
incorporated or deemed to be incorporated by reference and then only to the
Holder who so requested) and cause the officers and directors of the Company,
counsel to the Company and independent certified public accountants to the
Company to respond to such inquiries as shall be necessary in connection with
such Registration Statement, in the opinion of counsel to the underwriters, if
any, to conduct a reasonable investigation within the meaning of the Securities
Act. The Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto (excluding any document that
would be incorporated or deemed incorporated by reference) to which the Holders
of a majority in interest of the Transfer Restricted Securities shall object.
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
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keep such Registration Statement continuously effective for the applicable time
period set forth in Section 2(a) hereof; subject to Section 2(d) hereof, cause
the related Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Securities Act
and the Exchange Act with respect to the disposition of all securities covered
by such Registration Statement during such period in accordance with the
intended method or methods of disposition by the Holder set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented
(including, without limitation, the filing of any Prospectus supplement pursuant
to Rule 424 in order to add or change any selling security holder information
(including any such supplements or amendments pursuant to Section 2(c) hereof,
provided such Holder to which such change applies complies with the Requisite
Information requirements of Section 2(c) hereof).
(c) Notify the Holders at the earliest practicable moment (and in the case
of an event specified by clause (i) of this paragraph in no event fewer than two
Business Days prior to such filing), and (if requested by any such person),
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request of the SEC or any other federal
or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto, (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 3(m) hereof are not true and correct in all material respects, (v) of
the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Transfer
Restricted Securities for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, and (vi) of the existence of any
fact or the happening of any event that makes any statement made in such
Registration Statement or related Prospectus untrue in any material respect, or
that requires the making of any changes in such Registration Statement or
Prospectus so that in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and that, in the case of the Prospectus, such Prospectus will not
contain any untrue statement of a material fact or omit to state any 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.
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(d) Use commercially reasonable efforts to avoid the issuance of, or, if
issued, to obtain the withdrawal of any stop order or order enjoining or
suspending the use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Transfer Restricted Securities for sale in any jurisdiction, at the
earliest practicable moment.
(e) If requested by the Holders of a majority in interest of the Transfer
Restricted Securities being sold in connection with such offering, promptly
include in a Prospectus supplement or post-effective amendment such information
as such Holders agree should, in their reasonable judgment, be included therein,
and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be included in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
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required to take any action pursuant to this Section 3(e) that, in the opinion
of counsel for the Company, would violate applicable law.
(f) Furnish to each Holder who so requests, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements (but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits,
unless requested in writing by such Holder or any managing underwriter.
(g) Deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto to as such persons may reasonably request; and,
unless the Company shall have given notice to such Holder pursuant to Section
2(d), the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by such Prospectus and any amendment or supplement
thereto, provided, however, that no Holder shall be entitled to use the
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Prospectus unless and until such Holder shall have furnished to the Company any
and all Requisite Information pursuant to Section 2(c) hereof.
(h) Use commercially reasonable efforts to register or qualify, or
cooperate with the Holders of Transfer Restricted Securities to be sold or
tendered for, and their counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of, such
Transfer Restricted Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any Holder reasonably
requests in writing, keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary legally
to enable the
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disposition in such jurisdictions of the Transfer Restricted Securities covered
by the applicable Registration Statement; provided, however, that the Company
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shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or subject the Company to any tax in any such jurisdiction where it is
not then so subject.
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive
legends, shall bear a CUSIP number different from the CUSIP number for the
Transfer Restricted Securities and shall be in a form eligible for deposit with
The Depository Trust Company and enable such Transfer Restricted Securities to
be in such denominations and registered in such names as the Holders may
reasonably request at least two Business Days prior to any sale of Transfer
Restricted Securities.
(j) Use commercially reasonable efforts to cause the offering of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by the National Association of Securities Dealers,
Inc. ("NASD") and/or such other governmental agencies or authorities within the
United States, except as may be required as a consequence of the nature of a
Holder's business, in which case the Company will cooperate in all respects with
the filing of such Registration Statement and the granting of such approvals as
may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities; provided, however, that the
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Company shall not be required to register the Transfer Restricted Securities in
any jurisdiction that would require the Company to qualify to do business in any
jurisdiction where it is not then so qualified, subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject or
to.
(k) Upon the occurrence of any event contemplated by Section 3(c)(vi)
hereof, as promptly as practicable (subject to any suspension of sales pursuant
to Section 2(d) hereof), prepare a supplement or amendment, including, if
appropriate, a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, 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 necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, to provide a CUSIP number for
the Transfer Restricted Securities to be sold pursuant to the Registration
Statement.
(m) Enter into such agreements reasonably satisfactory to the Company and
take all such other reasonable actions in connection therewith (including those
reasonably requested by the Holders of a majority in interest of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the sale of
such Transfer Restricted Securities; provided, however, that the Company shall
not be required to facilitate an underwritten offering. In such connection, the
Company will: (i) make such representations and warranties to the Holders of
such Transfer Restricted Securities with respect to the business of the Company
and its subsidiaries (including with respect to businesses or assets acquired or
to be acquired by any of them), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and reasonably acceptable to
the Company, and confirm the same if and when requested; (ii) obtain an opinion
of counsel to the Company and updates thereof addressed to the Holders in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings covering the matters customarily covered in opinions
requested in underwritten offerings, including a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and such other Persons as may participate in such
conferences at which the contents of such Shelf Registration Statement and
related Prospectus were discussed, and although such counsel has not undertaken
to investigate or independently verify and does not assume any responsibility
for the accuracy, completeness, or fairness of the statements therein, such
counsel advises that (relying as to materiality to a large extent upon facts
provided to such counsel by officers and other representatives of the Company
and without independent check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the Shelf Registration
Statement and related Prospectus, at the time that the Shelf Registration
Statement became effective, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) deliver such documents and
certificates as may be reasonably requested by the Holders of majority interest
of the Transfer Restricted Securities being sold to evidence the continued
validity of the representations and warranties made pursuant to clause (i) of
this Section 3(m) and to evidence compliance with any customary conditions
contained in any agreement entered into by the Company.
(n) Make available for inspection by a representative of the Holders of
Transfer Restricted Securities being sold, and any attorney, consultant or
accountant retained by such selling Holders, at the offices where normally kept,
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during reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as they
may reasonably request, and cause the officers, directors, agents and employees
of the Company and its subsidiaries to supply all information in each case
reasonably requested by any such representative, attorney, consultant or
accountant in connection with such Registration Statement, provided, however,
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that such persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the Company in
writing as confidential at the time of delivery or inspection (as the case may
be) of such information shall be kept confidential by such persons, unless (i)
in the reasonable opinion of the Company or its counsel, disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) in the reasonable opinion
of the Company or its counsel, disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in
connection with the filing of any Registration Statement or the use of any
Prospectus), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement.
(o) Use commercially reasonable efforts to cause the Indenture to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Transfer Restricted Securities; and in
connection therewith, cooperate with the Trustee and the Holders of Notes or
Common Stock constituting Transfer Restricted Securities to effect such changes
to the Indenture, if any, as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its
commercially reasonable efforts to cause the Trustee to execute, all customary
documents as may be required to effect such changes, and all other forms and
documents (including Form T-1) required to be filed with the SEC to enable the
Indenture to be so qualified under the TIA in a timely manner.
(p) Comply with applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act or Rule 158 (or any similar
rule promulgated under the Securities Act), no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) commencing on the first day of the first fiscal quarter
after the effective date of a Registration Statement, which statement shall
cover said period, consistent with the requirements of Rule 158.
(q) (i) List all shares of Common Stock covered by any Registration
Statement on any national securities exchange on which the Common Stock is then
listed or (ii) authorize for quotation on the SmallCap Market or the National
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Market of the National Association of Securities Dealers Automated Quotation
System ("Nasdaq") all Common Stock covered by all such Registration Statements
if the Common Stock is then so authorized for quotation.
(r) Make available to any Holder of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, for so long as any Transfer Restricted
Securities remain outstanding.
(s) Remove any legend endorsed on a Transfer Restricted Security and any
stop transfer instructions with respect to such security, and issue an
instrument without such legend to the Holder if such securities are registered
under the Securities Act and a prospectus meeting the requirements of Section 10
of the Securities Act is available or if the Holder provides the Company with an
opinion of counsel for the Holder, reasonably satisfactory to the Company, to
the effect that a public sale, transfer or assignment of such Transfer
Restricted Securities may be made without registration.
SECTION 4. Registration Expenses.
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by it whether or not any
Registration Statement is filed or becomes effective and whether or not any
securities are offered or sold pursuant to any Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including, without
limitation, fees and expenses with respect to filings required to be made with
the NASD and in compliance with securities or Blue Sky laws, (ii) printing
expenses (including, without limitation, of printing Prospectuses if the
printing of Prospectuses is required by the Holders of a majority in interest of
the Transfer Restricted Securities included), (iii) messenger, telephone and
delivery expenses, (iv) reasonable fees and disbursements of counsel for the
Company and reasonable fees and expenses of one outside counsel for the Holders,
not to exceed $10,000, as selected by the Holders of a majority in interest of
the Transfer Restricted Securities, in accordance with the provisions of this
Section 4 hereof, and (v) fees and expenses of all other persons retained by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of an annual audit and the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange or the Nasdaq SmallCap Market or the
Nasdaq National Market.
13
SECTION 5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of (i) the
Initial Purchasers, (ii) each Holder, (iii) each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in this
clause (iii) being hereinafter referred to as a "Controlling Person"), (iv) the
------------------
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchasers, the Holders (including predecessor Holders), or any
Controlling Person and (v) any broker-dealer selling Transfer Restricted
Securities on behalf of any Holder, whether or not such broker-dealer is deemed
to be an "underwriter", as such term is defined in the Securities Act (any
person referred to in clause (i), (ii), (iii), (iv) or (v) may hereinafter be
referred to as an "Indemnified Person"), from and against any and all losses,
------------------
claims, damages, liabilities, expenses and judgments whatsoever (including but
not limited to attorneys' fees), insofar as such losses, claims, damages,
liabilities, expenses or judgments (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary Prospectus, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, except insofar as such
------
losses, claims, damages, liabilities, expenses or judgments are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Indemnified Person furnished to the Company in
writing by or on behalf of such Indemnified Person expressly for use therein
(which shall include, without limitation, the Requisite Information in the
Notice and Questionnaire provided to the Company by such Indemnified Person)
provided, however, that the foregoing indemnity with respect to any preliminary
-------- -------
Prospectus shall not inure to the benefit of any Indemnified Person from whom
the person asserting such losses, claims, damages, liabilities, expenses and
judgments purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary Prospectus is eliminated
or remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person, whether as a result of negligence
or otherwise. This indemnity will be in addition to any liability which the
Company may otherwise have, including under this Agreement.
(b) In case any action shall be brought against any Indemnified Person,
based upon any Registration Statement or any such Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against the
Company, such Indemnified Person shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the
14
employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless the employment of such counsel shall have been
specifically authorized in writing by the Company, the Company shall have failed
to assume the defense and employ counsel or such Indemnified Person or Persons
shall have been advised by counsel that there may be a conflict between the
positions of the Company and of the Indemnified Person in conducting the defense
of such action or proceeding or that there may be legal defenses available to
such Indemnified Person or Persons different from or in addition to those
available to the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Indemnified Persons, which firm
shall be designated in writing by such Indemnified Persons, and that all such
fees and expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Indemnified Person from and against
any loss or liability by reason of such settlement. The Company shall not,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(c) In connection with any Registration Statement pursuant to which any
Holder (or predecessor Holder) sold or offered for resale Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers, employees, representatives and
agents and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Holder but only as limited to
written information relating to such Holder furnished by or on behalf of such
Holder expressly for use in such Registration Statement (which shall include,
without limitation, the Requisite Information in the Notice and Questionnaire
provided to the Company by such Holder). In case any action shall be brought
against the Company, any of its directors, officers, employees, representatives
and agents, or any person controlling the Company based on such Registration
Statement and in respect of which indemnity may be sought against any Holder,
15
the Holder shall have the rights and duties given to the Company (except that if
the Company shall have assumed the defense thereof, such Holder shall not be
required to do so, but may employ separate counsel therein and participate in
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Holder), and the Company, its directors, officers, employees,
representatives and agents, and any person controlling the Company shall have
the rights and duties given to the Holder by Section 5(b) hereof. No Holder
shall be liable or responsible for any amount in excess of the dollar amount of
the net proceeds received by such Holder upon the sale of securities giving rise
to such indemnification obligation, unless the liability of such Holder is due
to such Holder's fraud or willful misconduct, in which case such Holder's
liability under this Section 5(c) shall not be so limited.
(d) If the indemnification provided for in this Section 5 is applicable by
its terms but unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities, expenses or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, expenses and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Indemnified Person on the other hand pursuant
to the Exchange Agreement or from the offering for resale of the Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and each such Indemnified Person in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and each such Indemnified
Person shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or such Indemnified
Person and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities, expenses or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such
16
action or claim. Notwithstanding the provisions of this Section 5, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the total net profit received by it in connection with the sale
of the Transfer Restricted Securities pursuant to this Agreement exceeds the
amount of any damages which such Indemnified Person has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 5(d) are several and not joint.
SECTION 6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of
any of their respective obligations under this Agreement, each Holder or the
Company, in addition to being entitled to exercise all rights granted by law,
including, without limitation, recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Except as set forth in Schedule 6(b) hereto, the Company is
not currently a party to any agreement granting any registration rights with
respect to any of its securities to any person which conflicts with the
Company's obligations hereunder. Without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in interest
of the Transfer Restricted Securities, the Company shall not grant to any person
the right to request it to register any of its securities under the Securities
Act unless the rights so granted are subject in all respect to the prior rights
of the Holders set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(c) No Adverse Action Affecting the Transfer Restricted Securities. The
Company will not take any action with respect to the Transfer Restricted
Securities which would adversely affect the ability of any of the Holders to
include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.
17
(d) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof, may not be
given, without the written consent of the Holders of a majority in interest of
the Transfer Restricted Securities.
(e) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next day air courier, certified
first-class mail, return receipt requested or telecopy:
(i) if to a Holder, to the address of such Holder as it
appears in the Notice and Questionnaire, or, if not so specified,
in the Common Stock, Warrants or Notes register of the Company, as
applicable;
(ii) if to the Company, to:
Interliant, Inc.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn.: General Counsel
Telecopy No.: 914.694.1346
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given, when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier, five Business Days after being deposited in the mail, postage prepaid,
if mailed; and when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each existing and future Holder. The
Company may not assign its rights or obligations hereunder without the prior
written consent of the Holders of a majority in interest of the Transfer
Restricted Securities, other than by operation of law pursuant to a merger or
consolidation to which the Company is a party.
(g) Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
18
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
19
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
INTERLIANT, INC.
By:
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
The foregoing Registration Rights
Agreement is hereby confirmed and agreed
to as of the date first written above.
HOLDERS
BNP PARIBAS EQUITY STRATEGIES, S.N.C.
By: _________________________________
Name:
Title:
CAMDEN ASSET MANAGEMENT
By: _________________________________
Name:
Title:
TRIBECA INVESTMENTS, LLC
By: _________________________________
Name:
Title:
XXXXXXX CAPITAL [LLC]
By: _________________________________
Name:
Title:
FIR TREE VALUE FUND, LTD.;
FIR TREE INSTITUTION VALUE FUND, L.P.
FIR TREE VALUE PARTNERS LTD.; and
FIR TREE RECOVERY FUND, L.P.
By: _________________________________
Name:
Title:
20
JMG/TRITON OFFSHORE FUND, LTD.
By: _________________________________
Name:
Title:
HARVARD MANAGEMENT COMPANY, INC.
(d/b/a President And Fellows of Harvard College)
By: _________________________________
Name:
Title:
R2 INVESTMENTS, LDC
By: Amalgamated Gadget, L.P., as Investment
Manager of R2 Investments, LDC
By: Scepter Holdings, Inc., its General Partner
By: __________________________________
Xxxxxx XxXxxxxxx, Vice President
21
Schedule 6(b)
-------------
Registration Rights Agreement, dated February 16, 2000, by and among the Company
and the Initial Purchasers, as such term is defined therein.
Registration Rights Agreement, dated March 10, 2000, between the Company and
Microsoft Corporation.
Registration Rights Agreement, dated April 16, 2001, by and among the Company,
Charterhouse Equity Partner III, L.P., Softbank Technology Ventures VI L.P. and
their respective affiliates.
Exhibit A
Notice
The undersigned beneficial owner (the "Selling Securityholder") of Transfer
Restricted Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Transfer Restricted Securities beneficially owned
by it and listed below in Item (3), unless otherwise specified in Item (3),
pursuant to the Shelf Registration Statement. The undersigned, by signing and
returning this Notice and Questionnaire, understands and agrees that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including the indemnification provisions in
Section 5 thereof.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
___________________________________________________________________________
(b) Full Legal Name of registered holder (if not the same as (a) above)
through which Transfer Restricted Securities listed in Item (3) below
are held:
___________________________________________________________________________
(c) Full Legal Name of DTC participant (if applicable and if not the same
as (b) above) through which Transfer Restricted Securities listed in
Item (3) below are held:
___________________________________________________________________________
2. Address for Notices to Selling Securityholder:
___________________________________________________________________________
Telephone: ________________________________________________________________
Fax: ______________________________________________________________________
Contact Person: ___________________________________________________________
3. Beneficial Ownership of Transfer Restricted Securities:
(a) Type and Amount of Transfer Restricted Securities beneficially owned:
___________________________________________________________________________
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned:
___________________________________________________________________________
(c) Type and Amount of Transfer Restricted Securities to be registered:
___________________________________________________________________________
4. Beneficial Ownership of Other Securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the Transfer Restricted Securities listed above in Item (3).
(a)Type and Amount of Other Securities beneficially owned:
___________________________________________________________________________
(b)CUSIP No(s). of such Other Securities beneficially owned:
___________________________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
Affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or its predecessors or Affiliates) during the past three
years.
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed
above in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned or alternatively, through
broker-dealers or agents (other than in an underwritten offering). If the
Transfer
2
Restricted Securities are sold through broker-dealers, the Selling
Securityholder will be responsible for broker-dealer or agent's
commissions. Such Transfer Restricted Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Transfer Restricted Securities may be listed
or quoted at the time of sale, (ii) in the over-the-counter market, (iii)
in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Transfer Restricted Securities or otherwise,
the undersigned may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the Transfer Restricted
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Transfer Restricted Securities short and
deliver Transfer Restricted Securities to close out such short positions,
or loan or pledge Transfer Restricted Securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules thereunder relating to
stock manipulation, particularly Regulation M thereunder (or any successor rules
or regulations), in connection with any offering of Transfer Restricted
Securities pursuant to the Shelf Registration Statement. The undersigned agrees
that neither it nor any person acting on its behalf will engage in any
transaction in violation of such provisions.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing, by hand
delivery, first class mail or air courier guaranteeing overnight delivery at the
address set forth below. In the absence of any such notification, the Company
shall be entitled to continue to rely on the accuracy of the information in this
Notice and Questionnaire.
3
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
inclusion of such information in the Shelf Registration Statement and the
Prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation, amendment or
supplementation of the Shelf Registration Statement and the Prospectus.
The terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors, heirs, personal
representatives, and permitted assigns of the Company and the Selling
Securityholder with respect to the Transfer Restricted Securities beneficially
owned by the Selling Securityholder and listed in Item (3) above. This agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of New York applicable to contracts made in the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Date:___________________ __________________________________________
Selling Securityholder (Print or type full
legal name of beneficial owner of Transfer
Restricted Securities)
By:_______________________________________
Name:
Title:
4
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Interliant, Inc.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Senior Vice
President and General Counsel
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
5
