EXHIBIT 10.33
IXL HOLDINGS, INC.
CLASS A CONVERTIBLE PREFERRED STOCK
SUBSCRIPTION AGREEMENT
THE INVESTOR IS REQUIRED TO XXXX BOXES TO INDICATE WHICH
REPRESENTATIONS AND WARRANTIES IT IS MAKING UNDER PART I HEREOF.
IXL Holdings, Inc.
Two Park Place
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
By executing this Subscription Agreement, Xxxxxxx X. Xxxxxx (the
"Investor") hereby irrevocably subscribes for 100 shares (the "Securities") of
Class A Convertible Preferred Stock, $.01 par value ("Class A Preferred Stock"),
of IXL Holdings, Inc. (the "Company"), for a total purchase price of $100,000.00
(the "Total Purchase Price"). The Investor has delivered herewith to the
Company payment of the Total Purchase Price.
This Subscription Agreement shall not be valid and binding on the Company
unless and until this Subscription Agreement is accepted, executed, and
delivered by the Company. If this Subscription Agreement is not accepted by the
Company, the purchase price paid by the Investor to the Company shall be
refunded to the Investor.
The Investor understands that the Securities may be acquired hereunder only
by investors who are able to make all required representations and warranties
under Part I and Part II below.
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REPRESENTATIONS AND WARRANTIES
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").
PART I: REPRESENTATIONS AS TO ACCREDITED INVESTOR STATUS
TO ESTABLISH THAT THE INVESTOR IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a) PROMULGATED UNDER THE SECURITIES ACT, THE INVESTOR MUST
XXXX AT LEAST ONE BOX BELOW, THEREBY MAKING THE REPRESENTATION SET
FORTH BESIDE THE MARKED BOX.
[_] The Investor is a natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of the Investor's
purchase exceeds $1,000,000.
[_] The Investor is a natural person who had an individual income in
excess of $200,000 in each of the two most recent years or joint
income with that person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching the same
income level in the current year.
[_] The Investor is a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or any other institution as
defined in Section 3(a)(5)(A) of the Securities Act.
[_] The Investor is a broker dealer registered pursuant to Section 15 of
the United States Securities Exchange Act of 1934, as amended.
[_] The Investor is an insurance company as defined in Section (2)(13) of
the Securities Act.
[_] The Investor is an investment company registered under the Investment
Company Act or a business development company as defined in Section
2(a)(48) of that Act.
[_] The Investor is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
U.S. Small Business Investment Act of 1958, as amended.
[_] The Investor is a plan established and maintained by a state within
the United States, one or more political subdivisions of such a state,
or any agency or
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instrumentality of such a state or its political subdivisions, for the
benefit of its employees, with total assets in excess of $5,000,000.
[_] The Investor is an employee benefit plan within the meaning of the
U.S. Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (i) the investment decision for which is made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which is either a
bank, savings and loan association, insurance company, or registered
investment advisor or (ii) which has total assets in excess of
$5,000,000 or (iii) which is a self-directed plan with investment
decisions made solely by persons that are Accredited Investors.
[_] The Investor is a private business development company as defined in
Section 202(a)(22) of the U.S. Investment Advisers Act of 1940.
[_] The Investor is an organization that is described in Section 501(c)(3)
of the U.S. Internal Revenue Code of 1986, as amended, a corporation,
a Massachusetts or similar business trust, or a partnership, in any
case that was not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000.
[X] The Investor is a director or executive officer (as defined in Rule
501(f) promulgated under the Securities Act) of the Company.
[_] The Investor is a trust with total assets of $5,000,000, not formed
for the specific purpose of acquiring the Securities, whose purchase
is directed by a sophisticated person as described in Rule
506(b)(2)(ii) promulgated under the Securities Act.
[_] The Investor is an entity in which all of the equity owners are
Accredited Investors.
PART II: ADDITIONAL REPRESENTATIONS
THE INVESTOR, BY SIGNING THIS SUBSCRIPTION AGREEMENT, WILL BE DEEMED
TO HAVE MADE ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN
PARAGRAPHS 1 THROUGH 11 BELOW.
1. The Investor acknowledges that the Investor has received a copy of (a)
the Registration Rights Agreement dated as of April 30, 1996 of the
Company (as amended, the "Registration Rights Agreement"), and (b) the
Second Amended and Restated Stockholders' Agreement dated December 17,
1997 of the Company (as amended, the "Stockholders' Agreement").
2. 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
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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.
3. The Investor has sought such accounting, legal and tax advice as the
Investor considered necessary to make an informed investment decision.
The Investor is experienced in investment and business matters (or has
been advised by an investment advisor who is so experienced), and is
aware of and can afford the risks of making such an investment,
including the risk of losing the Investor's entire investment.
4. 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. The financial condition of the Investor is such that the
Investor has no need for liquidity with respect to the Investor's
investment in the Securities and no need to dispose of any portion of
the Securities to satisfy any existing or contemplated undertaking or
indebtedness; and the overall commitment by the Investor to
investments which are not readily marketable is not disproportionate
to the Investor's net worth and will not become excessive as a result
of investment in the Securities.
5. The Investor understands that, except as described 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.
6. The Investor understands, represents, warrants and agrees that, except
as described in the Stockholders' Agreement, the Investor's Securities
are not transferable, that the Investor will not, directly or
indirectly, sell, assign, convey, hypothecate or otherwise transfer
the Investor's Securities (or any portion thereof or interest therein)
except in accordance with the terms of the Stockholders' Agreement and
that violation of the foregoing will cause such transfer to be void
and need not be recognized by the Company.
7. The Investor warrants that the Investor has knowledge and experience
in financial, investment and business matters and that the Investor is
capable of evaluating the merits and risks of an investment in the
Securities.
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8. The Investor has relied solely upon the Registration Rights Agreement,
the Stockholders' Agreement and 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.
9. The Investor expressly acknowledges that:
(a) 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 Investor is not dependent upon a current cash return with
respect to the Investor's investment in the Securities, and the
Investor understands that distributions are not required to be
made and that returns on an investment in the Securities may not
be realized for years.
(c) The Securities are being offered and sold to prospective
purchasers directly, and 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.
10. The Investor (i) if an individual, is at least 21 years of age; (ii)
if a partnership, is comprised of partners all of whom are at least 21
years of age; and (iii) if a corporation, partnership, trust or other
like entity, is authorized and otherwise duly qualified to purchase
and hold the Securities. The Investor has duly authorized, executed
and delivered this Subscription Agreement and understands that the
Company is not obligated to accept this Subscription Agreement and
that this Subscription shall be valid and binding on the Company only
upon acceptance by the Company. The Investor understands that if this
Subscription Agreement is accepted and executed by the Company, the
Investor will constitute a valid and legally binding obligation of the
Investor and the Company.
11. The Investor certifies under penalties of perjury that (i) the
Investor's taxpayer identification number (social security number for
an individual Investor) as set forth on the signature page hereof is
correct; (ii) the Investor's home address (in the case of an
individual) or office address (in the case of an entity) as set forth
on the signature page hereof is correct; and (iii) the Investor is not
subject to backup withholding either because the Investor has not been
notified by the Internal Revenue Service ("IRS") that the Investor is
subject to backup withholding as a result of a failure to report all
interest or dividends, or because the Investor has been notified by
the IRS that the Investor is no longer subject to backup
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withholding. If the Investor is subject to backup withholding,
Investor should cross through clause (iii) and check the following
box: [_]
MISCELLANEOUS
1. Successors and Assigns. Upon acceptance by the Company, this
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Subscription Agreement, and all of the obligations of the Investor hereunder,
and all of the representations and warranties by the Investor herein, shall be
binding upon the heirs, executors, administrators, personal representatives,
successors and assigns of the Investor.
2. Governing Law. This Subscription Agreement shall be construed in
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accordance with, and governed in all respects by, the laws of the State of
Delaware.
3. Indemnification. The Investor agrees to indemnify the Company, its
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officers and managers for any and all claims or losses (including attorneys'
fees) incurred by them as a result of the incorrectness of the Investor's
representations and warranties contained herein, including but not limited to,
claims arising under federal and state securities laws and common law claims.
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SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
CLASS A CONVERTIBLE PREFERRED STOCK OF
IXL HOLDINGS, INC.
Executed at Atlanta , GA this 1st day of September, 1998.
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CITY STATE
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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Social Security Number: ###-##-####
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000 (h)
Facsimile: 000-000-0000
Accepted this 25th day of August, 1998
IXL Holdings, Inc.
By: U. Xxxxxxx Xxxxx, Xx.
Title: Chairman and CEO
_______________________________________________________________________________
* If the Investor is a corporation, partnership, or an entity, please attach
a copy of the resolutions, trust instrument, partnership agreement or
similar document (or in lieu thereof, an opinion of counsel) showing the
corporation, trust, partnership or other entity has authority to purchase
the Shares and showing that the signatoty above may act on its behalf in
making this investment.
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