EXHIBIT 10.11
[IXL LOGO] [HPS LOGO]
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT"), is entered into this 28th day
of December 2000 by and between
HPS AMERICA, INC. of 0000, Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxxx XX 00000
("HPS"), for and on behalf of HPS Group
and
IXL ENTERPRISES, INC. of 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, XX, 00000 (the
"COMPANY")
RECITALS
A. The Company is a corporation, incorporated under the laws of state of
Delaware, having company registration no. 2604787, and is engaged in
the business, inter alia, of internet design and consulting solutions;
B. HPS is a corporation, incorporated under the laws of state of Delaware,
having company registration no. 8095097, and is engaged in the
business, inter alia, of provision of software services with expertise
in applications development, enterprise systems management (ESM),
migration and re-engineering, enterprise resource planning (ERP) and
implementation and web-based solutions;
C. The Company desires to raise US$ 3,000,000 in equity financing and HPS
is willing to purchase 1,000,000 shares of the Company's common stock
at US$ 3.00 per Share; and
D. The Company has, in consideration, agreed to commit to the
subcontracting and /or providing of not less than Business (as
hereinafter defined) of US$ 65,000,000 to HPS Group over a period of
three (3) years.
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants, and agreements set forth in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which both parties
mutually acknowledge, the parties, intending to be legally bound, agree as
follows.
[IXL LOGO] [HPS LOGO]
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 DEFINITIONS: Except for the terms defined somewhere else in this
Agreement which will prevail (including in the recitals hereof and in
the Appendixes and Schedules hereto), the following words and
expressions shall have, where the context so permits, the following
meaning ascribed to them:
1.01.1 "AFFILIATE" means a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned
Person;
1.01.2 "AGREEMENT" shall mean this Stock Purchase Agreement and
includes the Recitals, Schedules and Exhibits attached hereto;
1.01.3 "APPLICABLE LAWS" with respect to any Person, means all
provisions of laws, statutes, ordinances, rules, regulations,
permits, certificates or orders (including tax laws, import
export laws, environmental laws and labor laws) of any
Governmental Authority applicable to such Person or any of its
assets or property or to which such Person or any of its
assets or property is subject, and all judgments, injunctions,
orders and decrees of all courts and arbitrators in
proceedings or actions in which such Person is a party or by
which it or any of its assets or properties is or may be bound
or subject;
1.01.4 "BOARD" shall mean the current Board of Directors of the
Company;
1.01.5 "BUSINESS" means the Software Services in areas of HPS Group's
technical and business domain expertise, as provided by HPS
Group and paid for by the Company, and will include such other
business as may be agreed between the parties from time to
time;
1.01.6 "BUSINESS PERIOD" means a period of three calendar years from
Effective Date;
1.01.7 "CERTIFICATE OF INCORPORATION" shall mean the Certificate of
Incorporation of the Company, as amended through the date
hereof;
1.01.8 "CLAIMS" shall have the meaning assigned to it in Clause 7.01;
1.01.9 "CLIENT" at any point of time means all end customer(s) and/or
user(s) of services of the Company, from whom the Company has
generated Revenues of not less than US$ 4,000,000 in the
previous calendar year but specifically excludes:
1.01.9.1 all end customer(s) and/or user(s) of
services of Xxxxx Group and HCL Group;
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1.01.9.2 all end customer(s) and/or user(s) of
services of HPS Group, with whom HPS has
existing business relationship as of the
Effective Date;
1.01.9.3 all intermediary outsourcing, consulting,
product and IT companies, who are not end
customer(s) and/or user(s), including the
Person(s) listed in Schedule 1 attached
hereto; and
1.01.9.4 all such end customer(s) and/or user(s) of
the Company outside the Geographical
Location and from each of whom HPS Group
does not generate revenue of more than US$
2,000,000 per annum;
1.01.10 "CONTROL" (including the terms "CONTROLLING," "CONTROLLED,"
"CONTROLLED BY," and "UNDER COMMON CONTROL WITH") means the
possession, directly or indirectly, or as trustee or executor,
of the power to direct or cause the direction of the
management or policies of a Person, whether through the
ownership of securities, or as trustee or executor, by
contract or credit arrangement or otherwise;
1.01.11 "DIGITAL MEDIA AND BROAD BAND SERVICES" means the provision of
solutions with streaming media, which consists of video
(sequence of "moving images" that are sent in compressed form
over the Internet and displayed by the viewer as they arrive)
and audio;
1.01.12 "EFFECTIVE DATE" means 1st January 2001;
1.01.13 "ENCUMBRANCE" means any mortgage, right of way, pledge,
equitable interest, prior assignment, conditional sales
contract, hypothecation, right of others, claim, security
interest, title defect, title retention agreement, voting
trust agreement, interest, option, lien, charge, easement,
encroachment or other condition, commitment, restriction or
limitation of any nature whatsoever, including restriction on
use, voting, transfer, receipt of income or exercise of any
other attribute or ownership or any other encumbrances;
1.01.14 "ESCROW AGREEMENT" means the escrow agreement between the
Company, HPS and an escrow agent in the form attached hereto
as Schedule 5 or as modified by both parties in consultation
with such escrow agent;
1.01.15 "FIRST SIX MONTHS MINIMUM BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Five Million US Dollars
(US$ 5,000,000), of which at least seventy percent (70%) is
from Offshore Business;
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1.01.16 "FUNDAMENTAL DOCUMENTS" means the documents by which any
Person (other than an individual) establishes its legal
existence or which govern its internal affairs. The
Fundamental Documents of the Company are the Certificate of
Incorporation and by-laws and any other organizational
document each as amended or restated (or both) to date;
1.01.17 "GAAP" shall mean United States generally accepted accounting
principles, consistently applied;
1.01.18 "GEOGRAPHICAL LOCATION" means the city or town where the
Company provides services to any end customer(s)/ user(s);
1.01.19 "GOVERNMENTAL AUTHORITY(IES)" means any domestic or foreign
government or political subdivision thereof, whether on a
federal, state or local level and whether executive,
legislative or judicial in nature, including any agency,
authority, board, bureau, commission, court, department or
other instrumentality thereof;
1.01.20 "HCL GROUP" means HCL Technologies Limited, HCL Infosystems
Limited and NIIT Limited, all companies incorporated under the
laws of India, and will include their Affiliates now existing
or hereinafter formed;
1.01.21 "HPS GROUP" means HCL Xxxxx Systems NV, a company incorporated
under the laws of The Netherlands (the parent company of HPS)
and will include all its subsidiaries, now existing or
hereinafter formed or re-organized;
1.01.22 "IXL GROUP" means iXL Enterprises, Inc., a company
incorporated under the laws of state of Delaware and will
include all its subsidiaries, now existing or hereinafter
formed or re-organized;
1.01.23 "INDIA CENTRIC WORK" means Offshore Business, and other
Software Services to be provided in India;
1.01.24 "MASTER SERVICES AGREEMENT" means the agreement in the form
attached hereto as Schedule 4;
1.01.25 "MATERIAL ADVERSE EFFECT" means any change, effect, or
condition that, individually or when taken together with all
other such changes, effects, or conditions, would be
materially adverse to the business, operation, assets,
financial condition, results of operations, or prospects of
any party, or for fulfillment of any of the obligations of
such party in terms of this Agreement and would include,
without limitation, any direction, order, or other
instructions from a Governmental Authority;
1.01.26 "MINIMUM CUMULATIVE BUSINESS VOLUME" means Revenues generated
from Business subcontracted and/ or provided to HPS Group by
the Company of not less than Sixty Five Million US Dollars
(US$ 65,000,000), of which at least seventy percent (70%) is
from Offshore Business;
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1.01.27 "OBSERVER" means any person nominated by HPS from time to
time, who shall be invited by the Company to all meetings of
its Board and/ or the Shareholders, and shall have the right
to observe all proceedings in such meetings;
1.01.28 "OFFSHORE BUSINESS" means the provision of Software Services
using resources and facilities of HPS and/or its Affiliates
based in India, including without limitation, HCL Xxxxx
Systems Ltd., a company incorporated under the laws of India;
1.01.29 "ONLINE TRAINING" means internet-based educational forums that
supplement instructor-led training programs;
1.01.30 "XXXXX GROUP" means Xxxxx Systems Corporation, a corporation
organized under the laws of state of Delaware and will include
their Affiliates now existing or hereinafter formed;
1.01.31 "PERSON" will be broadly construed to include to mean an
individual, corporation, partnership, association, trust,
unincorporated organization, Governmental Authority, other
entity or group;
1.01.32 "PROSPECTS" means the existing customers of any member of HPS
Group and the prospective clients/ customers, with whom any
member of HPS Group has developed business relationship, but
yet to generate any revenue from such prospective clients/
customers. Without limitation, the term "Prospects" would
include the Persons listed in Schedule 1 attached hereto;
1.01.33 "PURCHASE PRICE" means a sum of US$ Three Million (calculated
as One Million shares multiplied by US$ 3.00, the price per
Share);
1.01.34 "REVENUES" means revenues generated by HPS pursuant to
subcontract and /or provision of Software Services as
determined in accordance with GAAP;
1.01.35 "SEC" means the United States Securities and Exchange
Commission;
1.01.36 "SECOND SIX MONTHS MINIMUM BUSINESS VOLUME" means Revenues
generated from Business subcontracted/ and or provided to HPS
Group by the Company of not less than Ten Million US Dollars
(US$ 10,000,000), of which at least seventy percent (70%) is
from Offshore Business;
1.01.37 "SECOND YEAR MINIMUM ANNUAL BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Twenty Million US
Dollars (US$ 20,000,000), of which at least seventy percent
(70%) is from Offshore Business;
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1.01.38 "SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as
the same may from time to time be in effect;
1.01.39 "SHARE" means common share par value US$ 0.01 each of the
Company;
1.01.40 "SOFTWARE SERVICES" means application software development,
migration, re-engineering, systems integration, service
management and professional services from software personnel
of HPS Group, but does not include Digital Media and Broad
Band Services, Online Training and Wireless Solutions;
1.01.41 "THIRD YEAR MINIMUM ANNUAL BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Thirty Million US
Dollars (US$ 30,000,000), of which at least seventy percent
(70%) is from Offshore Business;
1.01.42 "WIRELESS SOLUTIONS" means the development of a real-time,
virtual (not dial-up) data connection to business networks
through mobile handsets.
1.02 HEADINGS. The headings and subheadings in this Agreement are included
for convenience and identification only and are not intended to
describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provisions hereof in any manner whatsoever.
1.03 INTERPRETATION: NUMBER AND GENDER. The definitions in Clause 1.01 shall
apply equally to both the singular and plural form of the terms
defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter form. The words
"include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation". Unless the context otherwise requires,
(a) all references to articles, sections, paragraphs, appendixes and
schedules are to Articles, Sections, Paragraphs, Appendixes and
schedules to, this Agreement; and (b) the terms "herein", "hereof",
"hereto", "hereunder" and words of similar import refer to this
Agreement as a whole.
ARTICLE II
THE TRANSACTION
2.01 PURCHASE AND SALE OF SHARES: Subject to the other terms of this
Agreement, including the provisions of Article VI, HPS agrees to
purchase one million shares of the Company (the "SHARES") at the
Purchase Price, and the Company agrees to issue and allot such Shares,
free from any Encumbrances in the manner provided in this Article II.
2.02 PAYMENT OF PURCHASE PRICE: HPS shall pay 50% of the Purchase Price on
or before 31st December 2000 and the remaining 50% shall be paid on or
before 31st August 2001.
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2.03 ESCROW AGREEMENT: In order to secure the payment of the final
installment of the Purchase Price by HPS on August 31, 2001, the
parties shall enter into an Escrow Agreement on or before 15th January
2001.
2.04 ISSUE OF SHARES BY THE COMPANY TO HPS: The Company shall issue the
Shares, fully paid up to HPS within one week from the date of receipt
of first 50% of the Purchase Price by the Company. The Shares to be
issued to HPS shall be on private placement basis, and shall be free
from any Encumbrances, save the only restriction of such Shares being
lock in for a period of not more than one year from the date of such
issue, as per the applicable laws, and then being saleable under Rule
144 promulgated under the Securities Act. The Company agrees it will
take all reasonable steps that may be required to ensure that Shares so
issued to HPS are listed on the NASDAQ Stock Exchange within 30 days
after their issue.
2.05 Immediately after issue of Shares as specified in Clause 2.04, and no
later than ten days after receipt of first 50% of the Purchase Price,
the Company shall deliver, or cause to be delivered, to HPS the
following:
2.05.1 The original share certificates representing the Shares held
in proper form in the name of HPS;
2.05.2 Evidence satisfactory to HPS that all required consents and
approvals of Government Authorities, and other Persons, that,
under Applicable Laws, must be obtained by the Company and
that are necessary for the Company to consummate the
transaction contemplated hereunder, have been obtained and
satisfied;
2.05.3 Evidence satisfactory to the appointment of Xx. X X Xxxxxxx as
the first Observer.
2.06 BUSINESS TO BE PROVIDED BY THE COMPANY TO THE HPS GROUP. In
consideration of HPS agreeing to subscribe for the Shares in the
capital of the Company, subject to the terms and conditions hereof, the
Company shall, during the Business Period, subcontract and/or provide
Business to HPS as given below:
2.06.1 In the period from the Effective Date through June 30, 2001,
in the amount of the First Six Months Minimum Business Volume;
2.06.2 In the period from July 1, 2001, through December 31, 2001, in
the amount of the Second Six Months Minimum Business Volume;
2.06.3 In the period from January 1, 2002, through December 31, 2002,
in the amount of the Second Year Minimum Annual Business
Volume;
2.06.4 In the period from January 1, 2003, through December 31, 2003,
in the amount of the Third Year Minimum Annual Business
Volume, and
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2.06.5 During the Business Period, in the aggregate and cumulative
amount of the Minimum Cumulative Business Volume.
For purposes of determining whether the Company has satisfied its
obligations under this Clause 2.06, the following shall be applicable:
(a) In the event that any Offshore Business offered to the HPS
Group by the Company pursuant to the terms of this Agreement
is refused for any reason by the HPS Group, the amount of
Offshore Business required under sub-clauses 2.06.1, 2.06.2,
2.06.3 or 2.06.4, as the case may be, and sub-clause 2.06.5
above, shall be reduced by the Revenue that would have been
generated by such refused Offshore Business as determined by
both the parties in good faith;
(b) In the event that the Revenue generated by any Business for
any specified time period exceeds the minimum amount of the
Revenue required for such time period, and there have been no
shortfalls in the Revenue in prior time periods, such excess
Revenue shall be applied to the minimum required Revenue for
the next applicable time period(s);
(c) In the event that the Revenue generated by any Business for
any specified time period exceeds the minimum amount of the
Revenue required for such time period, and there has been a
shortfall or shortfalls in the Revenue in a prior time period
or periods, and as a result of such shortfall or shortfalls,
the Company has made payment to HPS in accordance with the
terms of Clause 2.09, HPS shall refund the amount which it
received in lieu of the minimum required Revenue for such time
period with respect to the amount of such excess, within
thirty (30) days following the expiration of the time period
concerned;
2.07 AUDIT. The Company shall have the right from time to time at its
expense to conduct an audit of the Business. HPS agrees to make
available to the Company or its designees its financial and other
records as applicable to the Business, in HPS premises for such
purposes.
2.08 GENERAL DUTIES. During the Business Period, the parties agree to
cooperate in good faith with each other in the joint development of
business plans and market development programs designed to further the
objectives set forth in this Agreement. In that regard, the parties
agree: (a) that the Company will allow the Observer, the observation
rights with respect to the Company's and meetings of Boards of
Directors, provided however, that HPS's observation rights hereunder
shall terminate at such time during the Business Period that it is the
owner of less than 1,000,000 shares; (b) that it is the intention of
HPS to give observation rights to a representative of iXL with respect
to HPS' shareholders and meetings of board; (c) that each party will
designate high level executives to monitor and xxxxxx the business
relationship between the Company and HPS as contemplated by this
Agreement; and (d) to hold periodic meetings of the parties, in any
event at an interval of not more than 3 months, to discuss the
continued implementation of the terms of this Agreement. HPS agrees to
assign three (3) full-time personnel at their sole expense to work with
the Company - two at Company's Atlanta
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Office and one at Company's London Office, as liaisons for the
implementation of the objects set forth in this Agreement. HPS reserves
the right to change/ replace these personnel from time to time. HPS
agrees that it will build sufficient business infrastructure and
personnel in order to provide timely, efficient and good quality
Software Services to the Company in accordance with the terms of this
Agreement and the terms of the Master Services Agreement.
2.09 IF COMPANY DEFAULTS IN GIVING BUSINESS. Should the Company fail to meet
any of its commitments given in sub-clauses 2.06.1 to 2.06.5 above,
then the Company shall within 60 days of the end of each of the
relevant period, pay to HPS the difference between Business committed
for the relevant period and the value of the Business actually given to
HPS Group by the Company in the relevant period.
2.10 PROVISION OF SOFTWARE SERVICES. The terms relating to the Software
Services to be provided by HPS Group to the Company or any of its
Clients, shall be governed by the provisions of the Master Services
Agreement in the form given in Schedule 4, and the task order(s) to be
entered into under the Master Service Agreement from time to time.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to HPS as follows:
3.01 DUE INCORPORATION AND GOOD STANDING. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties, to conduct its
business as currently conducted and as proposed to be conducted and to
enter into and perform its obligations under this Agreement and the
other documents to which it is a party. The Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required except
where the failure to so qualify could not reasonably be expected to
have a Material Adverse Effect.
3.02 AUTHORITY. The Company has all necessary corporate power and authority
to execute and deliver this Agreement and each of the other documents
to which it is a party, and to perform its obligations hereunder and
thereunder, and to consummate the transactions contemplated hereby and
thereby (THE "TRANSACTIONS"). The execution and delivery of this
Agreement and the other documents to which it is a party has been
authorized by all necessary corporate action on the part of the Company
and no other corporate proceedings or approvals are required on the
part of the Company to authorize this Agreement or the other documents
to which it is a party or to consummate the Transactions. The sale of
the Shares is not and will not be subject to any preemptive rights or
rights of first refusal. This Agreement and the other documents have
been duly and validly executed and delivered by the Company and,
assuming the due
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authorization, execution and delivery thereof by HPS, constitutes the
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.03 AUTHORIZATION OF THE SHARES. The issuance and sale of the Shares have
been duly authorized and the Shares when issued to HPS for the
consideration set forth herein will be fully paid up and
non-assessable, with no personal liability attached to the ownership
thereof, and free of restrictions on transfer other than as provided
under this Agreement, the Escrow Agreement and applicable state and
federal securities laws.
3.04 NO VIOLATION OR CONFLICT; NO DEFAULT. Neither the nature of the
business of the Company, the execution, delivery or performance of this
Agreement, the Shares or any of the other documents by the Company, nor
the compliance with its obligations hereunder or thereunder, nor the
consummation of the Transactions, nor the issuance, sale or delivery of
the Shares will:
3.04.1 violate or conflict with any provision of the Fundamental
Documents of the Company;
3.04.2 violate or conflict with any Applicable Laws, except where
such violation would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
or
3.04.3 violate, be in conflict with, or constitute a breach or
default (or any event which, with the passage of time or
notice or both, would become a default) under, or permit the
termination of, or require the consent of any Person under,
result in the creation or imposition of any Encumbrance upon
any property of the Company under, result in the loss by the
Company or modification in any manner adverse to the Company
of any right or benefit under, or give to any other Person any
right of termination, amendment, acceleration, repurchase or
repayment, increased payments or cancellation under, any
mortgage, indenture, note, debenture, agreement, lease,
license, permit, franchise or other instrument or obligation,
whether written or oral (collectively, "CONTRACTS") to which
the Company is a party or by which its properties may be bound
or affected except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
3.05 NO APPROVALS REQUIRED. The execution and delivery of this Agreement and
the other documents to which the Company is a party do not, and the
performance of its obligations under this Agreement and the other
documents and the consummation of the Transactions will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority pursuant to any Applicable
Laws, except where the failure to obtain such consents, approvals,
authorizations or permits or to make such filings or notifications,
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or prevent or delay in any
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material respect consummation of the transactions, or otherwise prevent
the Company from performing its obligations under this Agreement or the
other documents.
3.06 COMPANY'S SEC FILINGS. As of their respective filings dates with the
SEC, the Company's filings with the SEC: (a) did not contain any untrue
statements of material facts or omit to state material facts required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
and (b) complied in all material respects with the applicable
requirements of the Securities Act and the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
3.07 COMPLIANCE WITH LAWS AND ABSENCE OF CERTAIN BUSINESS PRACTICES. The
Company has complied in all material respects with all Applicable Laws.
There are no arbitration proceedings, labor strikes, slowdowns or
stoppages, material grievances or other labor troubles pending, or, to
the knowledge of the Company, overtly threatened, with respect to the
employees of the Company, which may have a Material Adverse Effect.
3.08 ABSENCE OF UNDISCLOSED LIABILITIES. The Company has no debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected or
reserved against in the latest published balance sheet of the Company
other than those incurred in the ordinary course of business, and which
are usual and normal in amount, both individually and in the aggregate
and do not have any Material Adverse Affect.
3.09 LITIGATION. Except as described on Schedule 2, there are (i) no
material action, suit, proceeding, investigation or arbitration
proceeding pending or threatened against the Company, (ii) no claims or
potential claims from customers or Clients of the Company and (iii) no
outstanding court orders, judgments, court decrees, or court
stipulations to which the Company is a party or by which any of the
Company's assets are bound which would have a Material Adverse Effect
on the Company.
3.10 CLIENT LIST. Attached as Schedule 3 is the complete list of Clients
with whom the Company had Revenues from Business of more than US
$4,000,000 in the last 12 months. The Company also undertakes to update
the list once in a period of three calendar months, until such time
that this Agreement terminates. If any of the Clients listed in
Schedule 3, is also listed as the Prospect(s) in Schedule 1, then
Schedule 1 will take precedence, and Schedule 3 will be deemed not to
contain any such name.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HPS
HPS hereby represents and warrants to the Company as follows:
4.01 ORGANIZATION. HPS is a company limited by shares duly organized,
validly existing, and in good standing under the laws of its
jurisdiction of organization, and is duly qualified to
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do business as a foreign corporation in each jurisdiction in which the
failure to be so qualified would affect the validity or enforceability
of this Agreement.
4.02 AUTHORITY. HPS has all requisite corporate power and authority to
execute and deliver this Agreement to which it is a party, to perform
its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery of this Agreement to which it is a party by HPS and the
consummation by HPS of the transactions contemplated hereby has been
duly authorized by all necessary corporate action and no other
corporate proceedings on the part of HPS are necessary to authorize
this Agreement to which it is a party or to consummate the transactions
contemplated hereby. This Agreement and the Master Services Agreement
have been duly executed and delivered by HPS and assuming the due
authorization, execution, and delivery of this Agreement by the
Company, constitute the legal, valid, and binding obligations of HPS,
enforceable in accordance with their respective terms.
ARTICLE V
COVENANTS, UNDERTAKINGS AND AGREEMENTS BY THE PARTIES
5.01 SATISFACTION OF CONDITIONS PRECEDENT. The parties covenant and
undertake that they will make good faith endeavor to satisfy
expeditiously and completely all the conditions precedent in terms of
this Agreement.
5.02 FULFILLMENT OF OBLIGATIONS AND FURTHER ACTION. The parties further
covenant and undertake that they will perform all such acts as may be
reasonably required to be performed by them, in order to fulfil their
obligations in terms of this Agreement and shall provide such further
assistance as may be reasonably required by the other party in order to
facilitate fulfillment of the other party's obligations in terms of
this Agreement.
5.03 FINALIZATION OF SUITABLE OPERATIONAL MODEL. The parties covenant and
undertake that they would mutually cooperate to put in place a suitable
operational model for purposes of implementation of this Agreement.
5.04 BUSINESS PLANNING AND MARKET DEVELOPMENT. The parties covenant and
undertake that they will cooperate with each other in business planning
and market development programs, during the term of this Agreement, to
enable each party to plan for their resources. IXL agrees and
understands that because of the Business to be provided by iXL, HPS
Group will be making substantial investments in infrastructure and
personnel.
5.05 INFORMATION FOR FILINGS. Both parties will furnish to each other all
information as may be reasonably required by the other party for
inclusion in any application or filing made by such party to any
Governmental Authority in connection with the transactions contemplated
by this Agreement.
5.06 The Company will keep HPS informed through Observer, on regular basis:
5.06.1 of its restructuring and revival plans; and
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5.06.2 any financial/ strategic transactions of value more than US$
25 million conducted by the Company
by allowing such Observer or his nominee to participate in the meetings
of the Board of Directors and senior management of the Company.
5.07 Either Party further covenants with and undertakes to the other that it
will not do any act, nor will it omit to do any act, that may have a
Material Adverse Effect. Either Party further covenants that it will
keep the other informed of any developments it may be come to know that
may have a Material Adverse Effect.
5.08 Both Parties agree and undertake that they shall execute and deliver
the Escrow Agreement on or before 15th January 2001.
ARTICLE VI
CONDITIONS PRECEDENT
6.01 The obligations of either party to consummate the transactions provided
for by this Agreement is subject to the fulfillment of obligations by
the other party that are required to be fulfilled prior to the
consummation of the transactions by the first mentioned party. Such
obligation by either party shall include procuring all required
consents and approvals of Government Authorities and other Persons that
under the applicable law, must be obtained by such party before such
transaction.
6.02 Without prejudice to the provisions of Clause 6.01, the obligations of
each party to consummate the transaction provided for by this Agreement
is subject to the following further conditions:
6.02.1 No action challenging the legality of and no action or order
seeking to restrain, prohibit or materially modify, the
transactions provided for in this Agreement shall have been
instituted, which has not been settled or otherwise
terminated; and
6.02.2 No statute, rule, regulation, order, injunction or decree
shall have been enacted, entered, promulgated, or enforced by
any Government Authority which prohibits, restricts or makes
illegal the consummation of any of the transactions
contemplated hereby.
6.03 Without prejudice to the provisions of Clause 6.01 and Clause 6.02
above, the obligations of HPS to consummate the transaction provided
for by this Agreement is subject to the following further conditions:
6.03.1 there shall have occurred no event, condition, practice, or
other matter or occurrence of any event which has had or which
could reasonably be expected to
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have a Material Adverse Effect on the Company and there
shall have been no discovery of any such event, condition,
practice, matter or occurrence; and
6.03.2 no event should have happened which makes the representations
and warranties of the Company contained in this Agreement
untrue in any material respects (regardless of the knowledge
or lack thereof of the Company).
6.04 Without prejudice to the provisions of Clause 6.01 and Clause 6.02, the
obligations of the Company to consummate the transaction provided for
by this Agreement is subject to the further condition that HPS shall
have delivered to the Company the payment for fifty percent (50%) of
the Purchase Price in accordance with the provisions of Clause 2.02
above.
ARTICLE VII
INDEMNIFICATION
7.01 INDEMNIFICATION OF HPS. The Company shall indemnify, defend and hold HPS
and its Affiliates and their respective directors, officers, employees,
and agents (collectively, the "HPS PARTIES") harmless from any and all
liabilities, obligations, claims, contingencies, damages, recoveries,
deficiencies, costs, and expenses, including interest, penalties and all
court costs and reasonable attorneys' fees (collectively, "CLAIMS"),
that the HPS Parties may suffer or incur, which arise from or relate to
(i) any representation or warranty of the Company contained in this
Agreement which is untrue or inaccurate in any respect; (ii) any breach
or failure by the Company to perform any of the covenants, or agreements
made by the Company in this Agreement;
7.02 INDEMNIFICATION OF THE COMPANY. HPS shall indemnify, defend and hold the
Company and its Affiliates and their respective directors, officers,
employees and agents (collectively the "COMPANY PARTIES") harmless from
all Claims that the Company Parties may suffer or incur, which arise
from or relate to (i) any representation or warranty of HPS contained in
this Agreement which is untrue or inaccurate in any respect; (ii) any
breach or failure by HPS to perform any of the covenants, or agreements
made by HPS in this Agreement;
7.03 SURVIVAL. All representations and warranties made in or pursuant to this
Agreement will survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby. All statements
contained in any Schedule or Exhibit delivered in connection with this
Agreement or the transactions contemplated by this Agreement will
constitute representations and warranties under this Agreement. Each
party agrees that the other party to this Agreement will be under no
duty, express or implied, to make any investigation of any
representation or warranty made by a party to the Agreement, and that no
failure to so investigate will be considered negligent or unreasonable.
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7.04 RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The right available
to a party for indemnification, receipt of damages, or other remedy
based on the representations, warranties, covenants, obligations and
agreements of the other party contained in this Agreement shall not be
affected by any investigation conducted with respect to or any
knowledge acquired (or capable of being acquired) at any time, by such
party with respect to the accuracy or inaccuracy of or compliance or
non compliance with any such representation, warranty, covenant,
obligation or agreement.
7.05 RIGHT OF SUBROGATION. At any time that the indemnifying party is
required to make payment to an indemnified party pursuant to this
Article VII, upon such payment to the indemnified party, the
indemnifying party shall be subrogated to the rights of the indemnified
party in being permitted to enforce such claim and bring an action
against, any third party responsible for, in whole or in part, the
liability for which the indemnifying party has made payment.
7.06 RIGHT TO SET OFF PAYMENTS. If the representations and warranties or any
covenants, agreements or obligations set forth in this Agreement and
the Master Services Agreement are breached, and there is a resulting
monetary loss of any nature to either party as a result of a breach of
the terms of this Agreement by the other party; or a failure by other
party to fully indemnify such party pursuant to the terms of this
Agreement from and against any payments due to the other party under
this Agreement or the Master Services Agreement, such party shall have
the right to set off from and against any payments due to the other
party under this Agreement or the Master Services Agreement.
ARTICLE VIII
TERMINATION
8.01 During the term of this Agreement, this Agreement may be terminated, as
follows:
8.01.1 by written consent of the Company and HPS;
8.01.2 If either party materially breaches any term of this Agreement
or the Master Services Agreement and does not cure such breach
within thirty days after receipt of notice specifying the
breach, the other party may terminate this Agreement upon
thirty days' further written notice.
8.02 TERM OF THIS AGREEMENT. Subject to Clause 8.01, this Agreement shall
come into effect on the Effective Date and shall be effective till 31st
December 2003.
8.03 EFFECT OF TERMINATION. Where either party terminates this Agreement in
terms of sub-clause 8.01.2, such termination shall be without prejudice
to any rights available to such party in law or under this Agreement.
Further such termination shall not constitute a waiver by such party
terminating this Agreement, of any of its rights that by its terms
shall survive termination pursuant to this Agreement. None of the
parties hereto shall have any liability in the event of a termination
of this Agreement, unless such termination results from any violation
by a party of any of its obligations under this Agreement prior to such
termination.
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Termination of this Agreement in any manner shall not affect any rights
that may have accrued to either party prior to such termination.
8.04 SURVIVAL AFTER TERMINATION. Notwithstanding any provision in this
Agreement to the contrary, the provisions of Article VII
(Indemnification) Article IX (Covenants of Non-Competition,
Non-Solicitation and Non-Disclosure), Clause 10.01 (Notices), Clause
10.02 (Transaction Costs, Attorney Fees and other Costs), Clause 10.06
(Entire Agreement), Clause 10.07 (Governing Law and Judicial
Arbitration) and this Clause 8.04 shall survive termination of this
Agreement pursuant to Clause 8.01 or expiry of term pursuant to Clause
8.02.
ARTICLE IX
COVENANTS OF NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE
The Parties enter into these covenants of Non-Competition, Non- Solicitation and
Non-Disclosure and intending to be legally bound, hereby agree to the full
extent permitted by law as follows.
9.01 TERM OF COVENANTS. It is the intent, understanding and agreement of the
parties to this Agreement that the covenants of non-competition as
specified in Clause 9.02 below are to run for a period of six months
after termination of this Agreement (the "TERM"). All provisions of
whatever nature contained in these covenants shall be binding upon
either party during such applicable periods and shall inure to the
benefit of other.
9.02 COVENANT OF NON-COMPETITION. HPS Group agrees that it will not provide
any Software Services to any of the competitors of the Company listed
below:
9.02.1 Scient Corp.
9.02.2 Xxxxxx.xxx
9.02.3 Proxicom, Inc
9.02.4 Sapient Corporation
9.02.5 Viant Corporation
9.02.6 RareMedium Group, Inc.
9.02.7 Razorfish, Inc.
9.02.8 Lante Corporation
Provided that the Company agrees and understands that:
(a) HPS Group or any of its member may provide direct services to
any of the above competitors of the Company for a business
volume up to US$ 1.20 million per annum in aggregate; and
(b) HPS Group or any of its member may do any merger, acquisition
or other similar transactions with any company or person,
which has business from any of the above competitors of the
Company as its existing client(s). HPS would inform the
Company of any such deal in advance and would seek the
Company's consent, such consent not to be unreasonably
withheld.
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9.03 FIRST RIGHT OF REFUSAL. Until the termination of this Agreement, the
Company agrees that, HPS will be the Company's preferred supplier of
Software Services and HPS Group or any member thereof shall have the
first right of refusal to any India Centric Work. However, the Company
will not be obligated to give HPS Group or any member thereof any first
right of refusal regarding work relating to Wireless Solutions, Online
Training and Digital Media and Broadband Services.
9.04 COVENANT OF NON-SOLICITATION. HPS Group shall not during the Term of
this Agreement, either directly or indirectly, solicit or cause to be
solicited the Clients of the Company, with whom the Company has done
any business in the last 6 months, and as notified in writing by the
Company from time to time. In case of breach by HPS Group of the
provisions of this Clause 9.04, HPS shall be liable to pay to the
Company as penalty twenty percent of the revenue generated by HPS from
such solicitation. However, the restrictions contained herein shall not
be applicable to (a) provision of any services other than Software
Services; and (b) the Prospects.
9.05 TRADE SECRETS. During the course of this association, the Parties
("RECIPIENT") had and shall have access to a wide variety of
confidential information of other Party ("DISCLOSING PARTY") and their
accounts and methods of operation etc. It is acknowledged and agreed by
the Parties that all such information as described above is
confidential information and property of the Parties and constitutes
trade secrets of the Parties and all such items shall be referred to in
this Agreement as "TRADE SECRETS". The parties agree that the
misappropriation, unauthorized use or disclosure of Trade Secrets by
them or any of their Affiliates would cause irreparable harm to the
Disclosing Party. The parties agree to and to cause their Affiliates to
exercise the same degree of care to avoid and prevent disclosure of the
Trade Secrets as they would use to prevent disclosure of their own
proprietary information, and to exercise in no event less than a
reasonable degree of care. The rights of the Disclosing Party under
this Agreement to protection of its Trade Secrets are in addition to
the rights of the Disclosing Party under common or statutory law.
The Recipient agrees that it will not and agrees to cause its
Affiliates not to disclose to others or use for any purpose other than
performing the obligations under this Agreement any of the Trade
Secrets for the term of this Agreement plus one (1) year. The Recipient
agrees not to and will cause its Affiliates not to disclose to others
or use for any purpose other than to perform its obligations under this
Agreement any of the Trade Secrets at any time during or after the term
of this Agreement or until such Trade Secrets lose their status as such
by becoming generally available to the public by independent discovery,
development, or publication.
The Recipient may disclose Trade Secrets pursuant to a judicial or
governmental order, but any such disclosure will be made only to the
extent so ordered, and provided that the Recipient: (a) timely notifies
the Disclosing Party so that it may intervene in response to such
order, or (b) if timely notice cannot be given, then seeks to obtain a
protective order from the court or government for such information.
The Recipient will and will cause its Affiliates to promptly cease
using and shall return or destroy (and certify destruction of) all
Trade Secrets along with all copies thereof in its
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possession including copies stored in any computer memory or storage
medium upon the expiration or termination of this Agreement, whichever
first occurs.
9.07 REMEDIES.
9.07.1 The parties acknowledge and agree that given the irreparable
harm which could result to from violation by any Party of any
of the provisions of these covenants, damages would be an
inadequate remedy for any such breach, and that in addition to
any other rights or remedies which a Party may have, it may
enforce the provisions of these covenants and may obtain
relief for any breach or threatened breach of these covenants,
if necessary, by use of a temporary restraining order, or a
preliminary injunction or specific performance.
9.07.2 For purposes of this Agreement, the Parties agree that any of
the following shall be deemed per se to constitute irreparable
injury to the other party for which the other Party shall be
entitled to injunctive relief: (i) use, misuse or disclosure
of Trade Secrets; (ii) solicitation of employees; or (iii)
breach of any of the provisions related to a covenant not to
compete or disclose Trade Secrets; or (iv) the Company's
failure to comply with the provision of Clauses 2.06 and 2.09.
ARTICLE X
MISCELLANEOUS
10.01 NOTICES. All notices that are required or may be given pursuant to this
Agreement must be in writing and delivered personally, by a recognized
courier service, by a recognized overnight delivery service, by
tele-fax or by registered or certified mail, postage prepaid, to the
parties at the following addresses (or to the attention of such other
person or such other address as any party may provide to the other
parties by notice in accordance with this Clause 10.01):
TO HPS:
Vice President
HPS America, Inc.
0000, Xxxxx Xxxxxxx
Xxxxx 0000, Xxxxxxxxxx,
XX- 00000
With a copy to:
Company Secretary and Chief Legal Officer
HCL Xxxxx Systems Limited,
X-00-00, Xxxxxx-0, Xxxxx - 000 000
Xxxxx
Phone: x00-000-0000 670 to 674
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Fax: x00-000-0000 529
TO THE COMPANY:
CEO
IXL Enterprises, Inc.
0000 Xxxxxxxxx Xx XX
Xxxxxxx, XX 00000
With a copy to:
General Counsel, Legal Department
0000 Xxxxxxxxx Xx XX
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Any such notice or other communication will be deemed to have been
given and received (whether actually received or not) on the day it is
personally delivered or delivered by courier or overnight delivery
service or if sent by tele-fax or, mailed, when actually received.
10.02 TRANSACTION COSTS, ATTORNEYS' FEES AND OTHER COSTS. Each party will
bear and pay all attorneys', accountants', and other fees, costs and
expenses incurred by such party in connection with the preparation,
negotiation, execution, and performance of this Agreement or any of the
transactions contemplated by this Agreement. If attorneys' fees or
other costs are incurred to secure performance of any obligations under
this Agreement, or to establish damages for the breach thereof or to
obtain any other appropriate relief, whether by way of prosecution or
defense, the prevailing party will be entitled to recover reasonable
attorneys' fees and costs incurred in connection therewith.
10.03 FURTHER ASSURANCES. Each party agrees to execute any and all documents
and to perform such other acts as may be necessary or expedient to
further the purposes of this Agreement and the transactions
contemplated by this Agreement.
10.04 COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties to this Agreement, all
of which together will constitute one and the same instrument.
10.05 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement will be assigned or delegated by
either party without the prior written consent of the other party.
10.06 ENTIRE AGREEMENT. This Agreement and the related documents contained as
Exhibits, Appendixes and Schedules to this Agreement or expressly
contemplated by this Agreement contain the entire understanding of the
parties relating to the subject matter hereof and supersede all prior
written or oral and all contemporaneous oral agreements and
understandings relating to the subject matter hereof, including without
limitation the term sheet dated December 12, 2000 signed by the
parties. This Agreement cannot be
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[IXL LOGO] [HPS LOGO]
modified or amended except in writing signed by the party against whom
enforcement is sought. The Appendixes and Schedules to this Agreement
are hereby incorporated by reference into and made a part of this
Agreement for all purposes.
10.07 GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by the
laws of Delaware without giving effect to any rules of conflicts of
law.
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, shall be finally
resolved under the rules of American Arbitration Association by one or
more Arbitrators appointed in accordance with the said rules. Venue of
Arbitration shall be New York. Notwithstanding the foregoing, the
parties shall have the right to bring judicial proceedings to obtain
injunctive relief at any time during the pendency of arbitration
proceedings. Judgement upon the award rendered may be entered in any
Court of competent jurisdiction and shall be binding on both the
parties.
10.08 SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree that the
failure of any party to perform its agreements and covenants under this
Agreement will cause irreparable injury to the other parties for which
damages, even if available, will not be an adequate remedy.
Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of
such party's obligations and to the granting by any court of the remedy
of specific performance of its obligations under this Agreement. This
right to specific performance is in addition to and not in lieu of, the
requirement that the parties arbitrate disputes as set forth in
Clause 10.07 above.
10.09 SEVERABILITY The unenforceability of any part or provision of this
Agreement (or any modification thereof to conform with Applicable Laws)
shall not render unenforceable or impair the remainder of this
Agreement. Accordingly, if any provisions of this Agreement shall be
determined to be invalid or unenforceable, either in whole or in part,
this Agreement shall stand amended to delete or modify, as necessary,
the offending provisions or offending portions of said provisions and
to alter the balance of this Agreement in order to render the same
valid and enforceable.
10.10 PUBLICITY. HPS and the Company will cooperate with each other in the
development and distribution of all news releases and other public
disclosures relating to the transactions contemplated by this
Agreement. Neither HPS, on the one hand, nor the Company on the other
hand, will issue or make, or allow to have issued or made, any press
release or public announcement concerning the transactions contemplated
by this Agreement without the advance approval of the form and
substance thereof by the other parties, unless otherwise required by
applicable legal or stock exchange requirements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
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For IXL ENTERPRISES, INC For HPS AMERICA, INC,
By: /s/ Xxxxx Xxxxx By: /s/ L. Xxxxx Xxxxx
-------------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: L. Xxxxx Xxxxx
Title: Chief Operating Officer Title: Director
Witnesses:
1. /s/ Xxxxxxxx X. Xxxxxx
2. /s/ X. Xxxxxxx Afsis
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[IXL LOGO] [HPS LOGO]
SCHEDULE 1
THE PROSPECTS
(REFER CLAUSES 1.01.9.3 AND 1.01.32)
1. Deutsche Bank
2. UBS AG
3. Xxxxxxx Xxxxx
4. X X Xxxxxx
5. American International Group
6. Xxxxxx
7. Astrazeneca
8. MBNA
9. Mimecom
10. Cendant Group
11. Sun Microsystems
12. Hewlett Packard
13. Silicon Graphics
14. KnowledgePoint
15. Sabre
16. MobileID
17. American Express
18. Linguateq
19. EIS (now, Portal Connect)
20. AIRCOM International
21. Xxxxx IT Plc.
22. Vodafone
23. TIBCO
24. Xx. Xxxxxx
25. FTI
26. Interdigital
27. Intellicue
xxxx
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SCHEDULE 2
LITIGATION DETAILS
(REFER CLAUSE 3.09)
Several class action suits, together with a suit by Redwing Ltd., which sold its
wireless business to the Company in April 2000, have been filed against the
Company alleging that the Company has violated several provisions of the U.S.
securities laws. These cases are expected to be consolidated into a single
claim. The Company believes these cases are without merit and that the suits
will not result in any Material Adverse Effect and it has adequate liability
insurance coverage, though there is no assurance that the Company will
ultimately prevail in these matters. Further the Company agrees to inform HPS,
as soon as these cases are decided by the Courts concerned and the effect of any
adverse decisions thereof on the Company.
xxxx
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SCHEDULE 3
CLIENT LIST
(REFER CLAUSE 3.10)
1. XxxxxXxxx.xxx
2. Cemtec
3. Xxxxxxxxxxx
4. Dupont
5. BellSouth
6. Mayo Clinic
7. Lumenous
8. First Union/Adhesion
9. Great American
10. General Electric
11. Deutsche Bank/B Trust
12. American International Group
13. Chase
14. Lloyds TSB
15. Fleet
16. MSDW
17. Xxxxxxx Xxxxx
18. Reader's Digest
19. Hallmark
20. Gemini Medien
21. BMG
22. Xxxxxxx Xxxxxx/Kraft
23. Virgin Atlantic
24. Budget Rent-a-Car
25. FedEx
26. Delta
27. British Airways
xxxx
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SCHEDULE 4
MASTER SERVICES AGREEMENT
This Master Services Agreement ("this Agreement") is entered into this 28th day
of December 2000 by and between
HPS AMERICA, INC. of 0000, Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxxx XX 00000
("HPSA") for and on behalf of HPS Group (collectively known as "HPS")
and
iXL ENTERPRISES, INC. of 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, XX, 00000 ("iXL
ENTERPRISES") for and on behalf of iXL Group ("iXL")
WHEREAS iXL Enterprises and HPS have entered into a certain Stock Purchase
Agreement as of the date hereof; and
WHEREAS iXL and HPS have agreed that HPS Group will provide certain Information
Technology services for iXL Group and/or its clients as defined in Task Orders
to be entered into pursuant to this Agreement on the terms and conditions of
this Agreement.
I. DEFINITIONS
1.1 Except for the terms defined somewhere else in this Agreement which will
prevail, the following terms when used in this Agreement (including the
Recitals) shall have the following meaning unless the context otherwise
requires:
"ACCEPTANCE" the occurrence of the events as set out in
Article IX in relation to the Software or
any relevant part thereof;
"ACCEPTANCE CRITERIA" The criteria for Acceptance of the Software
set out in Clause 9.3;
"ACCEPTANCE DATE" the date stipulated for Acceptance by iXL in
the relevant Task Order or such later date
as may be agreed between iXL and HPS as a
result of Change Management Procedure;
"BUSINESS DAY" Means Monday to Friday both inclusive but
excluding all bank and other public holidays
at the place of work;
"CHANGE MANAGEMENT Means the procedures for change control/
PROCEDURE" management as set out in Appendix 2;
"DELIVERY" Means the date on which the Software is
provided to iXL by HPS as detailed in the
Task Order;
"HPS ENTITY" Means any member of HPS Group;
[iXL LOGO] [HPS LOGO]
SCHEDULE 4
"HPS GROUP" Means HCL Xxxxx Systems NV, The Netherlands,
HCL Xxxxx Systems Limited, India and all of
their subsidiaries, now existing or
hereinafter formed or acquired;
"HPS PROJECT TEAM" Means any and all those persons listed in
the relevant Task Order and as may be
amended from time to time by mutual
agreement in writing;
"INTELLECTUAL PROPERTY Means all rights including future rights in
RIGHTS" inventions patents, designs, copyrights,
trade marks, service marks, databases and
typography rights (whether or not any of
those is registered and including
applications for registrations of the
foregoing) together with all trade secrets,
know-how and all rights or forms of
protection of a similar nature or having
equivalent or similar effect to any of those
which may subsist anywhere in the world;
"iXL ENTITY" Means any member of iXL Group;
"iXL GROUP" Means iXL Enterprises and all of its
subsidiaries, now existing or hereinafter
formed or acquired;
"ORIGINATING Means the items of software, hardware and
SOFTWARE" other resources provided by iXL as part of
any Project under a Task Order;
"PROJECT" Means all items of work pertaining to the
project as described in any Task Order;
"PRE-EXISTING Means all Intellectual Property Rights which
SOFTWARE" are owned, invented, developed or obtained
by either party independent of any Services
under this Agreement;
"SIGN OFF DATE" Means the date on which Software is accepted
by iXL or is deemed to have been accepted;
"SOFTWARE" Means the software developed by HPS for iXL
as detailed in the relevant Task Order;
"STOCK PURCHASE AGREEMENT" Means the certain Stock Purchase Agreement
between iXL Enterprises, Inc. and HPS dated
December 28, 2000;
"TIMESCALES" Means dates or days specified in the Task
Order for completion of the relevant task;
"TASK ORDER(S)" Means the task order(s) signed by the
parties hereto from time to time pursuant to
this Agreement;
"WARRANTY PERIOD" Means a period of ninety days from the Sign
Off Date, except as otherwise agreed to in
the relevant task order.
"WORK RESULTS" Means any inventions, methods, techniques,
improvements, software designs, computer
programs, strategies, data and other
original works of authorship found or
created while providing Services under any
Task Order.
1.2 In this Agreement, unless the context otherwise requires:
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SCHEDULE 4
1.2.1 references to parties, schedules, clauses, paragraphs or
appendices are references to parties, schedules, clauses,
paragraphs or appendices of this Agreement;
1.2.2 words denoting the singular number only shall include the
plural number also and vice versa;
1.2.3 references to the masculine include the feminine and the
neuter;
1.2.4 words denoting persons only shall include corporations,
partnerships and unincorporated associations;
1.2.5 references to any party shall, where relevant, be deemed to be
references to or to include, as appropriate, their respective
successors or permitted assigns;
1.2.6 references to "HPS" shall mean HPS America, Inc. or any other
HPS Entity, as the context may require;
1.2.7 references to "iXL" shall mean iXL Enterprises or any other
iXL Entity, as the context may require;
1.2.8 headings have been included for convenience only and shall not
be used in construing any provision herein;
1.2.9 references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or
extended from time to time.
II. SCOPE OF SERVICES/WORK
Subject to the provisions of this Agreement, HPS shall perform and/or provide to
iXL such work or services (the "SERVICES") as may be described in the Task
Orders which iXL and HPS may execute from time to time. The Services may be
performed by HPS by engaging its employees, secondees, contractors, affiliates
(collectively the "HPS EMPLOYEES"). The Task Orders shall be executed by
concerned HPS Entity(ies) which render(s) the Services.
The Task Orders signed by the parties hereto shall form part of this Agreement
and shall be governed by the terms of this Agreement. Appendix 3 is a model Task
Order under this Agreement.
III. TERM
This Agreement shall come into effect on the 1st day of January 2001 ("EFFECTIVE
DATE") and shall remain in force, for a period of three years from the Effective
Date, subject to earlier termination in accordance with this Agreement.
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SCHEDULE 4
IV. PROJECT ADMINISTRATION
4.1 PROJECT MANAGERS. Each party shall designate one of its employees or
authorized representatives to be the project manager (the "PROJECT
MANAGER") for each of the Task Orders. Each party shall authorize its
Project Manager to act on behalf of that party on all matters in
relation to the relevant Task Order. Each party shall notify the other
in writing and in advance of any replacement of a Project Manager.
4.2 CO-ORDINATION. The Project Managers for each Task Order shall
converse/meet as often as required to review the status of the Task
Order.
V. COMPENSATION AND EXPENSES
5.1 FOR FIXED PRICE PROJECTS. For a fixed price project under the terms of
this Agreement, iXL shall pay to HPS the amounts specified in the Task
Order as full payment for the Services. Such amount shall be paid
solely in accordance with the billing schedule and payment terms set
forth in the respective Task Order, including successful completion of
the Services or milestones, if any, and satisfaction of any completion
criteria set forth in the respective Task Order.
5.2 FOR T&M PROJECTS.
5.2.1 For a Time & Material project, the fees to be paid by iXL to
HPS in consideration for the services rendered pursuant to
this Agreement and the Task Orders are based on (1) the rates
set out in Appendix 1 hereto (as the same may be amended from
time to time), unless rates are set out in a Task Order, in
which case the rates set out in the Task Order shall prevail,
and (2) days/ hours actually worked by the relevant HPS
Employees. Subject to the foregoing and save to the extent
expressly stated otherwise in any Task Order, these payments
constitute full compensation for the services rendered
pursuant to this Agreement and the Task Orders to iXL,
exclusive of all taxes. All social expense, such as insurance,
old age and survivors' benefits insurance, disability
insurance, unemployment insurance, child subsidy, pension plan
etc., for the HPS Employees shall solely and exclusively be
borne by HPS.
5.2.2 Billing will occur at the rates set forth in Appendix 1 or the
Task Order, as applicable for all Business Days worked. Actual
hours worked less than eight hours on any day will be billed
pro-rata. Any hour worked beyond forty hours and up to sixty
hours per week will be billed as overtime at the normal rate
as defined in any Task Order. Any hour worked beyond 60 hours
per week will be billed at one and half times the normal rate.
All overtime to be billed must be approved in advance by the
iXL Project Manager.
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5.2.3 Invoices will be submitted identifying the personnel and their
job classifications, the actual number of days/hours worked
and the actual agreed expenses associated with the project
work provided. HPS shall ensure that the HPS Employees shall
turn in such time sheets to the iXL Project Manager under each
Task Order, as needed.
5.2.4 Should there be absences of HPS Employees due to military
service, illness, holiday, training courses, etc., no money is
owed by iXL to HPS or to the HPS Employee, respectively.
5.3 ADVANCE PAYMENTS. At HPS' request, iXL will pay an advance payment of
such amounts on such dates as agreed upon between the parties and as
provided for in each Task Order. Such advances will be netted against
the payments to be made by iXL to HPS in any subsequent interval, or as
mutually agreed upon and provided for in the Task Order until such time
as the advance payment has been repaid.
5.4 COMMUNICATION /HARDWARE & SOFTWARE EXPENSES. iXL shall pay in advance
to HPS all capital and revenue expenses pertaining to setting up of
communication links between such places as may be mutually agreed upon
and provided for in each Task Order. iXL shall also pay in advance to
HPS all expenses pertaining to any specialized software, hardware and
tool costs as may be mutually agreed upon in writing and provided for
in Task Order. All such expenses will be billed at lower of commercial
rates or actual costs.
5.5 OUT-OF-POCKET EXPENSES. iXL shall reimburse HPS for reasonable
travel-related, training and other out-of-pocket expenses in connection
with any Task Order and to the extent provided therein, as agreed
between the parties. All such expenses above US$ 25 per item incurred
will be supported by appropriate receipts.
5.6 BILLING. Unless otherwise stated in a Task Order, HPS shall invoice iXL
once in every fortnight for the project work performed under Task
Orders in the previous fortnight. All invoices submitted by HPS shall
be paid by iXL within 30 days of receipt, provided that the amounts
invoiced are then due and payable. Late payments shall accrue interest
from the date due at the lesser of the highest rate permitted by law
and one and one-half percent per month.
It will be in order for the HPS Entity(ies) rendering Services to
directly invoice concerned iXL Entity(ies) and for such iXL Entity(ies)
to pay the relevant HPS Entity(ies) directly.
5.7 TAXES. iXL shall pay all sales or user taxes, including withholding
taxes, if any, imposed by any taxing authority and required to be paid
by HPS or iXL (except taxes on HPS' income) as a result of the services
provided to iXL under this Agreement. iXL shall not be responsible for
any taxes that relate to HPS Employees. If a claim is made against HPS
for any taxes that are to be paid by iXL in accordance with this Clause
5.7, HPS shall promptly notify iXL in writing and iXL shall pay any
such taxes and provide HPS
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evidence of payment of such taxes, within 15 days of being notified to
do so by HPS, or within the time frame required by such notice,
whichever is later.
5.8 NO HPS EMPLOYEE CLAIMS. The payment due by iXL to HPS is solely owed to
HPS. The HPS Employees have no direct claims against iXL arising out of
their project work, whether for expenses or for any other reason.
VI. TERMINATION
6.1 NON-PAYMENT. If iXL defaults in the payment of any amount due under any
Task Order and does not cure the default within ten days after
receiving written notice of such default, HPS may terminate the
particular Task Order and/ or this Agreement (and thereby all Task
Orders) immediately by written notice to iXL.
6.2 BREACH. If either party materially breaches any term of this Agreement
or a Task Order which results in a subsequent breach of a Task Order
(other than by non-payment) and does not cure the breach within ten
days after receipt of notice specifying the breach, the other party may
terminate the Task Order and/ or this Agreement upon thirty days'
further written notice.
6.3 TERMINATION OF AGREEMENT. All Task Orders shall terminate immediately
upon termination of this Agreement.
6.4 TERMINATION OF STOCK PURCHASE AGREEMENT. Upon termination of Stock
Purchase Agreement for any reason, this Agreement shall terminate
immediately.
6.5 CONSEQUENCE OF TERMINATION. In the event of termination of this
Agreement, for whatsoever reason, HPS agrees to return to iXL all
written or descriptive matter, including but not limited to drawings,
blueprints, descriptions, drafts, Work Results or other papers or
documents which may contain any confidential information on "AS IS and
WHERE IS" basis, and iXL agrees to pay HPS for the work done up to the
date of termination.
VII. CONFIDENTIALITY
7.1 All written, digital and oral information communicated by one party to
another shall be held in strict confidence by both parties and be used
only for purposes of this Agreement. No such information, including the
provisions of this Agreement, shall be disclosed by the recipient
without the prior written consent of the other party, except as
required by law. If either party is required to disclose any
confidential information of the other party, the party so required
shall notify the other party immediately and shall co-operate in
seeking a reasonable protective order.
7.2 This Article VII shall not apply to information which is (i) in the
public domain, (ii) already known to the recipient and the recipient
can show that it was in possession of such
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information prior to receipt of such information from the disclosing
party, (iii) developed independently by the receiving party without the
benefit of any confidential information of the disclosing party, or
(iv) received from a third party without similar restriction and
without breach of this Agreement or a similar agreement.
VIII. INTELLECTUAL PROPERTY RIGHTS
8.1 Both parties agree and acknowledge that performance of this Agreement,
including the Task Orders, may result in the discovery, creation or
development of Work Results as well as usage of any Pre-existing
Software of either party. HPS agrees (a) to deliver to iXL the Work
Results promptly upon the creation of the same and (b) return
Pre-existing Software of iXL immediately upon completion of the work
under any Task Order. Unless otherwise agreed upon in a Task Order, iXL
shall not get any rights in the Pre-existing Software of HPS. Both
parties will agree upon at the time of signature of a task order the
rights which iXL has to get in any Pre-existing Software of HPS.
8.2 Unless otherwise agreed upon in a Task Order, HPS agrees and
acknowledges that all Intellectual Property Rights, title and interests
in and to the Work Results shall fully vest in iXL on the creation of
the same. To this end, HPS fully and effectively assigns and transfers,
and will ensure that each HPS Employee will fully and effectively
assign and transfer, to iXL all rights, title and interests in and to
the Work Results. In particular but without prejudice to the generality
of the foregoing, all copyright and patent rights in and to the Work
Results including but not limited to the right of transfer, sale,
modification, sub-leasing and licensing of such Work Results to third
parties shall vest in, and be assigned and transferred to iXL.
8.3 In the event that the Services or any part thereof are held to
constitute an infringement of any rights of third party(ies), HPS shall
at its expense and on receipt of written request from iXL either:
8.3.1 procure the right to continue providing the Services or
infringing part thereof within a reasonable time; or
8.3.2 modify the provision of the Services or infringing part
thereof so that they are non-infringing and satisfy the
specifications of the relevant Task Order.
8.4 The Work Results and Software and any and all enhancements or
modifications to the Work Results and Software created or developed by
HPS pursuant to this Agreement will be deemed "Works Made for Hire", as
that phrase is defined in Section 101 of the United States Copyright
Act, 17 U.S.C. ss.101, and used in 17 U.S.C. ss.201, on behalf of iXL
and iXL will own all Intellectual Property Rights in such Work Results
and Software
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as well as in enhancements and modifications thereto. To the extent
that the Work Results or Software or any enhancements and/or
modifications thereto are not deemed to be a "work made for hire," HPS
hereby assigns and agrees to assign to iXL all of its respective
rights, title and interest in the Work Results and Software and any and
all such enhancements and modifications thereto. HPS hereby waives any
so-called "moral rights" it may possess in and to the Work Results and
Software or the enhancements and modifications thereto.
8.5 HPS hereby undertakes to fully indemnify and keep fully indemnified iXL
against any liability for loss, claims, demands, expenses and
reasonable legal fees directly incurred in this connection arising out
of any claim that the Work Results or any part thereof constitute an
infringement or alleged infringement of the Intellectual Property
Rights of a third party. At HPS' request, iXL shall grant sole conduct
of any proceedings or negotiations relating to any action to which this
indemnity applies to HPS provided that no action is taken without first
obtaining prior consent of iXL, such consent not to be unreasonably
withheld, and iXL shall provide, at HPS' sole cost, such assistance as
HPS reasonably requests.
8.6 iXL hereby undertakes to indemnify and keep indemnified HPS against any
liability for any actions brought by any third party arising out of a
claim that the Originating Software (not including hardware produced by
a third party) or any part thereof constitutes an infringement or
alleged infringement of the Intellectual Property Rights of a third
party. At iXL's request, HPS shall grant sole conduct of any
proceedings or negotiations relating to any action to which this
indemnity applies to iXL, and HPS shall provide, at iXL's sole cost,
such assistance as iXL reasonably requests.
IX. ACCEPTANCE TESTS
The provisions of this Article IX shall apply only to those Task Orders, where
HPS has the responsibility for the whole project.
9.1 An acceptance test specification for acceptance of the Software will be
jointly agreed by iXL and HPS and provided for in the Task Order.
9.2 The acceptance test specification will include:
9.2.1 sufficient details of tests to be carried out by iXL to
confirm that the Software will comply with the Acceptance
Criteria;
9.2.2 sufficient detail of the test data to be used in performing
the acceptance tests and who is to produce it;
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9.2.3 details of the facilities which iXL will be required to make
available for the running of the Acceptance Tests;
9.2.4 details of the number of employees estimated to be required to
be assigned by iXL and/or HPS during any acceptance tests or
after acceptance tests for the checking of results of
acceptance tests;
9.2.5 where possible, estimates of the anticipated length of time to
run specific tests (if any), whether tests will take place
during iXL working hours, evenings or at weekends and who
shall be primarily responsible for such tests; and
9.2.6 so far as possible, an outline timetable for acceptance tests.
9.3 The criteria for acceptance at the end of the acceptance tests shall be
compliance with the functional specification, any other specifications
relating to the Software produced under this Agreement and any other
software with which it is to interface, all as defined in the
applicable Task Order, and successful completion of the acceptance
tests in all respects in accordance with the acceptance test
specification.
9.4 Any defects in the Software notified to HPS in writing by iXL during
the running of any acceptance tests shall be rectified by HPS forthwith
free of charge.
9.5 If the Software or any part of the Software fails to pass a part of the
applicable acceptance test(s), iXL may require and/or HPS shall be
entitled to re-submit the Software or the relevant part thereof to the
relevant acceptance test(s) as soon as possible and in any event within
ten (10) Business Days and shall be given such reasonable time,
facilities and access to the Software and other resources
(notwithstanding that it may have been put into operational use) as HPS
reasonably requires to rectify such failure and to repeat the relevant
acceptance test(s) applying to such part and the provisions of this
clause shall apply mutatis mutandis to such repeated acceptance
test(s). If the Software is rejected a second time, iXL can request HPS
to repeat any relevant acceptance tests that iXL considers necessary
until the Software meets the Acceptance Criteria.
9.6 The Software shall be deemed to be accepted by iXL 20 Business Days
after delivery to iXL, if iXL does not communicate to HPS any defects
in the Software, or the provisions of the clauses 9.1 to 9.5 inclusive
have not been met as a direct result of iXL failing to meet its
obligations thereunder.
9.7 If under the terms of any Task Order, HPS is required to prepare any
documentation, operation manual etc., the provisions of this Article IX
shall not apply to such documentation, operation manual etc. However,
HPS shall co-operate reasonably with iXL in correcting any mistakes
pointed out by iXL.
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X. WARRANTIES, LIABILITIES AND INDEMNITIES
10.1 SERVICES. HPS warrants that the Services shall be performed by
qualified personnel, competent enough in skills and experience to do
the job, in a manner consistent with good practice followed by a
SEI-CMM Level 5 company. HPS further warrants that it will promptly
remedy any defects in the Software, if any, developed by HPS, of which
iXL notifies HPS within the Warranty Period at no extra cost to iXL.
10.2 EXCLUSIVE REMEDIES. The remedies set forth in the clause 10.1 are iXL's
exclusive remedies for breach of warranty. HPS disclaims all other
warranties, express or implied, including any warranties of
merchantability or fitness for a particular purpose unless expressly
defined otherwise in the Task Order.
10.3 THIRD-PARTY GOODS. All third-party software, hardware and equipment
provided by HPS under any Task Order are provided "As Is".
10.4 LIMITATION OF LIABILITY. Except for violation of Articles VII and VIII,
HPS shall not be liable for any indirect, incidental, consequential or
reliance damages (including lost profits), whether in contract or tort
(including negligence and strict liability) and whether or not such
damages are foreseen. The aggregate liability of HPS, except for
violation of Articles VII and VIII, arising during any month in a
calendar year under any Task Order shall not exceed the amount invoiced
by HPS and paid for by iXL during that calendar year against the
particular Task Order.
10.5 INDEMNIFICATION. HPS and iXL shall each indemnify, defend and hold the
other harmless from all claims, damages, demands, liabilities, costs
and expenses, arising by reason of any claim for personal injury of any
agent, employee, customer, or business visitor of the indemnified or
damage to tangible property in the possession or under the control of
the indemnified, that arises out of any action or inaction by the
indemnifier or its employees or agents; provided, however, that
indemnified gives indemnifier: (a) written notice of any such claims
within five Business Days of knowledge of injury (b) reasonable
assistance in defending the claim; and (c) sole authority to defend or
settle such claim provided if iXL should be the indemnifier, no action
is taken without obtaining prior consent of iXL, such consent not to
be unreasonably withheld.
10.6 SURVIVAL. Any claim arising from or related to this Agreement must be
brought within two years after the cause of action arises.
XI. MISCELLANEOUS
11.1 ENTIRE AGREEMENT. The Stock Purchase Agreement, this Agreement and the
Task Orders issued hereunder constitute the final, entire, and
exclusive agreement between the parties with respect to their subject
matter. In case of any inconsistency between this Agreement and a Task
Order, with the exception of Articles VII, VIII, IX, X and Clauses
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11.8 and 11.9 of this Agreement, the Task Order shall prevail except
that no Task Order may survive termination of this Agreement.
11.2 WAIVER. No change, waiver, or discharge hereof shall be valid unless in
writing and signed by the party against which it is sought to be
enforced. No delay or omission by either party in exercising any right
hereunder shall be construed as a waiver. A waiver by either of the
parties of any provision or breach shall not be a waiver of any other
provision or breach.
11.3 NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and
for two years thereafter, either Party and their affiliates shall not
hire or seek to hire any person employed then or within the preceding
year by the other party and involved directly or indirectly in the
performance of any Task Order, except with prior written consent of the
other party. In case of any violation, such defaulting party will pay
the non defaulting party a minimum of thirty six months of professional
fees lump sum per person so hired.
11.4 RELATIONSHIP OF PARTIES. HPS is acting only as an independent
contractor. Neither party shall act or represent itself, directly or by
implication, as an agent of the other, except as expressly authorized
in a Task Order.
11.5 FORCE MAJEURE. Neither party shall be liable for any failure or delay
in its performance due to circumstances beyond its reasonable control,
provided that it notifies the other party as soon as practicable and
uses its best efforts to resume performance.
11.6 SEVERABILITY. If any provision of this agreement is held to be
unenforceable, the remaining provisions shall be unaffected. Each
provision of this agreement, which provides for a limitation of
liability, disclaimer of warranties, indemnification, or exclusion of
remedies is severable from and independent of any other provision.
11.7 SURVIVAL. Such provisions of this Agreement, which generally can
survive after termination or expiration of any similar Agreement, shall
also survive any termination or expiration of this Agreement,
particularly the provisions of Articles VII, VIII, X and 11.3, 11.8,
11.9 and 11.14.
11.8 GOVERNING LAW. This Agreement shall be governed by the exclusive laws
of Delaware without giving effect to any rules of conflicts of law.
11.9 ARBITRATION. Any dispute arising out of or in connection with this
Agreement, including any question regarding its existence, shall be
finally resolved under the rules of American Arbitration Association by
one or more Arbitrators appointed in accordance with the said rules.
Venue of Arbitration shall be New York. Notwithstanding the foregoing,
the parties shall have the right to bring judicial proceedings to
obtain injunctive relief at any time during the pendency of arbitration
proceedings. Judgement upon the award rendered may be entered in any
Court of competent jurisdiction and shall be binding on both the
parties.
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11.10 AMENDMENTS. All changes and amendments to this Agreement or to any
attachment thereto are valid only if made in writing and signed by both
parties.
11.11 MEDIA RELEASES. Neither party shall identify the other party in any
media releases, public disclosures or marketing material without the
prior consent of the other party, except for (i) any announcement
intended solely for a party's internal distribution, (ii) any listing
of the other party as a reference in confidential proposals, and (iii)
any disclosure required by law.
11.12 ASSIGNMENT. Neither party may or can assign any of its rights and
obligations under this Agreement or any Task Order without the prior
written consent of the other party. HPS may subcontract its
responsibilities under this Agreement to a third party considered by
HPS in good faith to be of equal standing and integrity provided that
material provisions of this Agreement or any task order including inter
alia confidentiality provisions shall be reflected in any agreement
entered into between HPS and such third party pursuant to which the
work to be performed under this Agreement or Task Order is sub
contracted.
11.13 CHANGE MANAGEMENT PROCEDURE. Any change in the scope of work or
approach/ methodology other than as provided in a Task Order or new
work shall be handled through a Change Management Procedure as provided
in Appendix 2.
11.14 NOTICES. All notices that are required or may be given pursuant to this
Agreement must be in writing and delivered personally, by a recognized
courier service, by a recognized overnight delivery service, by
tele-fax or by registered or certified mail, postage prepaid, to the
parties at the following addresses (or to the attention of such other
person or such other address as any party may provide to the other
parties by notice in accordance with this Clause 11.14):
TO HPS:
Vice President
HPS America, Inc.
0000, Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX- 00000
With a copy to:
Company Secretary and Chief Legal Officer
HCL Xxxxx Systems Limited,
A-10-11, Xxxxxx-0, Xxxxx - 000 000, Xxxxx
Phone: x00-000-0000 670 to 674
Fax: x00-000-0000000
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TO THE COMPANY:
CEO
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xx XX, Xxxxxxx, XX 00000
With a copy to:
General Counsel, Legal Department
0000 Xxxxxxxxx Xx XX, Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Any such notice or other communication will be deemed to have been
given and received (whether actually received or not) on the day it is
personally delivered or delivered by courier or overnight delivery
service or if sent by tele-fax or, mailed, when actually received.
In witness whereof, the parties hereto have executed this Agreement as of the
date first above written.
FOR HPS AMERICA, INC. FOR iXL ENTERPRISES, INC.
By: /s/ L. Xxxxx Xxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ---------------------------------
Name: L Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: Director Title: Chief Operating Officer
Witnesses:
1. /s/ Xxxxxxxx X. Xxxxxx
2. /s/ X. Xxxxxxx Afsis
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APPENDIX 2
CHANGE MANAGEMENT PROCEDURE
A. iXL TO REQUEST CHANGES
If, at any time before the Acceptance Date, iXL requests to alter all
or any part of the requirements definition, time-scales or a scope of
work as stated in the Task Order, then iXL shall provide HPS with full
written particulars of such changes ("Change Request").
B. HPS TO EXAMINE CHANGE REQUEST
Within twenty (20) Business Days after having received any Change
Request, HPS shall notify iXL if in its reasonable opinion such Change
Request is feasible and appropriate. If HPS agrees to effect the Change
Request in whole or in part, it shall specify in a written quotation
what changes will be required to the fees, expenses, costs and the Task
Order to give effect to the Change Request and what adjustments will be
required to any parts of the acceptance criteria as outlined in the
Task Order, or the deliverables as defined in the Task Order. Change
Request will be estimated on a basis that is proportionate to the
original quote in respect of time and costs. The impact on onsite
requirements for space and facilities will also be communicated to iXL.
C. IF HPS DISAGREES WITH ANY CHANGE REQUEST
If HPS questions/disagrees with any Change Request of iXL, it shall
give written notice to iXL within a reasonable time agreed after
receipt thereof, giving reasons therefor.
iXL shall within a reasonable time agreed, by notice to HPS with
reasons, confirm/ withdraw (in which case the applicable Task Order
will continue in force unchanged) or vary such Change Request.
D. IF ORIGINAL CHANGE REQUEST INSISTED UPON BY IXL.
If iXL insists on its initial Change Request, the Project as defined in
the Task Order will be completed according to iXL's instructions and
HPS shall not be liable for any defects resulting from such
instructions.
E. CHARGES
HPS shall be entitled to make a reasonable charge for considering any
Change Request and preparing the quotation for the same. HPS shall
without commitment but in good faith advise iXL on the likely cost to
be charged prior to the consideration of such Changes.
XXXX
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APPENDIX 3
SAMPLE TASK ORDER
HCL Xxxxx Systems ______("HPS") and iXL ________, Inc. ("iXL") hereby enter into
this Task Order on the ______ day of _____________ 200_ under the Master
Services Agreement between HPS America, Inc. and iXL Enterprises, Inc. dated as
of the 28th day of December 2000 ("MSA"), on the following terms.
1. EFFECTIVE DATE: _________
2. PROJECT:
3. SCOPE OF WORK
<< complete details of scope of services, deliverables, time lines,
functional specifications, supporting hardware platforms etc. etc.>>
4. PROJECT MANAGERS
For this project, Mr. ___________ shall be the contact person and
Project Manager for iXL.
For this project, Mr. ___________ shall be the contact person and
Project Manager for HPS.
5. ORIGINATING SOFTWARE
<>
6. PRE-EXISTING SOFTWARE
<>
<>
7. ACCEPTANCE
7.1 ACCEPTANCE TEST SPECIFICATIONS
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<< the specification for the acceptance tests which is suitable to
demonstrate that the Software complies with functional
specifications>>;
7.2 ACCEPTANCE DATE
8. BEGINNING AND TERMINATION
The project will start on the Effective Date and is expected to be
completed within ___months. However, this duration is based on the
information provided by iXL so far and HPS' current understanding of
the scope of work and may vary with any changes to the scope or final
deliverables.
9. iXL RESPONSIBILITIES:
9.1 iXL will endeavour to ensure availability of all technical
personnel, subject matter experts and application specialists
for discussions according to mutually agreed schedules between
the parties during the project and provide all information
that may be necessary for the project. Non-availability of any
information may lead to interruption of the work leading to
delays.
9.2 iXL and / or its Client will provide the HPS on-site team
member(s), for the duration of his/ her stay onsite, with the
necessary access and privileges to use the iXL's
infrastructure, computing and communication resources, access
to server, application and other software, independent seating
place, computer time, media and other office facilities.
10. HPS RESPONSIBILITIES:
10.1 HPS will provide a dedicated team for this Project and will
use its offshore methodology with a suitable mix of on-site
and offshore resources depending on the phase of the Project
to execute the Project.
10.2 HPS will not be responsible for any impact due to platform
upgrades made by iXL.
11. PROJECT SPECIFIC TERMS AND CONDITIONS:
11.1 HPS will not participate in activities that do not relate
directly to the project; e.g., identifying redundant code that
is not in use by iXL, writing program documentation, indenting
and code restructuring. HPS associates will be utilized only
for the tasks related to the scope of work defined in this
Task Order. HPS cannot guarantee competence of its staff in
the areas that fall outside the scope of this Task Order.
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11.2 The tasks, steps, techniques and tools that HPS proposes to
use are based on the current level of understanding and
technology levels prevailing in the project domain. The
proposed approach will be validated and may have to be refined
and modified partly or totally for the actual project
requirement in discussion with iXL.
11.3 Any delay/non-performance of work on-site on account of
immigration/visa clearances will be treated as Force Majeure.
12. COMPENSATION
12.1 BASIC RATES: << DEFINE>>
12.2 HARDWARE AND SOFTWARE COST: <>
12.3 EXPENSES REIMBURSEMENTS: <>
12.4 ESTIMATED COST OF PROJECT : <>
13. OTHER PROVISIONS:
The base work location for offshore work will be ______, India and for
onsite work will be _______,
HCL XXXXX SYSTEMS _____ iXL __________, INC.
By : By :
------------------------------- -------------------------
Name: Name:
------------------------------- -----------------------
Title: Title:
------------------------------- -----------------------
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made and entered
into as of this ____day of ____, 2001, by and among iXL Enterprises, Inc., a
Delaware corporation ("iXL"), HPS America, Inc., a Delaware corporation ("HPS");
and __________, a ___________ (the "Escrow Agent").
RECITALS:
WHEREAS, iXL and HPS have executed and delivered a certain Stock
Purchase Agreement dated as of December 28, 2000 (the "Purchase Agreement"),
pursuant to which iXL have agreed to issue to HPS, and HPS has agreed to
purchase from iXL, 1,000,000 shares of iXL's Common Stock (the "Shares") at a
total purchase price of US$ 3,000,000 in consideration of iXL agreeing to commit
to the sub-contract and/or provision of a business worth US$ 65,000,000 to HPS,
as more specifically detailed in the Purchase Agreement; and
WHEREAS, the Purchase Agreement contemplates the execution and delivery
of an Escrow Agreement among the parties hereto, and the deposit by HPS with the
Escrow Agent of the Shares.
NOW, THEREFORE, pursuant to the Purchase Agreement and in consideration
of these premises, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. Appointment of Escrow Agent. HPS and iXL each hereby
irrevocably appoints ________,_______ as Escrow Agent to receive, hold,
administer and deliver the Shares in accordance with this Escrow Agreement, and
the Escrow Agent hereby accepts such appointment, all subject to and upon the
terms and conditions set forth herein
2. Establishment of Escrow. HPS herewith deposits with the Escrow
Agent, and the Escrow Agent hereby acknowledges receipt from HPS of, the Shares.
The Shares shall be held by the Escrow Agent in accordance with the terms and
conditions hereinafter set forth. The Escrow Agent shall dispose of the Shares
in accordance with the express provisions of this Escrow Agreement, and shall
not make, be required to make or be liable in any manner for its failure to
make, any determination under the Purchase Agreement, or any other agreement,
including, without limitation, any determination of whether HPS or iXL have
complied with the terms of the Purchase Agreement or are entitled to delivery of
payment of any or all of the Shares or to any other right or remedy thereunder.
3. Release of Shares. The Escrow Agent shall hold the Shares
until it delivers the Shares as provided in this Section 3, as follows:
(a) If the Escrow Agent receives a written instruction,
signed by both iXL and HPS, stating that the payment of US$ 1,500,000 due on or
before August 31, 2001 under the terms of the Purchase Agreement (the "Payment")
has been made, the Escrow Agent shall promptly deliver the Shares to HPS in
accordance with such instruction.
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(b) If the Escrow Agent receives a written instruction
signed by iXL and HPS, stating that the Payment was not made and directing
delivery of the Shares to iXL, the Escrow Agent shall promptly deliver the
Shares in accordance with such instruction.
(c) For the purposes of Clauses 3(a), 3(b) and 3(d), the
Payment shall be deemed to have been made if iXL fails to fulfill its commitment
of giving "First Six Months Minimum Business Volume" (as the said term is
defined in the Purchase Agreement) and HPS exercising its right of set off under
Clause 7.06 of the Purchase Agreement, instructs iXL to adjust the payment due
to HPS from iXL under Clause 2.09 of the Purchase Agreement against the Payment,
in part or full.
(d) Except as set forth in (a) or (b) above, the Escrow
Agent shall distribute the Shares upon notice from either iXL or HPS only in
accordance with the procedures set forth in this subsection:
(i) Upon written notice from iXL to Escrow
Agent, that the Payment was not made and that iXL is entitled to the Shares as a
result thereof ("iXL's Notice"), Escrow Agent shall, within seven (7) days after
receipt of such notice, give a written notice to HPS intimating the receipt of
iXL's Notice, together with a copy thereof. HPS shall, prior to the expiration
of 15 days from the date of receipt of the notice from Escrow Agent, give notice
to Escrow Agent and iXL of its countervailing claim to the Shares ("HPS's
Rebuttal Notice").
(ii) Upon written notice from HPS to Escrow
Agent, that the Payment was made and that HPS is entitled to the Shares as a
result thereof ("HPS's Notice"), Escrow Agent shall within seven (7) days after
receipt of such notice, give a written notice to iXL intimating the receipt of
HPS's notice, together with a copy thereof. iXL shall, prior to the expiration
of 15 days from the date of receipt of the notice from Escrow Agent give notice
to Escrow Agent and HPS of its countervailing claim to the Shares ("iXL's
Rebuttal Notice").
(iii) After receipt by Escrow Agent of iXL's
Rebuttal Notice or HPS's Rebuttal Notice, Escrow Agent shall not deliver the
Shares until such time as Escrow Agent receives (a) a joint written direction
providing instructions as to the disposition of the Shares or (b) a certified
copy of a court order or judgment which has become final (meaning that the order
of judgment is no longer subject to appeal or review by a court of competent
jurisdiction) with respect to the disposition of iXL's or HPS's claim. Escrow
Agent shall deliver the Shares in accordance with said agreement, order or
judgment.
(iv) Notwithstanding the foregoing, after receipt
by Escrow Agent of iXL's Rebuttal Notice or HPS's Rebuttal Notice, Escrow Agent
may (a) deposit the Shares with a new Escrow Agent agreed to in writing by iXL
and HPS or any court which has assumed jurisdiction of any dispute, or (b)
commence an action in interpleader in any court of competent jurisdiction and
deposit the Shares with such court.
(d) Notwithstanding anything to the contrary in this
Escrow Agreement:
(1) At any time the Escrow Agent may deposit the
Shares with the clerk of any court of competent jurisdiction upon commencement
of an action in the nature of interpleader or in the course of any court
proceedings.
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(2) If at any time the Escrow Agent receives a
final non-appealable order of a court of competent jurisdiction, or written
instruction signed by both iXL and HPS, directing delivery or payment of any
part of the Shares, the Escrow Agent shall comply with such order or
instruction.
(3) Upon any delivery or deposit of the Shares
as provided in this Section 3, the Escrow Agent shall thereupon be released and
discharged from any and all further obligations arising in connection with this
Escrow Agreement.
4. Escrow Agent
(a) The Escrow Agent shall be entitled to reimbursement
for all reasonable fees, expenses, disbursements and advances incurred or made
by it in performance of its duties hereunder (including reasonable fees,
expenses and disbursements of Its counsel). Such reimbursement for fees,
expenses, disbursements and advances shall be paid by HPS, unless such expenses
are incurred as a direct result of iXL failing to fulfill or comply with any of
the terms of this Escrow Agreement or the Purchase Agreement, in which case all
such costs shall be borne by iXL.
(b) The Escrow Agent shall have no liability or
obligation with respect to the Shares except for Escrow Agent's willful
misconduct or gross negligence. Escrow Agent's sole responsibility shall be for
the safekeeping and disbursement of the Shares in accordance with the terms of
this Escrow Agreement. Escrow Agent shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any fact or circumstance
not specifically set forth herein, Escrow Agent may rely upon any instrument,
not only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein, which Escrow Agent
shall in good faith believe to be genuine, to have been signed or presented by
the person or parties purporting to sign the same and to conform to the
provisions of this Escrow Agreement, In no event shall Escrow Agent be liable
for incidental, indirect special, consequential or punitive damages. Escrow
Agent shall not be obligated to take any legal action or commence any proceeding
in connection with the Shares, this Escrow Agreement or the Purchase Agreement,
or to appear in, prosecute or defend any such legal action or proceeding. Escrow
Agent may consult legal counsel selected by it in the event of any dispute or
question as to the construction of any of the provisions hereof or of any other
agreement or of its duties hereunder, or relating to any dispute involving any
party hereto, and shall incur no liability and shall be fully indemnified from
any liability whatsoever in acting in accordance with the opinion or instruction
of such counsel. HPS shall promptly pay, upon demand, the reasonable fees and
expenses of any such counsel, unless such expenses are incurred as a direct
result of iXL failing to fulfill or comply with any of the terms of this Escrow
Agreement or the Purchase Agreement, in which case such costs shall be borne by
iXL.
(c) The Escrow Agent is authorized to comply with orders
issued or process entered by any court with respect to the Shares, without
determination by the Escrow Agent of such court's jurisdiction in the matter,
except for Escrow Agent's willful misconduct or gross negligence. If any portion
of the Shares is at any time attached, garnished or levied upon under any court
order, or in case the payment, assignment, transfer, conveyance or delivery of
any such property shall be stayed or enjoined by any court order, or in case any
order, judgment or decree shall be made or entered by any court affecting such
property or any part thereof, then and in any such event, the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply with any such order,
writ, judgment or decree which it is advised by legal counsel
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selected by it is binding upon it without the need for appeal or other action;
and if the Escrow Agent complies with any such order, writ, judgment or decree,
it shall not be liable to any of the parties hereto or to any other person or
entity by reason of such compliance even though such order, writ, judgment or
decree may be subsequently reversed, modified, annulled, set aside or vacated.
5. Successor Escrow Agent. The Escrow Agent (and any successor
Escrow Agent) may at any time resign as such by delivering notice of its
resignation to HPS and iXL and delivering the Shares to a successor Escrow Agent
jointly designated by HPS and iXL in writing, or if the parties cannot agree on
the successor Escrow Agent within thirty (30) days of the notice, to any court
of competent jurisdiction, whereupon the resigning Escrow Agent shall be
discharged of and from any and all further obligations arising in connection
with this Escrow Agreement. After the resignation of any Escrow Agent, the
provision of the Agreement limiting the liability of the Escrow Agent shall
continue to inure to the benefit of the resigned Escrow Agent with respect to
any action or omission taken or made by it while it was the Escrow Agent under
this Escrow Agreement. The Escrow Agent shall be entitled to its compensation
earned prior to such resignation.
6. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be deemed effective when
delivered by hand, or when telecopied with receipt confirmed, or when mailed by
first class certified or registered mail, return receipt requested, or when
properly deposited for delivery by commercial overnight delivery service,
prepaid, as follows:
TO HPS:
Vice President
HPS America, Inc., 0000, Xxxxx Xxxxxxx
Xxxxx 0000, Xxxxxxxxxx, XX 00000
With a copy to:
Company Secretary and Chief Legal Officer
HCL Xxxxx Systems Limited,
A-10-11, Xxxxxx-0, Xxxxx - 000 000, Xxxxx
Phone: x00-000-0000 670 to 674
Fax: x00-000-0000000
TO THE COMPANY:
CEO
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xx XX, Xxxxxxx, XX 00000
With a copy to:
General Counsel, Legal Department
0000 Xxxxxxxxx Xx XX, Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
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If to the Escrow
Agent:
--------------------------------
--------------------------------
Such notice addresses may be changed upon written notice to the other parties
hereto.
7. Severability. Any provision of this Escrow Agreement which may
be determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. It is expressly understood, however, that the parties hereto
intend each and every provision of this Escrow Agreement to be valid and
enforceable and hereby knowingly waive all rights to object to any provision of
this Escrow Agreement.
8. Assignment, This Escrow Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their respective
successors and assigns, and shall not be enforceable by or inure to the benefit
of any third party. No party may assign any of its rights or obligations under
this Escrow Agreement without the written consent of the other parties, except
to the extent that HPS or iXL may also assign its rights under the Purchase
Agreement as may be provided therein.
9. Amendments. This Escrow Agreement may only be modified or
terminated by a writing signed by the parties hereto, and no waiver hereunder
shall be effective unless in a writing signed by the party to be charged.
10. Counterparts. This Escrow Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument. This Escrow
Agreement may be executed and delivered in counterpart signature pages and
delivered via facsimile transmission, and any such counterpart executed and
delivered via facsimile transmission shall be deemed an original for all intents
and purposes,
11. Governing Law. This Escrow Agreement shall be governed by and
construed under the laws of the State of Delaware, without regard to the
conflict of law principles thereof. It is the intention of the parties hereto
that the situs of the Shares be and it shall be administered in the state in
which the principal office of the Escrow Agent from time to time acting
hereunder is located.
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, shall be finally resolved under
the rules of American Arbitration Association by one or more Arbitrators
appointed in accordance with the said rules. Venue of
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Arbitration shall be New York. Notwithstanding the foregoing, the parries shall
have the right to bring judicial proceedings to obtain injunctive relief at any
time during the pendency of arbitration proceedings, Judgement upon the award
rendered may be entered in any Court of competent jurisdiction and shall be
binding on both the parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Escrow Agreement as of the day and year first above written:
iXL ENTERPRISES, INC.,
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Tax i.d., no.:
HPS AMERICA, INC.,
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Tax i.d. no.:
-----------------------------
AS ESCROW AGENT
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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EXHIBIT 10.11
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Amendment ("Amendment") to the Stock Purchase Agreement dated by and
between HPS America, Inc., and iXL Enterprises, Inc., has been made as of May
28, 2001.
RECITALS
A. The parties have worked in good faith to achieve the objectives of the
Stock Purchase Agreement, but acknowledge the difficult global market
conditions affecting financial performance during 2001.
B. HPS has agreed to extend the time period for iXL to meet the minimum
business volumes set forth in the Stock Purchase Agreement.
C. iXL has agreed to release to HPS 500,000 of the 1,000,000 shares of iXL
common stock purchased by HPS and to extend the date by which HPS has
to make final payment for the remaining shares.
D. iXL has also agreed to pay the salaries and expenses of not less than
two HPS employees working full-time with iXL, and HPS has agreed that
such expenses will be credited against the volume commitments.
NOW, THEREFORE, in consideration of the foregoing, the parties agree to amend
the Stock Purchase Agreement as follows:
1. iXL agrees to release to HPS as fully paid 500,000 of the 1,000,000
shares currently pledged to iXL by HPS in consideration of the unpaid
amount of the Purchase Price of the Shares. The time period for paying
the US$1.5 million balance of the Purchase Price is extended from
August 31, 2001, until March 31, 2002.
2. Section 2.06 of the Stock Purchase Agreement is amended in its entirety
to read as follows:
2.06 BUSINESS TO BE PROVIDED BY THE COMPANY TO THE HPS GROUP. In
consideration of HPS agreeing to subscribe for the Shares in
the capital of the Company, subject to the terms and
conditions hereof, the Company shall, during the Business
Period, subcontract and/or provide Business to HPS as given
below:
2.06.1 In the period from the Effective Date through
December 31, 2001, in the amount of the First Six
Months Minimum Business Volume;
2.06.2 In the period from January 1, 2002, through December
31, 2002, in the amount of the Second Year Minimum
Annual Business Volume;
2.06.3 In the period from January 1, 2003, through December
31, 2003, in the amount of US$25,000,000, and
2.06.4 In the period from January 1, 2004 through June
30,2004, in the aggregate remaining and cumulative
amount of the Minimum Cumulative Business Volume.
For purposes of determining whether the Company has satisfied
its obligations under this Clause 2.06, the following shall be
applicable:
(a) In the event that any Offshore Business offered to
the HPS Group by the Company pursuant to the terms of
this Agreement is refused or any reason by the HPS
Group, the amount of Offshore Business required under
the sub-clauses 2.06.1, 2.06.2, 2.06.3 or 2.06.4, as
the case may be, and the sub-clause 2.06.5 above,
shall be reduced by the Revenue that would have been
generated by such refused Offshore Business as
determined by both the parties in good faith;
(b) In the event that the Revenue generated by the
Business for any specified time period exceeds the
minimum amount of the Revenue required for such time
period, and there have been no shortfalls in the
Revenue in prior time periods, such excess Revenue
shall be applied to the minimum required Revenue for
the next applicable time period(s);
(c) In the event that the Revenue generated by any
Business for any specified time period exceeds the
minimum amount of the Revenue required for such time
period, and there has been a shortfall or shortfalls
in the Revenue in a prior time period or periods, and
as a result of such shortfall or shortfalls, the
Company has made payment to HPS in accordance with
the terms of Clause 2.09, HPS shall refund the amount
which it received in lieu of the minimum required
Revenue for such time period with respect to the
amount of such excess, within thirty (30) days
following the expiration of the time period
concerned.
3. Section 8.02 of the Stock Purchase Agreement is amended in its entirety
to read as follows:
8.02 TERM OF THIS AGREEMENT. Subject to Clause 8.01, this Agreement
shall come into effect on the Effective Date and shall be
effective till 30th June 2004.
4. iXL agrees to pay the salaries and reasonable iXL related travel
expenses for Xxxxxxx Xxxxx and Xxxxxx Xxxxxx, the HPS personnel
seconded to iXL for the purposes of managing the HPS-iXL operation.
Messrs. Joshi and Xxxxxx and
any replacement, shall report to and be directed by iXL senior
management. It is anticipated that additional HPS personnel may be
added in this capacity in the future by mutual agreement of the parties
as required. iXL shall get full credit against the minimum volume
commitments for all salary cost and expenses related to these HPS
personnel, which shall not exceed US$100,000 per person annually.
5. iXL and HPS acknowledge and agree that they will work together in these
difficult market conditions to find and perform work wherever it is
available. The parties acknowledge that while the goal remains to
perform 70% of the work in India, they will staff and perform the work
wherever necessary.
6. All defined terms shall have the same meaning as in the Stock Purchase
Agreement. Any terms not expressly changed by this Amendment shall
remain unchanged.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 1 to the Stock Purchase Agreement as of the date first above
written.
IXL ENTERPRISES, INC. HPS AMERICA, INC.
By: /s/ By: /s/
-------------------------------------- -------------------------
Name: Name: L Xxxxx Xxxxx
Title: Title: Director
Witnesses:
1. /s/
---------------------------------------
2.
---------------------------------------
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
This Amendment (this "Amendment") No. 2 to the Stock Purchase Agreement by and
between HPS AMERICA, INC. ("HPS"), and IXL ENTERPRISES, INC. (the "Company"),
has been made as of June 25, 2001.
RECITALS
A. The parties have entered into a Stock Purchase Agreement on 28th
December 2000 (the "Stock Purchase Agreement") whereby HPS has
purchased 1,000,000 shares of the Company's common stock par value
US$0.01 per share at US$ 3.00 per Share; and the Company in
consideration thereof, has committed to subcontracting and /or
providing to HPS Group a Business of not less than US$ 65,000,000 over
a period of three (3) calendar years effective 1st January 2001;
B. The parties have entered into an amendment to the Stock Purchase
Agreement on 13th January 2001 whereby certain changes were made to
Clauses 1.01.14, 2.03, 3.03 and 5.08 of the Stock Purchase Agreement;
C. The parties have entered into a Pledge and Securities Agreement on 13th
January 2001 (the "Pledge and Securities Agreement") whereby HPS has
pledged with the Company, the Shares as security for the payment of the
balance of the Purchase Price due on or before 31st August 2001;
D. HPS has paid 50% of the Purchase Price to the Company, as provided in
Clause 2.02 of the Stock Purchase Agreement on 28th December 2000, and
the Company has issued to HPS 1,000,000 fully paid up shares of Common
Stock, par value $0.10 per share (the "Shares") on the same date;
E. The parties have worked in good faith to achieve the objectives of the
Stock Purchase Agreement, but acknowledge the difficult global market
conditions affecting financial performance of software companies during
2001;
F. HPS has agreed to change the time period for the Company to meet the
Minimum Cumulative Business Volume set forth in the Stock Purchase
Agreement;
G. The Company has agreed (i) to release, free of any Encumbrance, to HPS
500,000 shares out of the Shares, and (ii) to extend the date by which
HPS has to pay the balance of the Purchase Price; and
H. The Company has also agreed to pay the salaries and expenses of not
less than two HPS employees working full-time, and HPS has agreed that
such expenses will be credited against the business volume commitments.
NOW, THEREFORE, in consideration of the foregoing, the parties agree to amend
the Stock Purchase Agreement as follows:
1. Clause 1.01.6 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
"BUSINESS PERIOD" means a period of three years from the Effective
Date;
2. Clause 1.01.12 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.12 "EFFECTIVE DATE" means 1st July 2001;
3. Clause 1.01.15 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.15 "FIRST SIX MONTHS MINIMUM BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Five Million US Dollars
(US$ 5,000,000), of which at least thirty five percent (35%)
is from Offshore Business;
4. Clause 1.01.26 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.26 "MINIMUM CUMULATIVE BUSINESS VOLUME" means Revenues generated
from Business subcontracted and/ or provided to HPS Group by
the Company of not less than Sixty Five Million US Dollars
(US$ 65,000,000), consisting of First Six Months Minimum
Business Volume, Second Six Months Minimum Business Volume,
Second Year Minimum Annual Business Volume and Third Year
Minimum Annual Business Volume;
5. Clause 1.01.36 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.36 "SECOND SIX MONTHS MINIMUM BUSINESS VOLUME" means Revenues
generated from Business subcontracted/ and or provided to HPS
Group by the Company of not less than Ten Million US Dollars
(US$ 10,000,000), of which at least thirty five percent (35%)
is from Offshore Business;
6. Clause 1.01.37 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.37 "SECOND YEAR MINIMUM ANNUAL BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Twenty Million US
Dollars (US$ 20,000,000), of which at least sixty percent
(60%) is from Offshore Business;
7. Clause 1.01.41 of the Stock Purchase Agreement is amended in its
entirety to read as follows:
1.01.41 "THIRD YEAR MINIMUM ANNUAL BUSINESS VOLUME" means Revenues
generated from Business subcontracted and/or provided to HPS
Group by the Company of not less than Thirty Million US
Dollars (US$ 30,000,000), of which at least sixty percent
(60%) is from Offshore Business;
8. Section 2.02 of the Stock Purchase Agreement is amended in its entirety
to read as follows:
2.02 PAYMENT OF PURCHASE PRICE: HPS shall pay 50% of the Purchase
Price on or before 31st December 2000 and the remaining 50%
shall be paid on or before 31st March 2002.
9. Section 2.06 of the Stock Purchase Agreement is amended in its entirety
to read as follows:
2.06 BUSINESS TO BE PROVIDED BY THE COMPANY TO THE HPS GROUP. In
consideration of HPS agreeing to subscribe for the Shares in
the capital of the Company, subject to the terms and
conditions hereof, the Company shall, during the Business
Period, subcontract and/or provide Business to HPS as given
below:
2.06.1 In the period from the Effective Date through
December 31, 2001, in the amount of the First Six
Months Minimum Business Volume;
2.06.2 In the period from January 1, 2002, through June 30,
2002, in the amount of the Second Six Months Minimum
Business Volume;
2.06.3 In the period from July 1, 2002, through June 30,
2003, in the amount of the Second Year Minimum Annual
Business Volume;
2.06.4 In the period from July 1, 2003, through June 30,
2004, in the amount of the Third Year Minimum Annual
Business Volume,, and
2.06.5 During the Business Period, in the aggregate and
cumulative amount of the Minimum Cumulative Business
Volume;
For purposes of determining whether the Company has satisfied
its obligations under this Clause 2.06, the following shall be
applicable:
(a) In the event that any Offshore Business offered to
the HPS Group by the Company pursuant to the terms of
this Agreement is refused for any reason by the HPS
Group, the amount of Offshore Business required under
the sub-clauses 2.06.1, 2.06.2, 2.06.3 or 2.06.4, as
the case may be, and the sub-clause 2.06.5 above,
shall be reduced by the Revenue that would have been
generated by such refused Offshore Business as
determined by both the parties in good faith;
(b) In the event that the Revenue generated by the
Business for any specified time period exceeds the
minimum amount of the Revenue required for such time
period, and there have been no shortfalls in the
Revenue in prior time periods, such excess Revenue
shall be applied to the minimum required Revenue for
the next applicable time period(s);
(c) In the event that the Revenue generated by the
Business for any specified time period exceeds the
minimum amount of the Revenue required for such time
period, and there has been a shortfall or shortfalls
in the Revenue in a prior time period or periods, and
as a result of such shortfall or shortfalls, the
Company has made payment to HPS in accordance with
the terms of Clause 2.09, HPS shall refund the amount
which it received in lieu of the minimum required
Revenue for such time period with respect to the
amount of such excess, within thirty (30) days
following the expiration of the time period
concerned.
10. Section 8.02 of the Stock Purchase Agreement is amended in its entirety
to read as follows:
8.02 TERM OF THIS AGREEMENT. Subject to Clause 8.01, this Agreement
shall come into effect on the Effective Date and shall be
effective till 30th June 2004.
11. Notwithstanding anything contrary stated in the Stock Purchase
Agreement and the Pledge and Securities Agreement, immediately upon
signing of this Amendment, the Company agrees to release, free of any
Encumbrance, to HPS 500,000 shares out of the Shares currently pledged
to the Company by HPS under the terms of the Pledge and Securities
Agreement;
12. From the Effective Date, the Company agrees to bear and reimburse the
salaries and reasonable travel and other related expenses for two of
HPS employees ("HPS Personnel") nominated by HPS from time to time for
the Business Period. Currently, the HPS Personnel are M/s Xxxxxxx Xxxxx
and Xxxxxx Xxxxxx. The HPS Personnel shall be seconded to iXL for the
purposes of managing the relationship between HPS and the Company as
well as for developing business for HPS through iXL. The HPS Personnel
shall administratively report to and be
directed by the Company's senior management. It is anticipated that
additional HPS personnel may be added in this capacity in the future by
mutual agreement of the parties as required.
13. For all payments made under clause 12 of this Amendment, by the Company
to HPS, the Company shall get full credit against the business volume
commitment of the period in which such payments are made and will be
adjusted against the same.
14. Both parties agree that (i) salary cost (excluding business related
expenses) related to each of HPS Personnel, shall not exceed US$100,000
per person per annum or US$ 200,000 per annum in aggregate, whichever
is higher; and (ii) travel related expenses (excluding any
international travel) shall not exceed US$ 22,500 per person per annum
or US$ 45,000 per annum in aggregate, whichever is higher; both (i) and
(ii) subject to any mutually agreed upward revision. Any international
travel by HPS Personnel will be undertaken only with the consent of the
concerned authority in iXL approving such international travel.
15. The Company and HPS acknowledge and agree that they will work together
in these difficult market conditions to find and perform work wherever
it is available.
16. All words and terms starting with capital letter used in this Amendment
(including the Recitals) shall have the same meaning as in the Stock
Purchase Agreement.
17. This Amendment supersedes all prior proposals and discussions written
or verbal and represents the final agreement between the parties with
regard to the subject matter of this Amendment and the parties signing
below agree to and concur with the modifications made in this
Amendment. Except as amended herein, all of the terms and conditions of
the Stock Purchase Agreement and the Pledge and Securities Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 2 to the Stock Purchase Agreement as of the date first above
written.
IXL ENTERPRISES, INC. HPS AMERICA, INC.
By: /s/ By: /s/
------------------------ --------------------------------
Name: Name: L Xxxxx Xxxxx
Title: Title: Director
Witnesses:
1. /s/
-------------------------
2. /s/
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AMENDMENT NO. 3 TO STOCK PURCHASE AGREEMENT
This Amendment (this "Amendment") No. 3 to the Stock Purchase Agreement by and
between HPS AMERICA, INC. ("HPS"), and IXL ENTERPRISES, INC. (the "Company"),
has been made as of October __, 2001.
RECITALS
A. The parties have entered into a Stock Purchase Agreement on 28th
December 2000 (the "Stock Purchase Agreement") whereby HPS agreed to
purchase 1,000,000 shares of the Company's common stock par value
US$0.01 per share at US$3.00 per share; and the Company in
consideration thereof, committed to subcontracting and/or providing to
HPS Group a Business of not less than US$65,000,000 over a period of
three (3) calendar years effective 1st January 2001;
B. The parties have entered into two amendments to the Stock Purchase
Agreement on 13th January 2001, and 25th June 2001, respectively;
C. The parties have entered into a Pledge and Securities Agreement on 13th
January 2001 (the "Pledge and Securities Agreement") whereby HPS has
pledged with the Company, the Shares as security for the payment of the
balance of the Purchase price due on or before 31st August 2001;
D. HPS has paid 50% of the Purchase Price to the Company, as provided in
Clause 2.02 of the Stock Purchase Agreement on 28th December 2000, and
the Company has issued to HPS 1,000,000 fully paid up shares of Common
Stock, par value $0.10 per share (the "Shares") on the same date;
E. The parties have worked in good faith to achieve the objectives of the
Stock Purchase Agreement, but acknowledge the difficult global market
conditions affecting financial performance of software companies during
2001;
F. HPS has agreed to delete the Minimum Cumulative Business Volume set
forth in the Stock Purchase Agreement;
G. The Company had agreed to forgive the final payment of the balance of
the Purchase Price of the Shares by HPS;
H. The Company has also agreed to pay the salaries and expenses of not
less than two HPS employees working full-time through June 30, 2004;
I. The Company and Scient Corporation ("Scient") have agreed to merge with
Scient, Inc. being the name of the surviving corporation;
J. As part of such merger, Scient will succeed to the rights and
obligations of the Company pursuant to the terms of the Stock Purchase
Agreement, as amended, and Scient has
executed this Amendment No. 3 to indicate its willingness to accept and
assume such rights and obligations.
NOW, THEREFORE, in consideration of the foregoing, the parties agree to amend
the Stock Purchase Agreement as follows:
1. Notwithstanding anything contrary stated in the Stock Purchase
Agreement and the Pledge and Securities Agreement, upon the
effectiveness of this Amendment, the Company agrees to release, free of
any encumbrance and without the payment of any additional purchase
price, to HPS 500,000 shares of the shares currently pledged to the
Company by HPS under the terms of the Pledge and Securities Agreement.
Any remaining amounts due the Company from HPS for such shares pursuant
to the Stock Purchase Agreement are forgiven by the Company.
2. The Company agrees to bear and reimburse the salaries and reasonable
travel and other related expenses for two of HPS employees ("HPS
Personnel") nominated by HPS from time to time for the period ending
June 30, 2004. Currently, the HPS Personnel are M/s Xxxxxxx Xxxxx and
Xxxxxx Xxxxxx. The HPS Personnel shall be seconded to the Company for
the purposes of managing any relationship between HPS and the Company
as well as for developing business for HPS through the Company. The HPS
Personnel shall administratively report to and be directed by the
Company's senior management and shall be provided with office
facilities in New York, NY at the offices of Scient. The HPS Personal
shall be relocated to the Company's headquarter in New York, in the
second quarter of year 2002.
3. Both parties agree that (i) salary cost (excluding business related
expenses) related to each of such HPS Personnel, shall not exceed
US$100,000 per person per annum or US$200,000 per annum in aggregate,
whichever is higher; and (ii) travel related expenses (excluding any
international travel) shall not exceed US$22,500 per person per annum
or US$45,000 per annum in aggregate, whichever is higher; both (i) and
(ii) subject to any mutually agreed upward revision. Any international
travel by HPS Personnel will be undertaken only with the consent of the
concerned authority in the Company approving such international travel.
4. Notwithstanding anything contrary stated in the Stock Purchase
Agreement, the Company shall no longer have any minimum business volume
requirements as currently set forth in Clause 2.06 of the Stock
Purchase Agreement. For purposes of clarity, such Clause 2.06 and
Clause 2.09 are hereby deleted in their entirety from the Stock
Purchase Agreement.
5. The parties acknowledge and agree that the provisions of Clause 9.03
remain in full force and effect.
6. With this Amendment being in force, HPS Group and any member thereof,
shall also be Company's preferred supplier of Software Services and
shall have first right of refusal to
any onsite sub-contracted services, provided HPS offers the same rates
and services as comparable to other Vendors rendering onsite services.
7. The Parties agree that in the event that the Company should become the
subject of a bankruptcy proceeding, whether voluntary or involuntary,
it shall cooperate with HPS, and shall do necessary acts and deeds,
including but not limited to, introducing HPS to any third Party
clients, executing any documents, agreements as may be required with
respect to the assignment to HPS of any agreements or contracts for the
provision of Software Services to third parties. HPS acknowledges that
such contracts may not be assignable without the consent of such third
parties, however the Company shall do all efforts to obtain consents of
such third parties, that may include making any joint proposals,
presentations or demonstrations to such third parties as required by
HPS.
Further, the Company and Scient agree to have HPS informed and work
closely on all the prospect clients and keep HPS integrally involved in
all the sales process and efforts.
Both HPS and Scient will agree to a plan to work jointly on maximizing
the business with existing clients of the Company and Scient
8. Notwithstanding anything contrary stated in the Stock Purchase
Agreement, HPS agrees to provide the Company and its customers with the
preferred rates available to HPS's customers.
9. All Board observations rights with respect to the Company set forth in
the Stock Purchase Agreement shall be applicable to Scient following
the effectiveness of the merger between the Company and Scient. HPS
shall be included on all pipeline calls and shall be provided copies of
all pipeline reports of Scient following the effectiveness of the
merger between the Company and Scient.
10. Upon the effectiveness of this Amendment No. 3, Scient and HPS shall
issue a joint press release, the terms of which shall be mutually
acceptable to Scient and HPS, indicating that Scient has accepted HPS
as its exclusive India Centric delivery partner for Software Services.
11. The effectiveness of this Amendment No. 3 is contingent upon (A) the
effectiveness of the merger between the Company and Scient, which if
consummated shall be the effective date of this Amendment No. 3, and
(B) the payment in full by the Company of the invoices described on
Attachment A hereto on or before November 15, 2001.
12. All defined terms shall have the same meaning as in the Stock Purchase
Agreement. Any terms not expressly changed by this Amendment shall
remain unchanged.
13. There may be circumstances where HPS acquires the customer relationship
and chooses to contract with the Company for services. In such
circumstances, HPS and the Company shall mutually agree on a case by
case basis the appropriate revenue sharing arrangements.
IN WITNESS WHEREOF, the Company and HPS have executed this Amendment No. 3, and
Scient has joined in this Amendment No. 3 for the purposes of indicating its
agreement to assume and accept the rights and obligations of the Company under
the Stock Purchase Agreement upon the effectiveness of the merger between the
Company and Scient, all as of the date first above written.
IXL ENTERPRISES, INC. HPS AMERICA, INC.
By: /s/ By: /s/
------------------------------ --------------------------------
Name: Name:
----------------------------- ------------------------------
Title: Title:
---------------------------- -----------------------------
Witness: Witness:
-------------------------- ---------------------------
ACCEPTED AND AGREED:
SCIENT CORPORATION
By: /s/
-----------------------------
Name:
----------------------------
Title:
---------------------------
Witness:
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