EXHIBIT 10.13
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, The Riverstone Group, LLC, a
Virginia limited liability company (the "Investor"), hereby subscribes for 12
million shares (the "Securities") of Common Stock, $.01 par value ("Common
Stock"), of iXL Enterprises, Inc. (the "Company"), at a purchase price of $1.00
per share for a total purchase price of $12,000,000 (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Xxxxxxx, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver by wire transfer in immediately available funds the Total Purchase
Price.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company from registration under Section 5
of the United States Securities Act of 1933, as amended, and the regulations
promulgated thereunder (the "Securities Act").
- 1 -
2.1 Status. The Investor is duly organized, validly existing and in
good standing in the State of Virginia, with full power and authority to enter
into this Subscription Agreement and to perform its obligations hereunder.
2.2 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.3 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.4 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.5 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.6 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the
- 2 -
Securities have not been registered under either the Securities Act or
applicable state securities law and no federal, state or other governmental
agency has passed upon the adequacy or accuracy or the information concerning
the Company or made any finding or determination as to the fairness of the
investment, or any recommendation or endorsement of the Securities as an
investment; (b) the Securities cannot be sold, transferred or otherwise disposed
of unless they are registered under the Securities Act or an exemption from
registration is then available; (c) except as set forth in the Registration
Rights Agreement, the Company has no obligation or intention to register the
Securities under any U.S. federal or state securities act or law or the
securities act or law of any other jurisdiction, (d) neither the Company nor any
person acting on behalf of the Company has offered to sell the Securities to the
Investor by means of any form of general solicitation or advertising, such as
media advertising or public seminars, (e) the Company will be relying upon the
representations contained in this Article II in selling the Securities to
Investor, and (f) the transferability of the Securities will be subject to
restrictions imposed by all applicable federal and state security laws and the
certificates evidencing such Securities may be imprinted with a legend
substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.7 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.8 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
- 3 -
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
- 4 -
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
4.2.2. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MANDATORY REDEMPTION
5.1 Redemption of the Securities. The Company agrees that upon receipt
at any time within one (1) year after the date of the Closing of written notice
from the Investor, the Company will repurchase the Securities from the Investor
for an aggregate purchase price of $10,000.
ARTICLE VI: MISCELLANEOUS
6.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
6.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
6.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
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SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at Richmond, Virginia this 28th day of March, 2001.
CITY STATE
THE RIVERSTONE GROUP, LLC
By: /s/ XXXXXXXX X. XXXXXXXXX
----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
----------------------------------------------------
Title: Manager
---------------------------------------------------
Federal Tax ID Number: 00-0000000
-----------------------------------
Address: 000 Xxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
-------------------------------------------------
Telephone: 000-000-0000
-----------------------------------------------
Facsimile: 000-000-0000
-----------------------------------------------
ACCEPTED THIS ___ DAY OF ______, 2001
IXL ENTERPRISES, INC.
By: /s/ U. XXXXXXX XXXXX, XX.
------------------------------------------------------
Name:
----------------------------------------------------
Title:
---------------------------------------------------
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EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
- 1 -
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ U. Xxxxxxx Xxxxx, Xx.
------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
"STOCKHOLDER":
THE RIVERSTONE GROUP, LLC
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
------------------------------------------------
Title: Manager
-----------------------------------------------
- 2 -
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Traurig, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
- 1 -
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
- 2 -
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
- 3 -
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
- 4 -
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MANDATORY REDEMPTION
5.1 Redemption of the Securities. The Company agrees that upon receipt
at any time within one (1) year after the date of the Closing of written notice
from the Investor, the Company will repurchase the Securities from the Investor
for an aggregate purchase price of $10,000.
ARTICLE VI: MISCELLANEOUS
6.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
6.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
6.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
- 5 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at Chicago, Illinois this 30th day of March, 2001.
CITY STATE
THE INVESTOR:
Xxxxxx X. Xxxxx
------------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Sign here
Its:
--------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
Number of Shares of Common Stock
Subscribed For: 1,000,000
-------------------------------
Total Purchase Price: $ 1,000,000
------------------------------
Taxpayer I.D. Number or
Social Security Number:
-------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: 00 Xxxxxx Xx. #0000
Xxxxxxx, XX 00000
----------------------------------------------
Telephone: (000) 000-0000
--------------------------------------------
Fax: (000) 000-0000
--------------------------------------------------
Accepted this 30th day of March, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Title: Executive Vice President
------------------------------------------------
- 6 -
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
- 1 -
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
"STOCKHOLDER":
Xxxxxx X. Xxxxx
----------------------------------------------------
Please print or type name
/s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Sign here
- 2 -
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Traurig, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
- 1 -
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
- 2 -
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
- 3 -
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
- 4 -
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
- 5 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ___ day of __________, 2001.
-------- --------
CITY STATE
THE INVESTOR:
Xxxxx X. Xxxxxxx XX
------------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxx XX
---------------------------------------------------
Sign here
Its:
--------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
Number of Shares of Common Stock
Subscribed For: 50,000
------------------------------
Total Purchase Price: $ 50,000
------------------------------
Taxpayer I.D. Number or
Social Security Number:
--------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/o Kelso & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------
Telephone: (000) 000-0000
--------------------------------------------
Fax: (000) 000-0000
--------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Title: Executive Vice President
------------------------------------------------
- 6 -
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
- 1 -
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Title: Executive Vice President
------------------------------------------------
"STOCKHOLDER":
Xxxxx X. Xxxxxxx XX
------------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxx XX
---------------------------------------------------
Sign here
Its:
--------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
- 2 -
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Traurig, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
-1-
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
-2-
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
-3-
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
-4-
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
-5-
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ______ day of __________, 2001.
-------- --------
CITY STATE
THE INVESTOR:
Xxxxx X. Xxxxxxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
Number of Shares of Common Stock
Subscribed For: 25,000
---------------------------------
Total Purchase Price: $25,000
------------------------------
Taxpayer I.D. Number or
Social Security Number:
--------------------------
Print or type address, telephone number and fax
number preferred for shareholder communications:
Address: c/o Kelso & Company
--------------------------------------------
000 Xxxx Xxxxxx, 00xx floor
----------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------
Telephone: (000) 000-0000
------------------------------------------
Fax: (000) 000-0000
------------------------------------------------
Accepted this day of , 2001
--- ------
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-1-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
"STOCKHOLDER":
Xxxxx X. Xxxxxxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
-2-
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Traurig, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
-1-
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
-2-
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
-3-
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
-4-
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
-5-
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York , New York this ____ day of __________, 2001.
------------ ------------
CITY STATE
THE INVESTOR:
Xxxxxx X. Xxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
Number of Shares of Common Stock
Subscribed For: 25,000
--------------------------------
Total Purchase Price: $ 25,000
------------------------------
Taxpayer I.D. Number or
Social Security Number:
-------------------------
Print or type address, telephone number and fax
number preferred for shareholder communications:
Address: c/o Kelso & Company
--------------------------------------------
000 Xxxx Xxxxxx, 00xx Floor
----------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------
Telephone: 000-000-0000
------------------------------------------
Fax: 000-000-0000
------------------------------------------------
Accepted this day of , 2001
--- ------
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-1-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
"STOCKHOLDER":
Xxxxxx X. Xxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
-2-
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Traurig, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
-1-
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
-2-
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
-3-
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
-4-
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
-5-
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this day of , 2001.
-------- -------- --- ----------
CITY STATE
THE INVESTOR:
Xxxxx X. Xxxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
Number of Shares of Common Stock
Subscribed For: 25,000
--------------------------------
Total Purchase Price: $25,000
------------------------------
Taxpayer I.D. Number or
Social Security Number:
-------------------------
Print or type address, telephone number and fax
number preferred for shareholder communications:
Address: c/o Kelso & Company
--------------------------------------------
000 Xxxx Xxxxxx, 00xx Floor
-----------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
-----------------------------------------------------
Telephone: 000-000-0000
------------------------------------------
Fax: 000-000-0000
-----------------------------------------------
Accepted this day of , 2001
--- ------
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-1-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Executive Vice President
----------------------------------------------
"STOCKHOLDER":
Xxxxx X. Xxxxxxx
----------------------------------------------------
Please print or type legal name of Investor as it
should appear on the stock certificate and in the
Company's records
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Sign here
Its:
------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with such
entity
-2-
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated
hereby (the "Closing") shall occur immediately after the satisfaction of the
conditions set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx
Xxxxxxx, LLP, The Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
or at such other time and place as mutually agreed to by the Company and the
Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver
to the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor
shall deliver to the Company (i) by wire transfer in immediately available funds
the Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
- 1 -
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Investor, this
Subscription Agreement will be valid, binding and enforceable against the
Investor in accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will
be acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor
has knowledge and experience in financial, investment and business matters, that
the Investor is capable of evaluating the merits and risks of an investment in
the Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
- 2 -
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and
performance of this Subscription Agreement by the Investor will not (i) violate,
conflict with, or result in the breach, acceleration, default of termination of,
or otherwise give any other contracting party the right to terminate,
accelerate, modify or cancel any of the terms, provisions or conditions of any
material agreement or instrument to which the Investor is a party or by which it
or its assets are bound, or (ii) constitute a violation of any applicable law,
rule or regulation, or of any judgment, order, injunction, award or decree or
any court, administrative agency or other governmental authority applicable to
it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
- 3 -
3.3 Execution and Delivery. The Company has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Company, this
Subscription Agreement will be valid, binding and enforceable against the
Company in accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the
consent of the Majority Stockholders under the Registration Rights Agreement,
the execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by
the Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
- 4 -
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by
a written instrument signed by the Company and the Investor.
[Signatures on Following Page]
- 5 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ___ day of __________, 2001.
-------- --------
CITY STATE
THE INVESTOR:
Xxxxxxx X. Xxxxxxxx
---------------------------------------------------------
Please print or type legal name of Investor
as it should appear on the stock certificate
and in the Company's records
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------------
Sign here
Its:
-----------------------------------------------------
If signatory is executing on behalf of an
entity, please indicate signatory's title or
office with such entity
Number of Shares of Common Stock
Subscribed For: 20,000
----------------------------------
Total Purchase Price: $20,000
----------------------------------
Taxpayer I.D. Number or
Social Security Number:
--------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/x Xxxxx J. Company
-------------------------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
---------------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------------------------------
Telephone: (000) 000-0000
-----------------------------------------------
Fax: (000) 000-0000
-----------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------------------
Title: Executive Vice President
---------------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated
Registration Rights Agreement, dated as of October 28, 1999, among the Company
and certain other parties (as amended by that certain First Amendment to Amended
and Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued,
fully paid and nonassessable common stock of the Company, $.01 par value (the
"iXL Stock") to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder
a party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt
of, and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the
Stockholder as a party to the Registration Rights Agreement as if the
Stockholder were an original party thereto. The Company further covenants and
agrees that it will treat the Stockholder as if he were an original party to the
Registration Rights Agreement, affording the Stockholder all applicable rights
and privileges thereunder.
- 1 -
3. Stockholder Deemed Party. The Stockholder is hereby deemed to
be a party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation hereof. Words
such as "herein," "hereof," "hereto," "hereunder" or the like shall refer to
this Agreement as a whole. Any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term
used herein shall have the meaning specified in the Registration Rights
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------------------
Title: Executive Vice President
---------------------------------------------------
"STOCKHOLDER":
Xxxxxxx X. Xxxxxxxx
---------------------------------------------------------
Please print or type legal name of Investor
as it should appear on the stock certificate
and in the Company's records
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------------
Sign here
Its:
-----------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with
such entity
- 2 -
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated
hereby (the "Closing") shall occur immediately after the satisfaction of the
conditions set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx
Xxxxxxx, LLP, The Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
or at such other time and place as mutually agreed to by the Company and the
Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver
to the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor
shall deliver to the Company (i) by wire transfer in immediately available funds
the Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
- 1 -
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Investor, this
Subscription Agreement will be valid, binding and enforceable against the
Investor in accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will
be acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor
has knowledge and experience in financial, investment and business matters, that
the Investor is capable of evaluating the merits and risks of an investment in
the Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
- 2 -
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and
performance of this Subscription Agreement by the Investor will not (i) violate,
conflict with, or result in the breach, acceleration, default of termination of,
or otherwise give any other contracting party the right to terminate,
accelerate, modify or cancel any of the terms, provisions or conditions of any
material agreement or instrument to which the Investor is a party or by which it
or its assets are bound, or (ii) constitute a violation of any applicable law,
rule or regulation, or of any judgment, order, injunction, award or decree or
any court, administrative agency or other governmental authority applicable to
it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
- 3 -
3.3 Execution and Delivery. The Company has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Company, this
Subscription Agreement will be valid, binding and enforceable against the
Company in accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the
consent of the Majority Stockholders under the Registration Rights Agreement,
the execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by
the Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
- 4 -
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by
a written instrument signed by the Company and the Investor.
[Signatures on Following Page]
- 5 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ___ day of __________, 2001.
-------- --------
CITY STATE
THE INVESTOR:
Xxxxx X. Xxxxx, Xx.
---------------------------------------------------------
Please print or type legal name of Investor
as it should appear on the stock certificate
and in the Company's records
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------------------------
Sign here
Its:
-----------------------------------------------------
If signatory is executing on behalf of an
entity, please indicate signatory's title or
office with such entity
Number of Shares of Common Stock
Subscribed For: 275,000
----------------------------------
Total Purchase Price: $275,000
----------------------------------
Taxpayer I.D. Number or
Social Security Number:
--------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/o Kelso & Company
-------------------------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
---------------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------------------------------
Telephone: (000) 000-0000
-----------------------------------------------
Fax: (000) 000-0000
-----------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------------------
Title: Executive Vice President
---------------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated
Registration Rights Agreement, dated as of October 28, 1999, among the Company
and certain other parties (as amended by that certain First Amendment to Amended
and Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued,
fully paid and nonassessable common stock of the Company, $.01 par value (the
"iXL Stock") to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder
a party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt
of, and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the
Stockholder as a party to the Registration Rights Agreement as if the
Stockholder were an original party thereto. The Company further covenants and
agrees that it will treat the Stockholder as if he were an original party to the
Registration Rights Agreement, affording the Stockholder all applicable rights
and privileges thereunder.
- 1 -
3. Stockholder Deemed Party. The Stockholder is hereby deemed to
be a party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation hereof. Words
such as "herein," "hereof," "hereto," "hereunder" or the like shall refer to
this Agreement as a whole. Any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term
used herein shall have the meaning specified in the Registration Rights
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------------------
Title: Executive Vice President
---------------------------------------------------
"STOCKHOLDER":
Xxxxx X. Xxxxx, Xx.
---------------------------------------------------------
Please print or type legal name of Investor
as it should appear on the stock certificate
and in the Company's records
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------------------------
Sign here
Its:
-----------------------------------------------------
If signatory is executing on behalf of an entity,
please indicate signatory's title or office with
such entity
- 2 -
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated
hereby (the "Closing") shall occur immediately after the satisfaction of the
conditions set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx
Traurig, LLP, The Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
or at such other time and place as mutually agreed to by the Company and the
Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver
to the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor
shall deliver to the Company (i) by wire transfer in immediately available funds
the Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
- 1 -
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Investor, this
Subscription Agreement will be valid, binding and enforceable against the
Investor in accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will
be acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor
has knowledge and experience in financial, investment and business matters, that
the Investor is capable of evaluating the merits and risks of an investment in
the Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
- 2 -
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and
performance of this Subscription Agreement by the Investor will not (i) violate,
conflict with, or result in the breach, acceleration, default of termination of,
or otherwise give any other contracting party the right to terminate,
accelerate, modify or cancel any of the terms, provisions or conditions of any
material agreement or instrument to which the Investor is a party or by which it
or its assets are bound, or (ii) constitute a violation of any applicable law,
rule or regulation, or of any judgment, order, injunction, award or decree or
any court, administrative agency or other governmental authority applicable to
it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
- 3 -
3.3 Execution and Delivery. The Company has duly and validly
executed and delivered this Subscription Agreement, and, upon the acceptance,
execution and delivery of this Subscription Agreement by the Company, this
Subscription Agreement will be valid, binding and enforceable against the
Company in accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the
consent of the Majority Stockholders under the Registration Rights Agreement,
the execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by
the Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
- 4 -
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by
a written instrument signed by the Company and the Investor.
[Signatures on Following Page]
- 5 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ____ day of __________,
-------- --------
CITY STATE
2001.
THE INVESTOR:
Xxxxx X. Xxxxxxx
-------------------------------------------------------------
Please print or type legal name of Investor as it should
appear on the stock certificate and in the Company's records
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------------------
Sign here
Its:
---------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
Number of Shares of Common Stock
Subscribed For: 1,325,000
------------------------------------
Total Purchase Price: $ 1,325,000
--------------------------
Taxpayer I.D. Number or
Social Security Number:
---------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/o Kelso & Company
-----------------------------------------------------
000 Xxxx Xxxxxx 00xx Xxxxx
-------------------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------
Telephone: (000) 000-0000
---------------------------------------------------
Fax: (000) 000-0000
---------------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
--------------------------------------------------------
Title: Executive Vice President
-------------------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-1-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Title: Executive Vice President
--------------------------------------------------------
"STOCKHOLDER":
Xxxxx X. Xxxxxxx
--------------------------------------------------------------
Please print or type legal name of Investor as it should appear
on the stock certificate and in the Company's records
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------------------
Sign here
Its:
----------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
-2-
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Xxxxxxx, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
-1-
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
-2-
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
-3-
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
-4-
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
-5-
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this ___ day of __________,
-------- --------
CITY STATE
2001.
THE INVESTOR:
Please print or type legal name of Investor as it should
appear on the stock certificate and in the Company's records
By: Xxxxxx X. Xxxx, XX
----------------------------------------------------------
Sign here
Its: /s/ Xxxxxx X. Xxxx, XX
---------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
Number of Shares of Common Stock
Subscribed For: 730,000
------------------------------------
Total Purchase Price: $ 730,000
--------------------------
Taxpayer I.D. Number or
Social Security Number:
---------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/o Kelso & Company
-----------------------------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
-----------------------------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------------------
Telephone: (000) 000-0000
---------------------------------------------------
Fax: (000) 000-0000
---------------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
--------------------------------------------------------
Title: Executive Vice President
-------------------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-1-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Title: Executive Vice President
--------------------------------------------------------
"STOCKHOLDER":
Xxxxxx X. Xxxx, XX
--------------------------------------------------------------
Please print or type legal name of Investor as it should appear
on the stock certificate and in the Company's records
By: /s/ Xxxxxx X. Xxxx, XX
-----------------------------------------------------------
Sign here
Its:
----------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
-2-
SUBSCRIPTION AGREEMENT
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, the investor named on the
signature page hereto (the "Investor"), hereby subscribes for the number of
shares of Common Stock, $.01 par value ("Common Stock"), of iXL Enterprises,
Inc. (the "Company") listed on the signature page hereto (the "Securities"), at
a purchase price of $1.00 per share for a total purchase price equal to the
Total Purchase Price listed on the signature page hereto (the "Total Purchase
Price").
ARTICLE I: CLOSING
1.1 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall occur immediately after the satisfaction of the conditions
set forth in Section 4.1.3 hereof at the offices of Xxxxxxxxx Xxxxxxx, LLP, The
Forum, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other
time and place as mutually agreed to by the Company and the Investor.
1.2 Closing Deliveries. At the Closing, the Company shall deliver to
the Investor (i) a stock certificate or certificates representing the
Securities, (ii) the Agreement to be Bound by that certain Amended and Restated
Registration Rights Agreement (as amended by that certain First Amendment to
Amended and Restated Registration Rights Agreement, dated as of November 2,
1999, the "Registration Rights Agreement") dated as of October 28, 1999, among
the Company, Xxxxx Investment Associates V, L.P., Xxxxx Equity Partners V, L.P.,
and certain other stockholders of the Company, and (iii) the Audit Opinion (as
defined in Section 4.1.3).
1.3 Payment of the Purchase Price. At the Closing, the Investor shall
deliver to the Company (i) by wire transfer in immediately available funds the
Total Purchase Price, and (ii) the Agreement to be Bound by the Registration
Rights Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Securities as an investment for the Investor and to determine the availability
of the exemptions relied upon by the Company
-1-
from registration under Section 5 of the United States Securities Act of 1933,
as amended, and the regulations promulgated thereunder (the "Securities Act").
2.1 Execution and Delivery. The Investor has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Investor, this Subscription
Agreement will be valid, binding and enforceable against the Investor in
accordance with its terms.
2.2 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Investor.
2.3 Access to Information. The Investor acknowledges that: (a) the
Investor has been provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional information
concerning the Company as the Investor deems necessary in connection with the
Investor's acquisition of interests in the Company; (b) information with respect
to existing business and historical operating results of the Company and
estimates and projections as to future operations involve significant subjective
judgment and analysis, which may or may not be correct; (c) the Company cannot,
and does not, make any representation or warranty as to the accuracy of the
information concerning the past or future results of the Company except as set
forth in Article III below. The Investor has sought such accounting, legal and
tax advice as the Investor considered necessary to make an informed investment
decision. The Investor has relied solely upon independent investigations made by
the Investor in making the decision to purchase the Securities subscribed for
herein, and acknowledges that no representations or agreements have been made to
the Investor with respect thereto except as set forth in Article III below.
2.4 Investment Intent. The Securities subscribed for herein will be
acquired solely by and for the account of the Investor for investment and are
not being purchased for resale or distribution. The Investor has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the Securities (or any portion
thereof or interest therein) for which the Investor hereby subscribes, and the
Investor has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement.
2.5 Investment Experience. The Investor warrants that the Investor has
knowledge and experience in financial, investment and business matters, that the
Investor is capable of evaluating the merits and risks of an investment in the
Securities, and that Investor is aware of and can afford the risks of making
such an investment, including the risk of losing the Investor's entire
investment. The financial condition of the Investor is such that the Investor
can afford to bear the economic risk of holding the Securities for an indefinite
period of time has adequate means for providing for his current needs and
contingencies, and can afford to suffer a complete loss of his investment in the
Securities. The Investor expressly acknowledges that: (a) the Securities have
not been registered under either the Securities Act or applicable state
securities law and no federal, state or other governmental agency has passed
upon the adequacy or
-2-
accuracy or the information concerning the Company or made any finding or
determination as to the fairness of the investment, or any recommendation or
endorsement of the Securities as an investment; (b) the Securities cannot be
sold, transferred or otherwise disposed of unless they are registered under the
Securities Act or an exemption from registration is then available; (c) except
as set forth in the Registration Rights Agreement, the Company has no obligation
or intention to register the Securities under any U.S. federal or state
securities act or law or the securities act or law of any other jurisdiction,
(d) neither the Company nor any person acting on behalf of the Company has
offered to sell the Securities to the Investor by means of any form of general
solicitation or advertising, such as media advertising or public seminars, (e)
the Company will be relying upon the representations contained in this Article
II in selling the Securities to Investor, and (f) the transferability of the
Securities will be subject to restrictions imposed by all applicable federal and
state security laws and the certificates evidencing such Securities may be
imprinted with a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that such registration
is not required."
2.6 Accredited Investor. Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D of the Securities Act.
2.7 No Violation or Conflict. The execution, delivery and performance
of this Subscription Agreement by the Investor will not (i) violate, conflict
with, or result in the breach, acceleration, default of termination of, or
otherwise give any other contracting party the right to terminate, accelerate,
modify or cancel any of the terms, provisions or conditions of any material
agreement or instrument to which the Investor is a party or by which it or its
assets are bound, or (ii) constitute a violation of any applicable law, rule or
regulation, or of any judgment, order, injunction, award or decree or any court,
administrative agency or other governmental authority applicable to it.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 SEC Filings. As of their respective filing dates with the
Securities and Exchange Commission (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 of 1933, and the Securities Exchange Act of
1934, both as amended, and the rules and regulations promulgated thereunder.
3.2 Corporate Status. The Company is duly incorporated, validly
existing and in good standing in the State of Delaware, with full corporate
power and authority to enter into this Subscription Agreement and to perform its
obligations hereunder.
-3-
3.3 Execution and Delivery. The Company has duly and validly executed
and delivered this Subscription Agreement, and, upon the acceptance, execution
and delivery of this Subscription Agreement by the Company, this Subscription
Agreement will be valid, binding and enforceable against the Company in
accordance with its terms.
3.4 No Violation or Conflict. Except for the receipt of the consent of
the Majority Stockholders under the Registration Rights Agreement, the
execution, delivery and performance of this Subscription Agreement by the
Company will not (i) violate, conflict with, or result in the breach,
acceleration, default of termination of, or otherwise give any other contracting
party the right to terminate, accelerate, modify or cancel any of the terms,
provisions or conditions of any material agreement or instrument to which the
Company is a party or by which it or its assets are bound, or (ii) constitute a
violation of any applicable law, rule or regulation, or of any judgment, order,
injunction, award or decree or any court, administrative agency or other
governmental authority applicable to it.
3.5 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
ARTICLE IV: CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of the Investor. The purchase by the
Investor of the Securities is subject to the following conditions:
4.1.1. The representations and warranties of the Company
contained herein shall be true and correct in all
material respects as of the Closing.
4.1.2. The Company shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.1.3. The Company shall have received on or before the
Closing a clean audit opinion (the "Audit Opinion")
from PricewaterhouseCoopers, LLP for the year ended
December 31, 2000.
4.1.4. The Company shall have delivered to the Investor at
the Closing a stock certificate or certificates
representing the Securities.
4.2 Conditions to the Obligations of the Company. The sale by the
Company of the Securities is subject to the following conditions:
4.2.1. The representations and warranties of the Investor
contained herein shall be true and correct in all
material respects as of the Closing.
-4-
4.2.2. The Investor shall have executed and delivered at the
Closing an Agreement to be Bound (in the form of
Exhibit A attached hereto) to the Registration Rights
Agreement.
4.2.3. The Company shall have received from the Investor at
the Closing payment of the Total Purchase Price by
wire transfer in immediately available funds.
ARTICLE V: MISCELLANEOUS
5.1 Successors and Assigns. Upon acceptance by the Company, the
provisions of this Subscription Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
5.2 Governing Law. This Subscription Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.3 Amendment. This Subscription Agreement may be amended only by a
written instrument signed by the Company and the Investor.
[Signatures on Following Page]
-5-
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at New York, New York this day of , 2001.
-------- -------- --- ----------
CITY STATE
THE INVESTOR:
Xxxxxx X. Xxxxxxxx
-------------------------------------------------------------
Please print or type legal name of Investor as it should
appear on the stock certificate and in the Company's records
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------------------
Sign here
Its:
---------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
Number of Shares of Common Stock
Subscribed For: 400,000
------------------------------------
Total Purchase Price: $ 400,000
--------------------------
Taxpayer I.D. Number or
Social Security Number:
---------------------------
Print or type address, telephone number and fax number
preferred for shareholder communications:
Address: c/o Kelso & Company
-----------------------------------------------------
000 Xxxx Xxxxxx, 00xx xxxxx
-------------------------------------------------------------
Xxx Xxxx, Xxx Xxxx
-------------------------------------------------------------
Telephone: (000) 000-0000
---------------------------------------------------
Fax: (000) 000-0000
---------------------------------------------------------
Accepted this ___ day of ______, 2001
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
--------------------------------------------------------
Title: Executive Vice President
-------------------------------------------------------
-6-
EXHIBIT A
AGREEMENT TO BE BOUND TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT TO BE BOUND TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated as of _______________, 2001 is by and between iXL Enterprises,
Inc., a Delaware corporation (the "Company"), and the stockholder listed on the
signature page hereto (the "Stockholder").
RECITALS
A. The Company has entered into an Amended and Restated Registration
Rights Agreement, dated as of October 28, 1999, among the Company and certain
other parties (as amended by that certain First Amendment to Amended and
Restated Registration Rights Agreement, dated as of November 2, 1999, the
"Registration Rights Agreement"), which addresses the registration of
Registrable Securities.
B. The Company has agreed to issue shares of validly issued, fully paid
and nonassessable common stock of the Company, $.01 par value (the "iXL Stock")
to the Stockholder contemporaneously herewith.
C. The Company and the Stockholder desire to make the Stockholder a
party to the Registration Rights Agreement.
In consideration of the parties entering into the agreements and
carrying out the transactions described in the Registration Rights Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Agreement by Stockholder. The Stockholder acknowledges receipt of,
and having read, a copy of the Registration Rights Agreement, which is
incorporated herein by reference. The Stockholder hereby accepts and agrees to
be bound as an Other Stockholder by, and further covenants and agrees that he
will comply with, all of the terms and conditions of the Registration Rights
Agreement (as it may be amended from time to time), as if he were an original
party thereto.
2. Agreement by Company. The Company hereby accepts the Stockholder as
a party to the Registration Rights Agreement as if the Stockholder were an
original party thereto. The Company further covenants and agrees that it will
treat the Stockholder as if he were an original party to the Registration Rights
Agreement, affording the Stockholder all applicable rights and privileges
thereunder.
-7-
3. Stockholder Deemed Party. The Stockholder is hereby deemed to be a
party to the Registration Rights Agreement as if originally named therein.
4. Headings; Interpretation; Incorporation. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation hereof. Words such as
"herein," "hereof," "hereto," "hereunder" or the like shall refer to this
Agreement as a whole. Any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
5. Definitions. Unless otherwise indicated, each capitalized term used
herein shall have the meaning specified in the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
IXL ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------------------------------
Title: Executive Vice President
--------------------------------------------------------
"STOCKHOLDER":
Xxxxxx X. Xxxxxxxx
--------------------------------------------------------------
Please print or type legal name of Investor as it should appear
on the stock certificate and in the Company's records
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------------------
Sign here
Its:
----------------------------------------------------------
If signatory is executing on behalf of an entity, please
indicate signatory's title or office with such entity
-8-
