EXHIBIT 10.52
SECURITIES PURCHASE AGREEMENT
among
INTERLIANT, INC.
and
THE PURCHASERS NAMED IN SCHEDULE I
Dated as of March 8, 2002
TABLE OF CONTENTS
Page
ARTICLE I. THE PURCHASED COMMON SHARES AND THE WARRANTS.......................1
Section 1.1 Agreement to Purchase....................................1
Section 1.2 Warrants not Issued as Compensation......................1
Section 1.3 Closing..................................................1
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................2
Section 2.1 Organization, Qualifications and Corporate Power.........2
Section 2.2 Authorization of Agreements, Etc.........................2
Section 2.3 Validity.................................................3
Section 2.4 Full Disclosure..........................................3
Section 2.5 Capitalization...........................................3
Section 2.6 No Material Adverse Change...............................4
Section 2.7 Brokers..................................................4
Section 2.8 Private Offering.........................................4
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.................4
Section 3.1 Accredited Investor......................................5
Section 3.2 Certain Securities Matters...............................5
Section 3.3 Brokers..................................................6
ARTICLE IV. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS...................6
Section 4.1 Representations and Warranties...........................6
Section 4.2 Performance of Obligations...............................6
Section 4.3 Officer Certificate......................................6
Section 4.4 Deliveries...............................................6
Section 4.5 No Material Adverse Change...............................7
Section 4.6 Opinion of Counsel.......................................7
ARTICLE V. CERTAIN AGREEMENTS.................................................7
Section 5.1 Insolvency...............................................7
Section 5.2 Stockholder Approval.....................................8
Section 5.3 Restrictions on Transfers Generally......................8
Section 5.4 Transferees Subject to Agreement.........................8
Section 5.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇........................................8
Section 5.6 Additional Indebtedness..................................8
Section 5.7 Negative Covenants.......................................9
ARTICLE VI. MISCELLANEOUS.....................................................9
Section 6.1 Expenses.................................................9
Section 6.2 Survival of Agreements...................................9
Section 6.3 Brokerage................................................9
Section 6.4 Parties in Interest......................................9
Section 6.5 Notices..................................................9
Section 6.6 Governing Law...........................................10
Section 6.7 Entire Agreement........................................10
Section 6.8 Counterparts............................................10
Section 6.9 Amendments..............................................10
Section 6.10 Severability.........................................10
Section 6.11 Titles and Subtitles.................................10
INDEX TO EXHIBITS
EXHIBIT 1 Purchasers
EXHIBIT 2 Form of Convertible Notes
EXHIBIT 3 Form of Warrant
EXHIBIT 4 Form of Rights Agreement
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made as of
March 8, 2002 among Interliant, Inc., a Delaware corporation (the "Company"),
and the purchasers named in the attached Exhibit 1 (each individually a
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"Purchaser" and, collectively, the "Purchasers").
WHEREAS, the Company wishes to issue and sell to the Purchasers up to
an aggregate of 100 Units (with each Unit consisting of (a) $100,000 Principal
Amount of Convertible Notes, in the form annexed hereto as Exhibit 2 (the
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"Convertible Notes"), and (b) 100,000 warrants, in the form annexed hereto as
Exhibit 3 (the "Warrants") for the purchase of shares of Common Stock of the
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Company, par value $.01 per share (the "Common Stock)); and
WHEREAS, the Purchasers wish to purchase the Units on the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained in this Agreement, the parties hereby agree as follows:
ARTICLE I.
THE PURCHASED COMMON SHARES AND THE WARRANTS
Section 1.1 Agreement to Purchase. Upon the terms and subject to the
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conditions of this Agreement, each Purchaser hereby agrees, severally and not
jointly, to purchase, at the Closing (as hereinafter defined) the aggregate
number of Units set forth opposite the name of such Purchaser on Exhibit 1
annexed hereto at a price of $100,000 per Unit.
Section 1.2 Warrants not Issued as Compensation. The Company and the
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Purchasers, having adverse interests and as a result of arm's length bargaining,
agree that (i) the Warrants are being issued in consideration of certain
financial accommodations provided by the Purchasers to the Company, (ii) neither
the Purchasers nor any of their affiliates or associates has rendered or agreed
to render any services to the Company in connection with this Agreement or the
issuance of the Warrants, and (iii) the Warrants are not being issued to the
Purchasers as compensation for services.
Section 1.3 Closing. The closing of the purchase of Units pursuant to
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Section 1.1 above shall take place at the office of Proskauer Rose LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as may be agreed
upon between the Purchasers and the Company, or via facsimile on March 8, 2002
or at such other date and time as may be agreed upon between the Purchasers and
the Company (such closing being called the "Closing"). At the Closing, the
Company shall issue and deliver to each Purchaser a Convertible Note issued in
the name of such Purchaser representing the aggregate principal amount of the
Convertible Notes being acquired by such Purchaser as part of the Units being
purchased by it at the Closing. The Company shall also issue and deliver to each
Purchaser Warrants issued in the name of such Purchaser, representing the number
of Warrants being acquired by such Purchaser as part of the Units being
purchased by it at the Closing. As payment in full for the Units being purchased
by it at the Closing, and against delivery of the items set forth in the
preceding two sentences, each Purchaser shall deliver to the Company by wire
transfer the amount set forth opposite the name of such Purchaser on Exhibit 1
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annexed hereto.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser that:
Section 2.1 Organization, Qualifications and Corporate Power. The
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Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires such licensing or
qualification, except where such failure to qualify or be in good standing would
not have a material adverse effect on the Company. The Company has the corporate
power and authority (i) to own and hold its properties and to carry on its
business as now conducted and as proposed to be conducted, (ii) to execute,
deliver and perform this Agreement, the Convertible Notes, the Warrants and the
Registration Rights Agreement in the form of Exhibit 4 (the "Rights Agreement")
(collectively, the "Transaction Documents"), and (iii) subject to obtaining the
approval of the Company's stockholders as provided in Section 5.2 of this
Agreement (the "Stockholder Approval"), to issue, sell and deliver the
Convertible Notes, the Warrants, the additional Convertible Notes, if any,
issueable in lieu of cash interest payments on the Convertible Notes (the "PIK
Notes") and the shares of Common Stock issueable upon exercise of the Warrants
(the "Warrant Shares")and upon conversion of the Convertible Notes and the PIK
Notes (the "Conversion Shares") (the Convertible Notes, the PIK Notes, the
Warrants, the Warrant Shares and the Conversion Shares, each a "Security" and
collectively, the "Securities").
Section 2.2 Authorization of Agreements, Etc. (a) Subject to obtaining
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Stockholder Approval, the execution and delivery by the Company of the
Transaction Documents, the performance by the Company of its obligations
thereunder, the issuance, sale and delivery of the Convertible Notes, the PIK
Notes and the Warrants, and the reservation, issuance and delivery of the
Warrant Shares and the Conversion Shares (i) have been duly authorized by all
requisite corporate action, (ii) will not violate any provision of law, any
order of any court or other agency of government, the Certificate of
Incorporation, as amended (the "Charter") or the By-laws of the Company, as
amended, or any provision of any indenture, agreement or other instrument to
which the Company or any of its properties or assets is bound, or conflict with,
result in a breach of, constitute (with due notice or lapse of time or both) a
default under, accelerate or terminate any such indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge,
restriction, claim or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company and (iii) will not require any notice,
consent or waiver under any material indenture, agreement or other
instrument to which the Company is a party or by which any of its properties or
assets are bound, other than such notice, consent or waiver as shall have
previously been obtained.
(b) When issued in accordance with this Agreement, the Convertible
Notes and the PIK Notes will be duly authorized and validly issued, and will be
free and clear of all liens, charges, restrictions, preemptive or similar
rights, claims and encumbrances imposed by or through the Company except as set
forth in this Agreement, the Rights Agreement and the Charter. When issued in
accordance with this Agreement, the Warrants will be duly authorized and validly
issued and will be free and clear of all liens, charges, restrictions, claims
and encumbrances imposed by or through the Company except as set forth in this
Agreement, the Rights Agreement, the Warrants and the Charter. Upon receipt of
Stockholder Approval, the Warrant Shares and the Conversion Shares will have
been duly reserved, and shall remain reserved out of the authorized but unissued
shares of Common Stock, for issuance upon exercise of the Warrants and upon
conversion of the Convertible Notes and the PIK Notes and, when so issued, will
be duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock and will be free and clear of all liens, charges, restrictions,
preemptive or similar rights, claims and encumbrances imposed by or through the
Company except as set forth in this Agreement. Neither the issuance, sale or
delivery of the Convertible Notes and the PIK Notes or the Warrants nor the
issuance or delivery of the Warrant Shares or the Conversion Shares is subject
to any preemptive right of stockholders of the Company, or to any right of first
refusal or other right in favor of any person, which have not been duly and
validly waived.
Section 2.3 Validity. This Agreement constitutes and when executed,
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delivered and/or issued the other Transaction Documents, the Convertible Notes,
the PIK Notes, and the Warrants will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms.
Section 2.4 Full Disclosure. All documents filed by the Company
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pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1999: (i) were prepared in accordance with the requirements
of the Exchange Act and the rules and regulations thereunder, (ii) did not at
the time they were filed contain any untrue statement of a material fact, and
(iii) did not at the time they were filed omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The representations and warranties of the
Company contained in this Agreement, any schedule, annex, or exhibit hereto and
any agreement, instrument, certificate or information furnished by the Company
to the Purchasers pursuant to this Agreement, taken as a whole, do not contain,
as of the date hereof, and will not contain, as of the Closing, any untrue
statement of material fact or omit to state a material fact required to be
stated herein or therein or necessary to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
Section 2.5 Capitalization. The authorized, issued and outstanding
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share capital of the Company as of March 7, 2002, is as set forth in Schedule
2.5A. All of the outstanding shares of capital stock of the Company have been
duly authorized, validly
issued and are fully paid and non-assessable. Except as set forth on Schedule
2.5A and Schedule 2.5B, there are no existing options, warrants, calls,
commitments or other agreements to which the Company is a party or bound
requiring, and there are no convertible securities of the Company outstanding
which upon conversion would require, the issuance of any additional shares of
Common Stock or other securities convertible into Common Stock or redemption of
any shares of Common Stock. Except as contemplated by the Rights Agreement or
the other agreements set forth on Schedule 2.5B, the Company is not a party to
any agreement granting registration or anti-dilution rights to any person with
respect to its debt or equity securities.
Section 2.6 No Material Adverse Change. The financial statements of the
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Company included in its most recent quarterly report on Form 10-Q (the "Form
10-Q") have been prepared in accordance with GAAP applied on a consistent basis
and, as of their respective dates and for the periods then ended, fairly present
the consolidated financial position and results of operation of the Company and
its consolidated subsidiaries. Except as set forth in Schedule 2.6, since the
date of the financial statements included in the Form 10-Q, there has been no
Material Adverse Change in the Company and its consolidated subsidiaries.
"Material Adverse Change" shall mean any change in the business, operations,
properties, prospects or financial condition of any person that is, or is
reasonably likely to be, material and adverse to such person and its
subsidiaries and affiliates, taken as a whole, and/or any condition,
circumstances, or situation that would prohibit or otherwise interfere with the
ability of such person to enter into and perform any of its obligations under
the Transaction Documents. Notwithstanding the preceding sentence, Material
Adverse Change shall not include any adverse change caused by a general slowdown
in the Company's industry or in economic conditions in the United States or the
World.
Section 2.7 Brokers. The Company has no contract, arrangement or
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understanding with any broker, finder or similar agent with respect to the
transactions contemplated by this Agreement.
Section 2.8 Private Offering. Assuming the correctness of the
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representations and warranties set forth in Article III hereof, the offer and
sale of the Convertible Notes and the Warrants to the Purchasers hereunder is
exempt from registration under the Securities Act of 1933, as amended (the
"Securities Act"). The Company has complied and will comply with all applicable
federal and state securities laws in connection with the offer, issuance and
sale of the Convertible Notes, the PIK Notes, the Warrants, the Warrant Shares
and the Conversion Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally, and not jointly, represents and warrants to
the Company that:
Section 3.1 Accredited Investor. It is an "accredited investor" within
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the meaning of Rule 501 under the Securities Act and was not organized for the
specific purpose of acquiring the Convertible Notes or Warrants.
Section 3.2 Certain Securities Matters.
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(a) It has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's
stage of development so as to be able to evaluate the risks
and merits of its investment in the Company and it is able
financially to bear the risks thereof;
(b) It has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's
management;
(c) The Convertible Notes and the Warrants being purchased by it
are being acquired for its own account for the purpose of
investment and not with a view to or for sale in connection
with any distribution thereof, except in accordance with the
Securities Act and the rules and regulations promulgated
thereunder and all applicable state securities or blue sky
laws;
(d) It understands that (i) the Convertible Notes, the Warrants,
the Warrant Shares and the Conversion Shares have not been
registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration
requirements of the Securities Act and the Company's reliance
on such exemption is predicated upon the Purchaser's
representations set forth in this Article III, (ii) the
Convertible Notes, the Warrants, the Warrant Shares and the
Conversion Shares must be held indefinitely unless a
subsequent disposition thereof is registered under the
Securities Act and all applicable state securities and "blue
sky" laws or unless such disposition is exempt from such
registration, (iii) the Convertible Notes, the Warrants, the
Warrant Shares and the Conversion Shares will bear a legend to
such effect and (iv) the Company will make a notation on its
transfer books to such effect;
(e) If it sells any Convertible Notes or Warrant Shares pursuant
to Rule 144A promulgated under the Securities Act, it will
take all necessary steps in order to perfect the exemption
from registration provided thereby, including (i) obtaining on
behalf of the Company information to enable the Company to
establish a reasonable belief that the purchaser is a
qualified institutional buyer and (ii) advising such purchaser
that Rule 144A is being relied upon with respect to such
resale;
(f) It acknowledges and agrees that it had reasonable time and
opportunity to ask questions and receive answers concerning
the business and affairs of the Company and to obtain any
additional information from the Company that was necessary for
it to evaluate the risks and merits of an investment in the
Company, provided, that such investigation shall not impair
Purchaser's ability to rely on the Company's representations
and warranties contained in this Agreement.
(g) It acknowledges and agrees that the stock certificate
representing the Convertible Notes, the Conversion Shares and
the Warrant Shares shall bear the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or under any applicable
state securities laws and neither the securities nor any interest
therein may be sold, transferred, pledged or otherwise disposed of in
the absence of such registration or an exemption from registration
under such Act and the rules and regulations thereunder and in the
absence of registration or an exemption from registration under any
applicable state securities laws.
Section 3.3 Brokers. It has no contract, arrangement or understanding
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with any broker, finder or similar agent with respect to the transactions
contemplated by this Agreement.
ARTICLE IV.
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS
Section 4.1 Representations and Warranties. On and as of the date of
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the Closing, the representations and warranties of the Company set forth in this
Agreement shall be true and correct in all material respects.
Section 4.2 Performance of Obligations. The Company shall have
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performed or complied in all material respects with all conditions, agreements,
obligations and covenants required to be performed or complied with by the
Company under this Agreement prior to the Closing.
Section 4.3 Officer Certificate. Each Purchaser shall have received a
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certificate dated as of the date of the Closing executed by a senior officer of
the Company certifying that, to such officer's knowledge, the conditions
specified in Sections 4.1 and 4.2 have been fulfilled.
Section 4.4 Deliveries. The Company shall have executed and delivered
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to each Purchaser the Convertible Notes and Warrants to which such Purchaser is
entitled as well as the Rights Agreements.
Section 4.5 No Material Adverse Change. Except as set forth in Schedule
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2.6, since September 30, 2001 there shall have been no Material Adverse Change
in the Company and its consolidated subsidiaries.
Section 4.6 Opinion of Counsel. The Company shall have obtained an
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opinion of the Company's General Counsel in form and substance reasonably
satisfactory to the Purchaser.
ARTICLE V.
CERTAIN AGREEMENTS
Section 5.1 Insolvency. Notwithstanding anything in this Agreement to
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the Contrary, the obligations of each Purchaser to purchase Units, Convertible
Notes or Warrants pursuant to this Agreement shall immediately cease and be of
no further force or effect upon the occurrence of any of the following events:
(a) An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Company or any
Significant Subsidiary (as such term is defined in Regulation
SX under the Rules and Regulations of the Securities and
Exchange Commission), or of a substantial part of the property
or assets of the Company or a Significant Subsidiary, under
Title 11 of the United States code, as now constituted or
hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, or (ii)
the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company
or any Significant Subsidiary or for a substantial part of the
property or assets of the Company or any Significant
Subsidiary; provided, however, that if such proceeding shall
be dismissed within 60 calendar days after the date of filing,
then this Agreement shall remain valid from and after the date
of the dismissal; or
(b) The Company or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in clause (a), (iii)
apply for or consent to the appointment of a receiver trustee,
custodian, sequestrator, conservator or similar official for
the Company or any subsidiary, (iv) file an answer admitting
the material allegations of a petition filed against it in any
such proceeding, or (v) make a general assignment for the
benefit of creditors.
Section 5.2 Stockholder Approval. The Company shall take all action
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necessary in accordance with applicable law, to promptly duly call, give notice
of, convene and hold a meeting of the Company's stockholders for the purposes of
(i) approving an increase in the Company's authorized shares of Common Stock to
________ shares of Common Stock and (ii) approving the issuance, pursuant to
this Agreement, of securities convertible into or exercisable for 20% or more of
the Common Stock of the Company outstanding on the date of this Agreement (the
"20% Issuance"). Notwithstanding anything herein to the contrary, until the
first to occur of (x) June 8, 2002 or (y) the date on which the Company's
stockholders have approved the increase in authorized shares of Common Stock and
the 20% Issuance, the Purchasers shall not convert any Convertible Securities
into shares of Common Stock or exercise any Warrants. Each Purchaser hereby
agrees to vote all shares of Common Stock held by such Purchaser in favor of the
proposals set forth in the first sentence of this Section 5.2 at the
stockholders meeting called to approve such proposals.
Section 5.3 Restrictions on Transfers Generally. Each Purchaser hereby
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agrees that it shall not, directly or indirectly, transfer, sell or otherwise
dispose of, any Convertible Notes, the PIK Notes, the Warrants, the Warrant
Shares or the Conversion Shares other than (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an exemption
from registration under the Securities Act and any state securities or "blue
sky" laws.
Section 5.4 Transferees Subject to Agreement. In the event of any
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transfer of any of the Convertible Notes, the PIK Notes, Warrants, Warrant
Shares or the Conversion Shares by the Purchaser pursuant to this Agreement, the
transferee shall hold such securities so acquired with all the rights conferred
by, and subject to all of the restrictions imposed by, this Agreement applicable
to the transferor of such securities. Any transferee of any such securities
shall, as a condition of the consummation of such transfer, agree to be subject
to the terms of this Agreement.
Section 5.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. If it should be determined that a filing
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is required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder, then the parties
required to file shall promptly do so. All fees and expenses related thereto
shall be paid by the Company.
Section 5.6 Additional Indebtedness. Without the consent of holders
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representing at least a majority in Principal Amount of Notes (as hereinafter
defined) then outstanding, the Company shall not, and shall not permit its
subsidiaries, to create, incur or permit to exist any Indebtedness (as such term
is defined in the Convertible Notes) other than: (i) Indebtedness of the Company
and its subsidiaries existing on the date hereof (as well as any additional
Indebtedness issued in lieu of cash payment of interest on such Indebtedness),
(ii) the PIK Notes, (iii) up to an additional $10,000,000 aggregate principal
amount of Convertible Notes (the "Additional Notes"), (iv) up to $1,000,000 of
Working Capital Indebtedness (as such term is defined in the Convertible Notes),
and (v) any additional Convertible Notes issueable in lieu of cash interest
payments on the Additional Notes (the "Additional PIK Notes"). Notwithstanding
the foregoing, the
Additional Notes shall only be issueable if (x) such Additional Notes are issued
on the same terms and conditions as are contained in this Agreement and (y) each
Purchaser shall have been given the right to purchase Additional Notes as part
of such issuance in a principal amount sufficient to enable such Purchaser to
acquire, together with the Convertible Notes acquired by the Purchaser at the
Closing of this Agreement, the percentage of the aggregate principal amount of
Notes to be outstanding immediately following such issuance set forth opposite
such Purchaser's name on Exhibit 1 annexed hereto. For purposes of this
Agreement, the term "Notes" means, collectively, the Convertible Notes, the PIK
Notes, the Additional Notes and the Additional PIK Notes.
Section 5.7 Negative Covenants. Without the consent of holders
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representing at least a majority in principal amount of Notes then outstanding,
the Company shall not and shall not permit its subsidiaries to (i) sell or
transfer all or a substantial portion of its assets, (ii) suffer a Change of
Control (as such term is defined in the Convertible Notes), or (iii) prepay any
Indebtedness; provided, however, that the Company shall have the right,
from time to time, to prepay up to an aggregate of $500,000 of Indebtedness.
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Expenses. The Company will pay its own fees and expenses as
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well as the reasonable fees and expenses of Purchasers in connection with the
transactions contemplated hereby, whether or not such transactions shall be
consummated; provided that the legal fees of Purchasers to be paid by the
Company shall not exceed the sum of $30,000 plus reasonable out-of-pocket
disbursements.
Section 6.2 Survival of Agreements. All covenants, agreements,
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representations and warranties made herein shall survive the execution and
delivery of this Agreement, the issuance, sale and delivery of the Convertible
Notes and the Warrants and the issuance and delivery of the Warrant Shares and
the Conversion Shares.
Section 6.3 Brokerage. Each party hereto will indemnify and hold
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harmless the other against and in respect of any claim for brokerage or other
commissions relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
Section 6.4 Parties in Interest. Unless otherwise provided to the
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contrary, all representations, covenants and agreements contained in this
Agreement by or on behalf of either of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
Section 6.5 Notices. All notices, requests, consents and other
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communications hereunder shall be in writing and shall be delivered in person,
mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
(a) if to the Company, at Two Manhattanville Road, Purchase, New
York 10577, Attention: General Counsel.
(b) if to any Purchaser, at the address of such Purchaser set
forth in Exhibit 1, with copies to
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Proskauer Rose LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇;
(ii) Mobius Venture Capital, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel;
(c) or, in any such case, at such other address or addresses as
shall have been furnished in writing by such party to the
others.
Each such notice, request, consent or other communication shall be treated as
having been given when delivered if delivered personally, or upon confirmation
of receipt if sent by facsimile, mail or overnight courier.
Section 6.6 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
Section 6.7 Entire Agreement. This Agreement, including the Schedules
----------------
and Exhibits hereto, constitutes the sole and entire agreement of the parties
with respect to the subject matter hereof.
Section 6.8 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.9 Amendments. This Agreement may not be amended or modified,
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and no provisions hereof may be waived, without the written consent of the
Company and each Purchaser.
Section 6.10 Severability. If any provision of this Agreement shall be
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declared void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
Section 6.11 Titles and Subtitles. The titles and subtitles used in
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this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Securities Purchase Agreement as of the day and year first above written.
INTERLIANT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CHARTERHOUSE EQUITY PARTNERS III, L.P.
By: CHUSA EQUITY INVESTORS III, L.P.,
General Partner
By: CHARTERHOUSE EQUITY III, INC.,
General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title:
MOBIUS TECHNOLOGY VENTURES VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
SOFTBANK U.S. VENTURES FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
MOBIUS TECHNOLOGY VENTURES
ADVISORS FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
MOBIUS TECHNOLOGY VENTURES
SIDE FUND VI L.P.
By: Mobius VI LLC, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
EXHIBIT 1
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Purchasers
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
Aggregate
Number of Principal Amount
Units to be of Convertible Number of Percentage of
Name and Address of Purchaser Purchased Purchase Price Notes Warrants Notes
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
Charterhouse Equity 75 $7,500,000 $7,500,000 7,500,000 75%
Partners, III, L.P.
c/o Charterhouse Group
International, Inc. ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
MOBIUS Technology Ventures VI 11.615 $1,161,500 $1,161,500 1,161,500 11.615%
L.P.
c/o Mobius Venture Capital
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
SOFTBANK U.S. Ventures Fund VI 12.4575 $1,245,750 $1,245,750 1,245,750 12.4575%
L.P.
c/o Mobius Venture Capital
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
MOBIUS .4525 $45,250 $45,250 45,250 .4525%
Technology Ventures Advisors
Fund VI L.P.
c/o Mobius Venture Capital
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
Aggregate
Number of Principal Amount
Units to be of Convertible Number of Percentage of
Name and Address of Purchaser Purchased Purchase Price Notes Warrants Notes
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
MOBIUS .475 $47,500 $47,500 47,500 .475%
Technology Ventures Side
Fund VI L.P.
c/o Mobius Venture Capital
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
TOTAL 100 $10,000,000.00 $10,000,000 10,000,000 100%
---------------------------------- ---------------- ------------------ ------------------- --------------- ----------------
