EXHIBIT 4.6
INVESTOR STOCKHOLDERS AGREEMENT
INVESTOR STOCKHOLDERS AGREEMENT, dated as of April 30, 1996 (the
"Investor Stockholders Agreement"), among IXL Holdings, Inc., a Delaware
corporation (the "Company"), Xxxxx Investment Associates V, L.P. ("KIA V"),
Xxxxx Equity Partners V, L.P. ("KEP V" and, together with KIA V, "Xxxxx")
and each of the stockholders listed in the Schedule of Individual Stockholders
attached hereto as Exhibit A (the "Individual Investors"). For the purposes of
this Agreement, "Class A Preferred Stock" shall mean the Class A Convertible
Preferred Stock of the Company, par value $.01 per share.
The Company, Xxxxx and the Individual Investors agree as follows:
1. Transfer of Class A Preferred Stock. (a) Prior to the closing of
-----------------------------------
an IPO (as such term is defined in the Stockholders Agreement referred to in
Section 3 (c)), no Individual Investor may, directly or indirectly, sell,
assign, mortgage, transfer, pledge, hypothecate or otherwise dispose of or
transfer (collectively, "Transfer") any shares of Class A Preferred Stock
(including, without limitation, to any Affiliate of such Individual Investor (as
defined below)), except for (a) Transfers which, prior thereto, Xxxxx shall have
-
consented to in writing, or (b) Transfers pursuant to the following paragraph
-
(b). For the purposes of this Agreement, "Affiliate" shall mean, with respect to
any individual, corporation, partnership, limited liability company, trust or
other entity or organization (each, a "Person"), any other Person directly or
indirectly controlling, controlled by, or under common control with such Person.
In no event shall an Individual Investor be deemed to be an Affiliate of Xxxxx.
(b) In the event that any of KIA V, KEP V or any of their respective
Affiliates intends to sell shares of Class A Preferred Stock to a third party or
parties unaffiliated with Xxxxx, each Individual Investor, upon the request of
Xxxxx, will be obligated to participate in such sale (in the proportion to the
number of shares of Class A Preferred Stock then owned by the Individual
Investor and all other persons or entities so intending, or obligated, to so
sell shares of Class A Preferred Stock) for a purchase price per share of Class
A Preferred Stock and on other terms and conditions not less favorable to the
Individual Investor than those applicable to Xxxxx or such Affiliate.
2. Stock Certificate Legends. A copy of this Agreement shall be
-------------------------
filed with the Secretary of the Company and kept with the records of the
Company. Each certificate representing any shares of Class A Preferred Stock
owned by the Individual Investor shall bear the following legends:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL TO
THE STOCKHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF WHICH
WHICH OPINION ARE, SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS EXEMPT
FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT, SUCH LAWS AND
THE INVESTOR STOCKHOLDERS AGREEMENT, DATED AS OF APRIL 30, 1996."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER CONDITIONS, AS SPECIFIED IN THE INVESTOR STOCKHOLDERS
AGREEMENT, DATED AS OF APRIL 30, 1996, AMONG IXL HOLDINGS, INC. (THE
"COMPANY") AND CERTAIN STOCKHOLDERS OF THE COMPANY. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE OFFICE OF THE COMPANY AND WILL BE FURNISHED
WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST."
3. Agreement to be Bound. (a) Each Individual Investor shall hold,
---------------------
sell, exchange, liquidate, amend, convert and exercise all other rights,
privileges and opportunities under or with respect to the Class A Preferred
Stock and any equity securities of the Company into which the Class A Preferred
Stock is convertible in the manner, at the time and to the extent determined by
KIA V.
(b) Any Transfer of shares of Class A Preferred Stock or any equity
securities of the Company into which the Class A Preferred Stock is convertible
by the Individual Investor otherwise permitted under this Agreement shall be
permitted and shall be effective only if the transferee of such shares shall
agree in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument of assumption reasonably satisfactory in substance and
form to Xxxxx. Upon the execution of such instrument by such
2
transferee, such transferee shall be deemed to be the Individual Investor for
all purposes of this Agreement.
4. Termination. Any party to this Agreement which ceases to own any
-----------
shares of Class A Preferred Stock or any equity securities of the Company into
which the Class A Preferred Stock is convertible shall cease to be a party to
this Agreement and, thereafter, shall have no rights or obligations hereunder,
provided that no sale of shares of Class A Preferred Stock or any equity
securities of the Company into which the Class A Preferred Stock is convertible
by any Individual Investor in breach of this Agreement shall relieve such
Individual Investor of liability for any such breach.
5. Further Assurances. Each party hereto or person or entity subject
------------------
hereto shall do and perform, or cause to be done and performed, all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto, or person or
entity subject hereto may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
6. Governing Law. This Agreement and the rights and obligations of
-------------
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof.
7. Invalidity of Provision. The invalidity or unenforceability of
-----------------------
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
8. Notices. All notices or other communications required or
-------
contemplated by this Agreement shall be in writing and shall be given by
delivery in person or by first class mail, if to Xxxxx, addressed or delivered
to it at its principal place of business, and if to any Individual Investor,
addressed or delivered to such Individual Investor at the address appearing on
the records of Xxxxx for such Individual Investor.
9. Headings; Execution and Counterparts. The headings and captions
------------------------------------
contained herein are for convenience
3
and shall not control or affect the meaning of our construction of any provision
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which together shall constitute one
and the same instrument.
4
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of the date first above written.
IXL HOLDINGS, INC.
By: /s/ U. Xxxxxxx Xxxxx, Xx.
--------------------------------
Name:
Title:
XXXXX INVESTMENT ASSOCIATES V, L.P.
By: Xxxxx Partners V, L.P.
General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
General Partner
XXXXX EQUITY PARTNERS V, L.P.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
General Partner
/s/ Xxxx X. XxXxxxxxxxxx
------------------------------------
XXXX X. XXXXXXXXXXXX
XXXXX AND XXXXXXXX XXXXX TRUST
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxx X. Xxxxx
Trustee
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
XXXXXXX X. XXXXXXXX
5
EXHIBIT A
Individual Investors
--------------------
Xxxx X. XxXxxxxxxxxx
Xxxxx and Xxxxxxxx Xxxxx Trust
Xxxxxxx X. Xxxxxxxx
6
AGREEMENT TO BE BOUND TO INVESTOR STOCKHOLDERS AGREEMENT
Agreements to be Bound to Investor Stockholders Agreement of each Investor
7
