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IXL VOTING AGREEMENT
THIS IXL VOTING AGREEMENT (this "Agreement"), entered into on this
31st day of July, 2001, by and among SCIENT CORPORATION, a Delaware corporation
("Scient"), and the stockholders of IXL ENTERPRISES, INC., a Delaware
corporation ("iXL"), that are parties hereto (each, a "Stockholder" and,
collectively, the "Stockholders"). Defined terms not defined herein shall have
the meaning ascribed to such terms in the Merger Agreement (as defined below).
WITNESSETH:
1. WHEREAS, Scient and iXL, concurrently with the execution and
delivery of this Agreement, are entering into that certain Agreement and Plan of
Merger, of even date herewith (the "Merger Agreement"), pursuant to which, on
the terms and subject to the conditions set forth therein, Scient will engage in
a business combination in a merger of equals with iXL (the "iXL Merger");
2. WHEREAS, each Stockholder is the record and beneficial owner
of the number of shares of iXL Common Stock set forth on the signature page
hereof beneath such Stockholder's name (with respect to each Stockholder, such
Stockholder's " Existing Shares" and, together with any shares of iXL Common
Stock or other voting capital stock of iXL, the beneficial ownership of which is
acquired by such Stockholders after the date hereof, whether upon the exercise
of warrants, options, conversion of convertible securities or otherwise, such
Stockholder's "Shares"); and
3. WHEREAS, the Stockholders agree to vote all of their
respective Shares in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the execution of the Merger
Agreement by the parties thereto and the respective representations, warranties,
covenants and agreements set forth in this Agreement, and intending to be
legally bound hereby and thereby, the parties hereto agree as follows:
ARTICLE 1. VOTING
1.1 AGREEMENT TO VOTE. Each Stockholder hereby agrees, severally and not
jointly, that it shall, and shall cause the holder of record on any applicable
record date to, from time to time, at the iXL Stockholders Meeting and any other
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of stockholders of iXL, however called, or in connection with any
written consent of the holders of iXL Common Stock, (a) if a meeting is held,
appear at such meeting or otherwise cause its Shares to be counted as present
thereat for purposes of establishing a quorum, and (b) vote or consent (or cause
to be voted or consented), in person or by proxy, all of its Shares in favor of
the approval and adoption of the Merger Agreement, the iXL Merger and any action
required in furtherance thereof and for any of the transactions contemplated by
the Merger Agreement.
1.2 NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in Scient any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and Scient shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
iXL or exercise any power or authority to
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direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or in the performance of the Stockholder's duties or
responsibilities as stockholders of iXL.
1.3 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
the Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with such
Stockholder' s obligations pursuant to this Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Scient as follows:
2.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by such
Stockholder and no other actions or proceedings on the part of such Stockholder
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Scient,
constitutes a valid and binding obligation of such Stockholder, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium and similar laws relating to or
affecting creditors generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
If such Stockholder is married and any of such Stockholder's Shares constitute
community property under applicable laws, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid and binding
agreement of, such Stockholder's spouse. If this Agreement is being executed in
a representative or fiduciary capacity, the individual or entity signing this
Agreement has the full power and authority to enter into and perform this
Agreement.
2.2 NON-CONTRAVENTION. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not result in any breach or violation of or
be in conflict with or constitute a default under any term of (i) any agreement,
judgment, injunction, order, decree, law regulation or arrangement to which such
Stockholder is a party or by which such Stockholder (or any of its assets) is
bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or affect such Stockholder's
ability to cast all votes necessary to approve and adopt the Merger Agreement
and the transactions contemplated by the Merger Agreement or (ii) if such
Stockholder is an entity, its certificate of incorporation or bylaws.
2.3 SHARES. Such Stockholder's Existing Shares are, and all of its Shares
from the date hereof through and on the Closing Date will be, owned beneficially
by such Stockholder. As of the date
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hereof, such Stockholder's Existing Shares constitute all of the shares of iXL
Common Stock owned of record or beneficially by such Stockholder. Such
Stockholder has or will have the voting power, power of disposition, power to
issue instructions with respect to the matters set forth in Article I hereof,
and power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of such Stockholder's Existing Shares and with respect
to all of such Stockholder's Shares on the Closing Date, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
2.4 FINDER'S FEE. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from iXL or Scient in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
such Stockholder.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF INDIA
Scient represents and warrants to each Stockholder as follows:
3.1 CORPORATE AUTHORIZATION. The execution, delivery and performance by
Scient of the transactions contemplated hereby are within the corporate powers
of Scient and have been duly authorized by all necessary corporate action.
3.2 BINDING OBLIGATION. This Agreement has been duly executed and delivered
by Scient, and, assuming this Agreement constitutes a valid and binding
obligation of each Stockholder, constitutes a valid and binding obligation of
Scient, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium and similar
laws relating to or affecting creditors generally or by general equity
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
ARTICLE 4. OTHER COVENANTS
4.1 FURTHER AGREEMENTS.
(a) Each Stockholder, severally and not jointly, hereby agrees,
while this Agreement is in effect, not to sell, transfer,
pledge, encumber, assign or otherwise dispose of or enforce or
permit the execution of the provisions of any redemption,
share purchase or sale, recapitalization or other agreement
with iXL or enter into any contract, option or other
arrangement or understanding with respect to the offer for
sale, sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of its Existing Shares, any Shares
acquired after the date hereof, any securities exercisable for
or convertible into iXL Common Stock, any other capital stock
of iXL or any interest in any of the foregoing with any
Person.
(b) In the event of a stock dividend or distribution, or any
change in iXL Common Stock by reason of any stock dividend or
distribution, or any change in iXL Common Stock by reason of
any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term " Shares" shall be
deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any securities into
which or for which any or all of the Shares may be changed or
exchanged or which are received in such transaction.
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(c) Each Stockholder covenants and agrees with the other
Stockholders and for the benefit of iXL (which shall be a
third party beneficiary of this Section 4.1(c)) to comply with
and perform all its obligations under this Agreement.
Notwithstanding any provision in this Agreement to the
contrary, it is understood and agreed that all
representations, warranties, covenants and agreements made by
a Stockholder pursuant to this Agreement are made (i) on a
several, not joint, basis and (ii) only as to such
Stockholder.
ARTICLE 5. GENERAL PROVISIONS
5.1 TERMINATION. This Agreement shall terminate and no party shall have any
rights or duties hereunder upon the earlier of (a) the Effective Time or (b)
termination of the Merger Agreement pursuant to Section 8.1 thereof. Nothing in
this Section 5.1 shall relieve or otherwise limit any party of liability for
breach of this Agreement.
5.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on
the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth Business Day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
IF TO SCIENT TO:
Scient Corporation
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: President
wITH A COPY TO:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxx.xxxxxx@xxx.xxx
Attention: Xxxxx X. Xxxxxx, Esq.
IF TO THE STOCKHOLDERS PARTY HERETO:
to the address set forth next to the name of such
Stockholders on the signature pages hereof
WITH A COPY TO:
Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxx 000
0
0
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxxxxx@xxxxx.xxx
Attention: Xxxxx X. Xxxxxxxxx, Esq.
5.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart. Signatures transmitted by facsimile
or other comparable means shall be deemed an original.
5.4 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
5.5 ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity
5.6 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
5.7 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior written
consent of (i) Scient, in the case of an assignment by any Stockholder, and (ii)
those Stockholders holding more than 50% of the iXL Common Stock held by all
Stockholders, in the case of an assignment by Scient, and any attempt to make
any such assignment without such consent shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns
(including, in the case of an individual, any executors, administrators, estates
or legal representatives of such individual).
5.8 SUBMISSION TO JURISDICTION; WAIVERS. Each of the parties to this
Agreement irrevocably agrees that any legal action or proceeding with respect to
this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by any other party hereto or its successors or assigns shall be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each party hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid courts with
respect to any such matter. Each party hereby irrevocably waives, and agrees not
to assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to
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this Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
(c) to the fullest extent permitted by applicable law, that (i) the suit, action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper, and (iii) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts, and (d)
any right to a trial by jury.
5.9 EXPENSES. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
5.10 AMENDMENTS. This Agreement may not be modified or amended, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
5.11 CERTAIN DEFINITIONS. For purposes of this Agreement, (i) the term
"beneficial ownership" (or any similar term) shall have the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934, and (ii) the term "Merger
Agreement" shall include the Merger Agreement as amended from time to time (but
only to the extent any such amendment does not materially adversely affect the
rights and interests of the Stockholders).
5.12 ACTION IN STOCKHOLDER CAPACITY ONLY. Each representation, warranty,
covenant and agreement made by a Stockholder hereunder is made in such
Stockholder's capacity as a stockholder only, not as an officer or director of
iXL. Nothing herein shall limit or affect any Stockholder's ability to take any
action in his or her capacity as an officer or director of iXL.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its respective officers thereunto duly authorized, all
as of the date first written above.
SCIENT:
Scient Corporation
By: /s/ Xxxxxx X. Xxxx
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NAME: Xxxxxx X. Xxxx
TITLE: Chairman and Chief Executive Officer
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STOCKHOLDERS:
ADDRESS STOCKHOLDER
------- -----------
000 Xxxx Xxxxxx, 00xx Xxxxx XXXXX INVESTMENT ASSOCIATES V, L.P.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000 By: Xxxxx Partners V, L.P.
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx XX, Esq. By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxx, Xx.
--------------------------------
Title: General Partner
NUMBER OF SHARES OF
IXL COMMON STOCK: 14,673,227
000 Xxxx Xxxxxx, 00xx Xxxxx XXXXX EQUITY PARTNERS V, L.P.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Fax: (000) 000-0000 Name: Xxxxx X. Xxxxx, Xx.
--------------------------------
Attention: Xxxxx X. Xxxxxxx XX, Esq. Title: General Partner
NUMBER OF SHARES OF
IXL COMMON STOCK: 1,182,869
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000 Xxxx Xxxx Xxxxxx THE RIVERSTONE GROUP, LLC
----------------------------
Suite 1500
----------------------------
Xxxxxxxx, XX 00000
---------------------------- By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Tel: (000) 000-0000
---------------- NAME: Xxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
----------------
Attention: Xxxxxxx X. Xxxxxxxxx TITLE: Manager
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NUMBER OF SHARES OF
IXL COMMON STOCK: 12,000,000
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XX XXXXXX PARTNERS
----------------------------
---------------------------
---------------------------- By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Tel: NAME: Xxxxxxx Xxxxxx
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Fax:
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Attention: TITLE:
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NUMBER OF SHARES OF
IXL COMMON STOCK: 7,939,427
