Investor Rights Agreement - Interland Inc., PAR Investment Partners LP, Hartford Capital Appreciation Fund
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT is entered into as of February 8, 2002
by and among Interland, Inc., a Minnesota corporation (the "COMPANY"), PAR
Investment Partners, L.P. ("PAR"), Hartford Capital Appreciation Fund
("HARTFORD"), and the persons and entities designated as "Piggyback Holders" on
Exhibit A attached hereto (the "PIGGYBACK HOLDERS") (with PAR, Hartford and the
Piggyback Holders being collectively referred to as the "NEW HOLDERS").
RECITALS
WHEREAS, the New Holders are concurrently herewith entering into a
Stock Purchase Agreement (the "STOCK PURCHASE AGREEMENT") with the Micron
Technology Foundation, Inc., an Idaho non-profit corporation (the "FOUNDATION")
whereby the New Holders will acquire an aggregate of 58,622,863 shares of the
Company's Common Stock (the "PURCHASED SHARES") from the Foundation (the
"PURCHASE");
WHEREAS, the Foundation has been assigned certain rights under the
Amended and Restated Registration Rights Agreement, dated as of August 6, 2001
(the "REGISTRATION RIGHTS AGREEMENT"), by and among the Company, Interland,
Inc., a Georgia corporation ("INTERLAND-GEORGIA"), and certain other persons and
entities set forth on Exhibit B attached hereto (the "OTHER HOLDERS") and in
connection with the Purchase, the Foundation will assign all of the assignable
rights of the Foundation under the Registration Rights Agreement to CPM and
Hartford;
WHEREAS, in connection with the Purchase, the Company desires to grant
to the Piggyback Holders piggyback registration rights with respect to the
shares of the Common Stock they acquired in the Purchase, subject to the terms
and conditions set forth in this Agreement, which piggyback registration rights
shall be subordinate to the rights of the Other Holders;
WHEREAS, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Section 2 hereof, however capitalized terms used
but not defined herein shall have the meanings set forth in the Stock Purchase
Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. REGISTRATION RIGHTS.
1.1 Assignment of Registration Rights.
1.1.1 The Company hereby acknowledges and approves of the
assignment pursuant to Section 1.7 of the Registration Rights Agreement by the
Foundation to PAR and Hartford of all of the assignable rights of the Foundation
under the Registration Rights Agreement with respect to the Purchased Shares
acquired by each of PAR and Hartford from the Foundation pursuant to the Stock
Purchase Agreement.
1.1.2 PAR and Hartford each agree to be bound by and
subject to the terms and conditions of the Registration Rights Agreement.
1.1.3 This Agreement shall serve as notice as and to the
extent required by the Registration Rights Agreement of the name and address of
PAR and Hartford and the shares of Common Stock with respect to which such
registration rights are being assigned.
1.2. Piggyback Registration Rights.
1.2.1. Request.
If at any time or times after the date of this Agreement the
Company proposes to make a registered public offering of any of its securities
under the Act (whether to be sold by it or by one or more selling
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shareholders), other than an offering registered on Form S-8 or Form S-4, or
successor forms relating to employee stock plans and business combinations, the
Company shall, not less than 20 days prior to the proposed filing date of the
registration form, give written notice of the proposed registration to all
Piggyback Holders specifying in reasonable detail the proposed transaction to be
covered by the registration statement, and at the written request of any
Piggyback Holder delivered to the Company within 20 days after giving such
notice, shall include in such registration and offering, and in any underwriting
of such offering, all Registrable Securities as may have been designated in the
Piggyback Holder's request. The Company shall have no obligation to include
shares of Common Stock owned by any Piggyback Holder in a registration statement
pursuant to this Section 1.2, unless and until such Piggyback Holder (a) in
connection with any underwritten offering, agrees to enter into an underwriting
agreement, a custody agreement and power of attorney and any other customary
documents required in an underwritten offering all in customary form and
containing customary provisions (but not requiring any Piggyback Holder to
provide indemnification or contribution more extensive than is set forth in
Section 1.5.3 hereof) and (b) shall have furnished the Company with all
information and statements about or pertaining to such Piggyback Holder in such
reasonable detail and on such timely basis as is reasonably deemed by the
Company to be legally required with respect to the preparation of the
registration statement.
1.2.2. Reduction.
If a registration in which any Piggyback Holder has the right
to participate pursuant to this Section 1.2 is an underwritten registration, and
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering, the Company shall include in such
registration (i) first, the securities of the Company proposed to be sold by the
Company, (ii) second, the shares proposed to be sold by PAR and Hartford
exercising rights under Section 1.2.1 of the Registration Rights Agreement,
allocated pro rata among them in proportion to the number of Registrable
Securities owned by them, (iii) third, the shares proposed to be sold by Other
Holders exercising rights under Section 1.2.1 of the Registration Rights
Agreement, allocated pro rata among such Other Holders in proportion to the
number of Registrable Securities owned by such Other Holders, (iv) fourth, the
shares proposed to be sold by CPQ Holdings, Inc. ("CPQ") and Hewlett-Packard
Company ("HP") exercising rights under the Registration Rights Agreements by and
between Interland-Georgia and each of CPQ and HP dated as of June 30, 2000 (the
"CQP/HP AGREEMENTS"), (v) fifth, Ken Gavranovic and Waldemar Fernandez
exercising rights under Section 1.2.1 of the Registration Rights Agreement on an
equal basis in proportion to the number of Registrable Securities owned by them,
(vi) sixth, the shares proposed to be sold by Piggyback Holders exercising
rights under Section 1.2.1 of this Agreement, allocated pro rata among the
Piggyback Holders in proportion to the number of Registrable Securities owned by
each of them and (vii) seventh, by any other shareholders proposing to sell
shares of Common Stock pursuant to such registration. The preceding order of
reduction is a reflection of the Registration Rights Agreement and not a result
of an independent negotiation by and among the New Holders.
1.3. Registration Procedures. Whenever any Piggyback Holder has
requested that any shares of Common Stock be registered pursuant to Section 1.2
hereof, the Company shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration
statement with respect to such shares and use its reasonable best efforts to
cause such registration statement to become effective as soon as reasonably
practicable thereafter (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
counsel for such Piggyback Holder with copies of all such documents proposed to
be filed) and to cause such registration statement to comply as to form and
content in all material respects with the SEC's forms, rules and regulations;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 120 days or until such Piggyback Holder has completed
the distribution described in such registration statement, whichever occurs
first;
(c) furnish to such Piggyback Holder such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such Piggyback Holder may
reasonably request;
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(d) use its reasonable efforts to register or qualify
such shares under such other securities or blue sky laws of such jurisdictions
as such Piggyback Holder requests (and to maintain such registrations and
qualifications effective for a period of 120 days or until such Piggyback Holder
has completed the distribution of such shares, whichever occurs first), and to
do any and all other acts and things which may be necessary or advisable to
enable such Piggyback Holder to consummate the disposition in such jurisdictions
of such shares (provided that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not be required but
for this Section 1.3, (ii) subject itself to taxation in any such jurisdiction,
or (iii) file any general consent to service of process in any such
jurisdiction); provided that, notwithstanding anything to the contrary in this
Agreement with respect to the bearing of expenses, if any such jurisdiction
shall require that expenses incurred in connection with the qualification of
such shares in that jurisdiction be borne in part or full by such Piggyback
Holder, then such Piggyback Holder shall pay such expenses to the extent
required by such jurisdiction;
(e) notify such Piggyback Holder, at any time when a
prospectus relating thereto is required to be delivered under the Act within the
period that the Company is required to keep the registration statement
effective, of the happening of any event as a result of which the prospectus
included in any such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading, and promptly prepare, file and furnish to the Piggyback Holder a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such shares, such prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or, in light of the circumstances then existing, necessary to
make the statements therein not misleading;
(f) cause all such shares to be listed on securities
exchanges, if any, on which similar securities issued by the Company are then
listed;
(g) provide a transfer agent and registrar for all such
shares not later than the effective date of such registration statement;
(h) enter into such customary agreements and take all
such other actions as such Piggyback Holder reasonably requests (and subject to
its reasonable approval) in order to expedite or facilitate the disposition of
such shares;
(i) make available for inspection by such Piggyback
Holder at their reasonable request, by any underwriter participating in any
distribution pursuant to such registration statement, and by any attorney,
accountant or other agent retained by such Piggyback Holder at each of their
reasonable request or by any such underwriter, all financial and other records,
pertinent corporate documents, and properties (other than confidential
intellectual property) of the Company;
(j) if the offering is underwritten and at the request of
any seller of Registrable Securities, use its best efforts to furnish on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration statement has
become effective under the Act and that (A) to the knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Act, (B) the registration statement, the related prospectus and each
amendment or supplement thereof comply as to form in all material respects with
the requirements of the Act (except that such counsel need not express any
opinion as to financial statements or other financial or statistical data
contained therein), (C) to such other customary matters as reasonably may be
requested by counsel for the underwriters or by such seller or its counsel and
(D) (not an opinion but as a negative assurance) that to the knowledge of such
counsel, such registration statement does not contain a material
misrepresentation or omission to state a material fact necessary to make the
statements therein not misleading; and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Act, and such letter shall additionally cover
such other financial matters (including information as to the period
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ending no more than five business days prior to the date of such letter) with
respect to such registration as such underwriters reasonably may request.
1.4. Holdback Agreement.
(a) Notwithstanding anything in this Agreement to the
contrary, if after any registration statement to which the rights hereunder
apply becomes effective (and prior to completion of any sales thereunder), the
Board of Directors determines in good faith that the failure of the Company to
(i) suspend sales of stock under the registration statement or (ii) amend or
supplement the registration statement, would have a material adverse effect on
the Company, the Company shall so notify each Piggyback Holder participating in
such registration and each Piggyback Holder shall suspend any further sales
under such registration statement until the Company advises the Piggyback Holder
that the registration statement has been amended or that conditions no longer
exist which would require such suspension, provided that the Company may impose
any such suspension for no more than 30 days and no more than 2 times during any
twelve month period.
(b) In the event that the Company effects a registration
of any securities under the Act in an underwritten public offering, each
Piggyback Holder agrees not to effect any sale, transfer, disposition or
distribution, including any sale pursuant to Rule 144 under the Act, of any
Purchased Shares (except as part of such offering) during the 90-day period
commencing with the effective date of the registration statement for any public
offering, provided that all officers, directors and holders of 5% or more of the
Company's outstanding voting securities enter into agreements providing for
similar restrictions on sales.
1.5. Registration Expenses.
1.5.1. Piggyback Holder Expenses.
If, pursuant to Sections 1.2 hereof, Registrable Securities
are included in a registration statement, then the Piggyback Holder thereof
shall pay all transfer taxes, if any, relating to the sale of its shares, and
any underwriting discounts or commissions or the equivalent thereof applicable
to the sale of its shares.
1.5.2. Company Expenses.
Except for the fees and expenses specified in Section 1.5.1
hereof and except as provided below in this Section 1.5.2, the Company shall pay
all expenses incident to the registration of shares by the Company and any
Piggyback Holders pursuant to Section 1.2 hereof, and to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, underwriting discounts, fees and expenses (other
than any Piggyback Holder's portion of any underwriting discounts or commissions
or the equivalent thereof), printing expenses, messenger and delivery expenses,
and fees and expenses of counsel for the Company and a single counsel for all
Piggyback Holders selling shares (the fees of such counsel not to exceed
$20,000; provided that in the case of registrations of shares pursuant to
Section 1.2 hereof, the Company shall not be responsible for counsel fees of
more than $50,000 in the aggregate for all such registrations pursuant to
Section 1.2 hereof) and all independent certified public accountants and other
persons retained by the Company.
1.5.3. Indemnity and Contribution.
(a) In the event that any shares owned by a
Piggyback Holder are proposed to be offered by means of a registration statement
pursuant to Sections 1.2 hereof, to the extent permitted by law, the Company
agrees to indemnify and hold harmless such Piggyback Holder, any underwriter
participating in such offering, each officer, partner, manager and director of
such person, each person, if any, who controls or may control such Piggyback
Holder or underwriter within the meaning of the Act and each representative of
any Piggyback Holder serving on the Board of Directors of the Company (such
Piggyback Holder or underwriter, its officers, partners, managers, directors and
representatives, and any such other persons being hereinafter referred to
individually as an "INVESTOR INDEMNIFIED PERSON" and collectively as "INVESTOR
INDEMNIFIED PERSONS") from and against all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs, and expenses,
including, without limitation, interest, penalties, and attorneys' fees and
disbursements, asserted against,
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resulting to, imposed upon or incurred by such Investor Indemnified Person,
directly or indirectly (hereinafter referred to in this Section 1.5.3 in the
singular as a "claim" and in the plural as "claims"), based upon, arising out of
or resulting from any breach of representation or warranty made by the Company
in any underwriting agreement or any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or any
omission or alleged omission to state therein a material fact necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading, except insofar as such claim is based upon, arises
out of or results from information furnished to the Company in writing by such
Investor Indemnified Person for use in connection with the registration
statement.
(b) In the event that any shares owned by a
Piggyback Holder are proposed to be offered by means of a registration statement
pursuant to Section 1.2 hereof, to the extent permitted by law, each such
Piggyback Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, each officer of the Company who signs the Registration
Statement, each director of the Company, any underwriter participating in such
offering, and each person, if any, who controls or may control the Company or
such underwriter within the meaning of the Act (the Company, such officers and
directors of the Company, such underwriter, and any such other persons also
being hereinafter referred to individually as a "COMPANY INDEMNIFIED PERSON" and
collectively as "COMPANY INDEMNIFIED PERSONS") from and against all claims based
upon, arising out of or resulting from any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or any
omission or alleged omission to state therein a material fact necessary in order
to make the statement made therein, in the light of the circumstances under
which they were made, not misleading, but only to the extent that such claim is
based upon, arises out of or results from information furnished to the Company
in writing by such Piggyback Holder explicitly for use in connection with the
registration statement; provided, however, that a Piggyback Holder shall be
under no obligation to indemnify or hold harmless any Company Indemnified
Persons with respect to any amount in excess of the net cash proceeds paid to
such Piggyback Holder in connection with any sales of securities effected under
such registration statement.
(c) The indemnification provisions set forth
herein shall be in addition to any liability the Company or any Piggyback Holder
may otherwise have to the Investor Indemnified Persons or Company Indemnified
Persons. The Company Indemnified Persons and the Investor Indemnified Persons
are hereinafter referred to as Indemnified Persons. Promptly after receiving
notice of any claim in respect of which an Indemnified Person may seek
indemnification under this Section 1.5.3, such Indemnified Person shall submit
written notice thereof to either the Company or the Piggyback Holders, as the
case may be (sometimes being hereinafter referred to as an "INDEMNIFYING
PERSON"). The omission of the Indemnified Person so to notify the Indemnifying
Person of any such claim shall not relieve the Indemnifying Person from any
liability it may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the Indemnifying
Person to reduce such liability was materially adversely affected by such
omission. In addition, the omission of the Indemnified Person so to notify the
Indemnifying Person of any such claim shall not relieve the Indemnifying Person
from any liability it may have otherwise than hereunder. The Indemnifying Person
shall have the right to undertake, by counsel or representatives of its own
choosing, the defense, compromise or settlement (without admitting liability of
the Indemnified Person) of any such claim asserted, such defense, compromise or
settlement to be undertaken at the expense and risk of the Indemnifying Person,
and the Indemnified Person shall have the right to engage separate counsel, at
its own expense, whom counsel for the Indemnifying Person shall keep informed
and consult with in a reasonable manner; provided, however, if the defendants in
any such action include both the Indemnified Person and the Indemnifying Person
and the Indemnified Person shall have reasonably concluded that there may be a
conflict between the positions of the Indemnifying Person and the Indemnified
Person in conducting the defense of any such action or that there may be legal
defenses available to it and/or other Indemnified Persons which are different
from or additional to those available to the Indemnifying Person, the
Indemnified Person shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action
on behalf of the Indemnified Person at the expense of the Indemnifying Person.
In the event the Indemnifying Person shall elect not to undertake such defense
by its own representatives, the Indemnifying Person shall give prompt written
notice of such election to the Indemnified Person, and the Indemnified Person
shall undertake the defense, compromise or settlement (without admitting
liability of the Indemnified Person) thereof on behalf of and for the account
and risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. Notwithstanding the foregoing, no
Indemnifying Person shall be obligated hereunder with respect to amounts paid in
settlement of any claim if such settlement is effected without the consent of
such Indemnifying Person (such consent not to be unreasonably withheld).
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(d) If the indemnification provided for in this
Section 1.5 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Person, then the Indemnifying Person, in lieu of indemnifying such
Indemnified Person hereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of any losses or claims in such proportion
as is appropriate to reflect the relative fault of the Indemnified Person on the
one hand and the Indemnifying Person on the other in connection with the
statements or omissions that resulted in such losses or claims as well as any
other relevant equitable considerations. The relative fault of the Indemnified
Person and the Indemnifying Person shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Person or by the Indemnified Person and
the parties' relative intent, knowledge and access to information and
opportunity to correct or prevent such statement or omission. In no event will
the liability of any Piggyback Holder for contribution exceed the net proceeds
received by such Piggyback Holder in any sale of securities to which such
liability relates.
1.6. Grant and Transfer of Registration Rights.
Piggyback Holders shall have the right to transfer or assign
the rights contained in this Agreement to any limited partner or affiliate of a
Piggyback Holder or any mutual funds or other pooled investment vehicles or
entities for which a Piggyback Holder or any of its affiliates serves as general
partner, managing member, investment advisor or in another similar capacity in
connection with the transfer of any Registrable Securities provided: (a) the
Company is, within thirty (30) days after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement; and (c) such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
1.7. Information From Piggyback Holder.
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Piggyback Holder that such Piggyback
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Piggyback Holder's Registrable Securities.
1.8. Changes in Common Stock.
If there is any change in the Common Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock as
so changed.
1.9. Rule 144 Reporting.
With a view to making available to the Piggyback Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in SEC Rule 144 or any similar or analogous
rule promulgated under the Act, at all times after the effective date of the
first registration under the Act filed by the Company for an offering of its
securities to the general public;
(b) File with the SEC, in a timely manner, all reports
and other documents required of the Company under the Act and the Exchange Act;
and
(c) So long as a Piggyback Holder owns any Registrable
Securities, furnish to such Piggyback Holder forthwith upon request: a written
statement by the Company as to its compliance with the
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reporting requirements of said Rule 144 of the Act, and of the Exchange Act (at
any time after it has become subject to such reporting requirements); a copy of
the most recent annual or quarterly report of the Company; and such other
reports and documents as a Piggyback Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing it to sell any such
securities without registration.
2. RESTRICTIONS ON TRANSFER.
2.1 Each New Holder agrees that it will not Transfer its Purchased
Shares until May 6, 2002. For purposes of this Section 2.1, any sale, transfer,
assignment, pledge, hypothecation, short sale, collateralization, or any
derivative transaction involving the Common Stock, directly or indirectly, shall
constitute a "TRANSFER".
2.2 From May 6, 2002 until December 31, 2002, regardless of
whether such Common Stock is registered, each New Holder may only Transfer an
aggregate amount of Common Stock that within the preceding three months does not
exceed the greater of: (i) one percent of the Common Stock outstanding as shown
by the most recent report or statement published by the Company, or (ii) the
average weekly reported volume of trading in the Company Common Stock on the
Nasdaq National Market (or such other substitute or successor exchange on which
the Common Stock may be traded) during the four calendar weeks preceding the
Transfer.
2.3 Notwithstanding Sections 2.1 and 2.2 hereof and subject to
applicable laws, regulations and rules, Common Stock held by a New Holder may be
Transferred (i) to the Company or to a person or persons that the Company has
approved in writing; (ii) in a merger or consolidation; (iii) pursuant to a plan
of liquidation that is authorized by the Company's board of directors; (iv) to
any limited partner or affiliate of such New Holder or any mutual funds or other
pooled investment vehicles or entities for which a New Holder or any of its
affiliates serves as general partner, managing member, investment advisor or in
another similar capacity; or (v) to one or more other New Holders.
2.4 Such New Holder understands that the Purchased Shares are
characterized as "restricted securities" under the Act inasmuch as they are
being acquired from the Foundation, an affiliate of the Company, in a
transaction not involving a public offering and that under the Act and
applicable regulations thereunder such securities may be resold without
registration under the Act only in certain limited circumstances. In this
connection, such New Holder represents that such New Holder is familiar with
Rule 144 of the SEC as presently in effect, and understands the resale
limitations imposed thereby and by the Act, including, without limitation, that
the requisite holding period under Rule 144 commences upon the acquisition of
the Purchased Shares. Such New Holder understands that the Company is under no
obligation to register any of the securities sold hereunder except as provided
in this Agreement or the Registration Rights Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Company.
The Company hereby represents and warrants to each New Holder that the
statements in the following paragraphs of this Section 3.1 are all true and
complete:
(a) As of January 31, 2002, there were
137,847,343 shares of Common Stock outstanding and as of the date hereof there
were 21,858,000 shares of Common Stock reserved for issuance pursuant to option
plans, and as of the date hereof there were 4,764,961 warrants to issue shares
of Common Stock, and as of the date hereof there were 2,500,000 shares of Common
Stock reserved for the Company's 1995 Employee Stock Purchase Plan.
(b) Provided that no single entity, or entities
acting in concert, acquire more than twenty percent (20%) of the Company's
Common Stock: (i) no "change of control" of the Company shall occur as a result
of Purchase or any other sale of shares of Common Stock by the Foundation, and
(ii) (A) no options, warrants, rights, contracts or arrangements to acquire
Common Stock or other securities of the Company or securities exercisable for or
convertible into shares of Common Stock or other securities of the Company shall
become exercisable or convertible, and (B) no employee benefit plans, awards,
rights to payments or bonuses payable in cash or other property or rights to
terminate employment or receive any other employee benefit shall be accelerated,
vest or become exercisable or payable, in each case as a result of the Purchase
or any other sale of shares of
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Company Common Stock by the Foundation (collectively, "CHANGE OF CONTROL
EVENTS"). In addition, if any Change of Control Event would otherwise occur but
shall have been waived by the person or entity having rights thereto, or the
plan, award, agreement or contract providing such rights shall have been
amended, the Company shall provide to the New Holders instruments of waiver of
such rights or amendments of the plans, awards, agreements or contracts
providing such rights executed by such persons or entities, in each case
reasonably acceptable to the New Holders.
(c) With respect to documents filed by the
Company with the Securities & Exchange Commission, no such document filed
pursuant to the Exchange Act since January 1, 2000 contained, as of its filing
date (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statement made therein, in the light of the circumstances under which they were
made, not misleading, except to the extent corrected prior to the date of this
Agreement by a subsequently filed document. No such document filed pursuant to
the Act, since January 1, 2000 contained, as of the date on which the document
became effective (or if post-effectively amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing), any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading,
except to the extent corrected prior to the date of this Agreement by a
subsequently filed document.
(d) Provided that (i) none of the New Holders
directly or indirectly through any written or oral agreement, arrangement,
relationship, understanding or otherwise has or shares the power to vote, direct
the voting of, dispose of or direct the disposition of any shares of Company
Common Stock other than the Purchased Shares; and (ii) the representations and
warranties of the New Holders pursuant to Section 3.2(b) are true and correct,
then the Purchase will not result in a "control share acquisition" within the
meaning of Section 302A.671 of the Minnesota Business Corporation Act (the
"MBCA") by any of the New Holders.
(e) In response to a good faith definitive
proposal, the Purchase has been approved by the affirmative vote of a majority
of a committee of the Company's Board of Directors composed of all of the
Board's disinterested directors prior to the Purchase as required by MBCA
Section 302A.673(1)(a). None of these disinterested directors was an officer or
an employee of the Company, or of a related organization, or has been an officer
or employee of the Company, or of a related organization, within five years
preceding the formation of the committee of disinterested directors as required
by MBCA Section 302A.673(1)(d)(3).
3.2 Representations and Warranties of the New Holders
Each New Holder hereby represents and warrants to the Company,
severally and not jointly, that the statements in the following paragraphs of
this Section 3.2 are all true and complete:
(a) Other than as set forth in Exhibit C
attached hereto, New Holder has not, since January 1, 2002, Transferred any
shares of Company Common Stock;
(b) New Holder has not acted or agreed to act
with any other person or entity as a partnership, limited partnership, syndicate
or other group for the purposes of acquiring, owning or voting the Purchased
Shares or any other securities of the Company;
(c) New Holder has directly or indirectly
through any written or oral agreement, arrangement, relationship, understanding
or otherwise has or shares the power to vote, direct the voting of, dispose of
or direct the disposition of any shares of Company Common Stock other than the
Purchased Shares.
3.3 The representations and warranties set forth in this Section 3
shall survive indefinitely.
4. DEFINITIONS.
The capitalized terms contained in this Agreement shall have the
following meanings unless otherwise specifically defined:
- 8 -
<PAGE>
"ACT" shall mean the Securities Act of 1933, as amended.
"AGREEMENT" shall mean this Investor Rights Agreement.
"BUSINESS DAY" shall mean Monday through Friday and shall exclude any
federal or bank holidays observed in New York City.
"COMMON STOCK" shall mean the common stock of the Company, $0.01 par
value per share.
"COMPANY" shall mean Interland, Inc., a Minnesota corporation formerly
known as Micron Electronics, Inc., or any successor thereto.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"HOLDERS" shall mean the New Holders, the Other Holders and any other
person or entity that is a valid transferee of the rights granted
hereunder pursuant to Section 1.6 hereof or is a valid transferee of
the rights granted under the Registration Rights Agreement pursuant to
Section 1.6 thereof.
"INTERLAND-GEORGIA" shall mean Interland, Inc., a Georgia corporation
that merged with and into the Company.
"NEW HOLDERS" shall mean PAR, Hartford and the Piggyback Holders and
any other person or entity that is a valid transferee or assignee of
the rights granted hereunder pursuant to Section 1.6 hereof.
"MTI SHAREHOLDER AGREEMENT" shall mean that shareholder agreement dated
as of March 22, 2001, by and among Micron Technology, Inc. and the
Company, to which the Foundation agreed to bound by Section 1 thereof
in a Donation Agreement dated as of August 30, 2001 by and between the
Foundation and Micron Semiconductor Products, Inc.
"OTHER HOLDERS" shall mean certain other persons and entities set forth
on Exhibit B attached hereto and any other person or entity that is a
valid transferee or assignee of the rights granted thereunder pursuant
to Section 1.7 thereof.
"PIGGYBACK HOLDERS" shall mean those persons that are listed on Exhibit
A attached hereto.
"REGISTRABLE SECURITIES" shall mean (i) those shares of Company Common
Stock beneficially owned by the New Holders, (ii) those shares of
Company Common Stock beneficially owned by the Other Holders, (iii) the
shares of Company Common Stock issued to CPQ and HP upon the exercise
of their warrants to acquire Company Common Stock and (iv) any equity
securities issued as a distribution with respect to or in exchange for
or in replacement for any of the shares referred to in clauses (i),
(ii) or (iii); provided, however, that Registrable Securities shall not
include any securities that have been previously sold pursuant to a
registration statement filed under the Act or under Rule 144
promulgated under the Act, or which have otherwise been transferred in
a transaction in which the transferor's rights under this Agreement are
not assigned or are not subject to transfer restrictions under the Act
or applicable state securities laws.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Amended and Restated
Registration Rights Agreement, dated as of August 6, 2001 by and among
Micron Technology, Inc., the Company, Interland-Georgia, and the Other
Holders.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Act and/or the Exchange
Act.
5. MISCELLANEOUS.
- 9 -
<PAGE>
5.1. Entire Agreement; Amendment.
This Agreement constitutes the entire agreement among the
parties hereto with respect to the matters provided for herein, and it
supersedes all prior oral or written agreements, commitments or understandings
with respect to the matters provided for herein. This Agreement may not be
amended without the written consent of the Company and New Holders who in the
aggregate beneficially own not less than 50% of the Purchased Shares as of the
date hereof.
5.2. Waiver.
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
instruments given in connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a waiver of any default or
any acquiescence therein. No single or partial exercise of any such right, power
or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by the
party against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein.
5.3. No Third Party Beneficiaries.
Except to the extent that the rights hereunder are assigned in
accordance with Section 1.6, it is the explicit intention of the parties hereto
that no person or entity other than the parties hereto is or shall be entitled
to bring any action to enforce any provision of this Agreement against any of
the parties hereto, and the covenants, undertakings and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns. All rights,
covenants, undertakings and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only between the Company and
each of the New Holders. No New Holder is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the other New
Holders.
5.4. Binding Effect.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns.
5.5. Governing Law.
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of Delaware (excluding the choice of law
rules thereof).
5.6. Notices.
All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be
hand-delivered, sent by overnight courier service or mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by facsimile, addressed as follows:
(i) If to the Company:
Interland, Inc.
303 Peachtree Center Avenue
Atlanta, GA 30303
Attention: Chief Executive Officer
Facsimile No.: (404) 260-2681
- 10 -
<PAGE>
with a copy (which shall not constitute notice) to:
Attn: General Counsel
Facsimile No.: (404) 720-3728
(ii) If to the New Holders, then to the names and
addresses set forth on the signature pages hereto.
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request, or communication which shall be hand-delivered,
mailed, transmitted or telecopied in the manner described above, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt, the delivery
receipt, or the answerback being deemed conclusive, but not exclusive, evidence
of such delivery) or at such time as delivery is refused by the addressee upon
presentation.
5.7. Execution in Counterparts.
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
5.8 New Holders Acting Independently.
Each New Holder is acting severally and not jointly with the
other New Holders in executing this Agreement and accepting the rights, duties
and responsibilities hereunder. The Company's agreement with each New Holder is
a separate agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 11 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement,
or have caused this Investor Rights Agreement to be duly executed on their
behalf, as of the day and year first hereinabove set forth.
INTERLAND, INC.
By:
---------------------------------------------
Name: Joel J. Kocher
Title: President and Chief Executive Officer
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 12 -
<PAGE>
THE NEW HOLDERS:
PAR INVESTMENT PARTNERS, L.P.
By: PAR GROUP, L.P.
its general partner
By: PAR CAPITAL MANAGEMENT, INC.
its general partner
By:
----------------------------
Edward L. Shapiro,
Title: Vice President
Address: One Financial Center,
Suite 1600,
Boston, MA 02111
----------------------------
Facsimile (617) 556-8875
Shares: 20,000,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 13 -
<PAGE>
HARTFORD CAPITAL APPRECIATION FUND
By: Wellington Management Company, LLP,
its Investment Sub-Advisor
By:
-------------------------------------
Julie A. Jenkins, Vice President
Address: c/o Wellington Management Company
75 State Street
Boston, MA 02109
617-951-5000
Facsimile 617-790-7760
Shares: 13,100,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 14 -
<PAGE>
CARPENTERS PENSION TRUST FOR SOUTHERN CALIFORNIA
By:
--------------------------------
Title:
--------------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 3,578,600
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 15 -
<PAGE>
UNITED BROTHERHOOD OF CARPENTERS
PENSION FUND
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 502,900
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 16 -
<PAGE>
THE COMMON FUND MULTI-STRATEGY EQUITY FUND
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 224,100
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 17 -
<PAGE>
STINSON CAPITAL PARTNERS, L.P.
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 2,027,700
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 18 -
<PAGE>
STINSON CAPITAL PARTNERS II, L.P.
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 688,900
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 19 -
<PAGE>
STINSON CAPITAL PARTNERS III, L.P.
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 603,900
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 20 -
<PAGE>
BK CAPITAL PARTNERS IV, L.P.
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 84,800
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 21 -
<PAGE>
STINSON CAPITAL FUND (CAYMAN), LTD.
By:
-----------------------------
Title:
-----------------------------
Address: 909 Montgomery Street,
Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Purchased Shares: 289,100
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 22 -
<PAGE>
RAPTOR GLOBAL PORTFOLIO LTD
By:
-----------------------------
Title:
-----------------------------
Address: 50 Rowes Wharf,
6th Floor
Boston, MA 02110
Facsimile: (617) 737-9280
Purchased Shares: 4,630,813
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 23 -
<PAGE>
TUDOR BVI GLOBAL PORTFOLIO LTD
By:
-----------------------------
Title:
-----------------------------
Address: 50 Rowes Wharf,
6th Floor
Boston, MA 02110
Facsimile: (617) 737-9280
Purchased Shares: 872,741
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 24 -
<PAGE>
ALTAR ROCK FUND L.P.
By:
-----------------------------
Title:
-----------------------------
Address: 50 Rowes Wharf,
6th Floor
Boston, MA 02110
Facsimile: (617) 737-9280
Purchased Shares: 32,556
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 25 -
<PAGE>
TUDOR PROPRIETARY TRADING LLC
By:
------------------------------
Title:
------------------------------
Address: 50 Rowes Wharf,
6th Floor
Boston, MA 02110
Facsimile: (617) 737-9280
Purchased Shares: 463,890
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 26 -
<PAGE>
KAHN CAPITAL PARTNERS LP
By:
-----------------------------
Title:
-----------------------------
Address: 5506 Worsham Court
Windermere, FL 34786
Facsimile: (208) 728-8007
Purchased Shares: 2,400,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 27 -
<PAGE>
KAHN CAPITAL PARTNERS OFFSHORE
By:
-----------------------------
Title:
-----------------------------
Address: 5506 Worsham Court
Windermere, FL 34786
Facsimile: (208) 728-8007
Purchased Shares: 600,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 28 -
<PAGE>
VARDON PARTNERS, L.P.
By: Vardon Capital L.L.C.,
its General Partner
By:
--------------------------------
Richard W. Shea, Jr.,
its Owner and Managing Member
Address: 850 Third Avenue,
8th Floor
New York, NY 10022
Facsimile: (212) 331-6566
Purchased Shares: 147,400
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 29 -
<PAGE>
VARDON PARTNERS II, L.P.
By: Vardon Capital L.L.C.,
its General Partner
By:
-------------------------------
Richard W. Shea, Jr.,
its Owner and Managing Member
Address: 850 Third Avenue,
8th Floor
New York, NY 10022
Facsimile: (212) 331-6566
Purchased Shares: 319,200
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 30 -
<PAGE>
VARDON INTERNATIONAL, LTD.
By: Vardon Capital Management, L.L.C.
its Investment Manager
By:
------------------------------------
Richard W. Shea, Jr.,
its Owner and Managing Member
Address: P.O. Box 705 GT
68 Fort Street
George Town, Grand Cayman
Cayman Islands
Facsimile: (212) 331-6566
Purchased Shares: 533,400
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 31 -
<PAGE>
FIRST NEW YORK SECURITIES, L.L.C.
F/B/O ACCOUNT 1010159026
By:
-----------------------------
Donald Erenberg
Its: Managing Member
Address: F/B/O Account 1010159026
850 Third Avenue,
8th Floor
New York, NY 10022
Facsimile: (212) 331-6566
Purchased Shares: 400,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 32 -
<PAGE>
JOEL J. KOCHER
-----------------------------
Joel J. Kocher
Address: 26810 Founders Place,
Spicewood, TX 78669
Facsimile: (404) 260-2681
Purchased Shares: 200,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 33 -
<PAGE>
ROBERT AND CAROLYN C. LEE, TRUSTEES
FOR THE 1986 LEE FAMILY TRUST, DATED
12/4/86
By:
-----------------------------------
Robert C. Lee, Trustee
-----------------------------------
Carolyn C. Lee, Trustee
Address: 17 Magee Court,
Moraga, CA 94556
Facsimile:
-----------------------------------
Purchased Shares: 200,000
-----------------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 34 -
<PAGE>
THE BALOUSEK FAMILY LIMITED
PARTNERSHIP DTD 1/8/99
By:
-----------------------------
Jack Balousek
Its:
-----------------------------
Address: 11 Magee Ct.,
Moraga, CA 94556
Facsimile:
-----------------------------
Purchased Shares: 100,000
-----------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 35 -
<PAGE>
ROBERT T. SLEZAK & JANE G. SLEZAK,
COTRUSTEES OF THE ROBERT T. SLEZAK
TRUST DATED JULY 8, 1999
BY:
-------------------------------
Robert T. Slezak, Cotrustee
-------------------------------
Jane G. Slezak, Cotrustee
ADDRESS: 6032 Country Club Oaks,
Omaha, NE 68152
FACSIMILE:
-------------------------------
PURCHASED SHARES: 800,000
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
- 36 -
<PAGE>
EXHIBIT A
NAME PURCHASED SHARES
---- ----------------
Par Investment Partners, L.P. 20,000,000
Hartford Capital Appreciation Fund 13,100,000
Company Repurchase 5,822,863
----------
THE PIGGYBACK HOLDERS
Carpenters Pension Trust for Southern California 3,578,600
United Brotherhood of Carpenters Pension Fund 502,900
The Common Fund Multi-strategy Equity Fund 224,100
Stinson Capital Partners, L.P. 2,027,700
Stinson Capital Partners II, L.P. 688,900
Stinson Capital Partners III, L.P. 603,900
BK Capital Partners IV, L.P. 84,800
Stinson Capital Fund (Cayman), Ltd. 289,100
Raptor Global Portfolio LTD 4,630,813
Tudor BVI Global Portfolio LTD 872,741
Altar Rock Fund L.P. 32,556
Tudor Proprietary Trading LLC. 463,890
Kahn Capital Partners LP 2,400,000
Kahn Capital Partners Offshore 600,000
Vardon Partners, L.P. 147,400
Vardon Partners II, L.P. 319,200
Vardon International, Ltd. 533,400
First New York Securities, L.L.C 400,000
Joel J. Kocher 200,000
Robert and Carolyn C. Lee, trustees for the 1986 Lee Family
Trust, dated 12/4/86 200,000
The Balousek Family Limited Partnership DTD 1/8/99 100,000
Robert T. Slezak & Jane G. Slezak, Cotrustees of the Robert T.
Slezak Trust dated July 8, 1999 800,000
----------
Total 58,622,863
- 37 -
<PAGE>
EXHIBIT B
THE OTHER HOLDERS
SHARES OF
NAME REGISTRABLE SECURITIES OWNED
AS OF JANUARY 31, 2002
Ken Gavranovic 8,038,746
Waldemar Fernandez 2,794,134
Bell Atlantic Investments, Inc. 2,109,449
Crest Communications Partners L.P. 3,316,082
Crest Entrepreneurs Fund L.P. 96,320
Boulder Ventures III, L.P. 1,407,386
Boulder Ventures III (Annex), L.P. 85,540
BancBoston Ventures, Inc. 2,137,057
Microsoft Corporation 2,676,849
Network Solutions, Inc. 1,071,796
Private Equity Co-Invest Ltd. 1,492,926
- 38 -
<PAGE>
EXHIBIT C
New Holder Transfers since January 1, 2002
- 39 -