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EXHIBIT 10.65
WARRANT AGREEMENT
among
iXL Enterprises, Inc.
and
Delta Air Lines, Inc.
Dated as of
December 31, 1998
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WARRANT AGREEMENT
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This WARRANT AGREEMENT is dated as of December 31, 1998 (the "Agreement")
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and entered into by and among iXL Enterprises, Inc., a Delaware corporation (the
"Company"), and Delta Air Lines, Inc. ("Delta," and together with subsequent
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holders of the Warrants subject hereto, a "Holder").
WHEREAS, for good and valuable consideration, the Company is issuing to
Delta Warrants (the "Warrants") to purchase an aggregate of 500,000 shares
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(subject to adjustment as provided herein) of the Company's Class B Common
Stock, par value $.01 per share (the "Class B Common Stock") (the shares of
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Class B Common Stock issuable upon exercise of the Warrants being referred to
herein as the "Warrant Shares");
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NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
SECTION 1. Warrant Certificates. Simultaneously with the execution
hereof, the Company will issue and deliver to Delta a certificate or
certificates evidencing the Warrants (the "Warrant Certificates"). Such
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certificate or certificates shall be substantially in the form set forth as
Exhibit A attached hereto. Warrant Certificates shall be dated the date of
issuance by the Company.
SECTION 2. Execution of Warrant Certificates. Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board or its Chief
Executive Officer, President or any Vice President. Each Warrant Certificate
shall also be signed on behalf of the Company by its Secretary or an Assistant
Secretary.
SECTION 3. Restrictions on Transfer; Registration of Transfers and
Exchanges. Prior to any proposed transfer of the Warrants or the Warrant
Shares, unless such transfer is made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
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the transferring Holder will deliver to the Company an opinion of counsel,
reasonably satisfactory in form and substance to the Company, to the effect that
the Warrants or Warrant Shares, as applicable, may be sold or otherwise
transferred without registration under the Securities Act. Upon original
issuance thereof, and until such time as the same shall have been registered
under the Securities Act or sold pursuant to Rule 144 promulgated thereunder (or
any similar rule or regulation) each Warrant Certificate shall bear the legend
included on the first page of Exhibit A, unless in such opinion of counsel, such
legend is no longer required by the Act.
Subject to the conditions to transfer contained in the Second Amended and
Restated Stockholders' Agreement of iXL Enterprises, Inc. dated December 17,
1997, as amended (the "Stockholders' Agreement"), which shall apply to the
Holders of the Warrants as if such Holders were "Outside Investors," as defined
in the Stockholders' Agreement, the Company shall from time to time register the
transfer of any outstanding Warrant Certificates in the Warrant Register to be
maintained by the Company upon surrender thereof accompanied by a written
instrument
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or instruments of transfer in form reasonably satisfactory to the Company, duly
executed by the registered Holder or Holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee Holder(s) and the surrendered Warrant Certificate shall be canceled
and disposed of by the Company. Any attempted transfer in violation of the
Stockholders Agreement shall be null and void.
SECTION 4. Warrants; Exercise of Warrants. Subject to the terms of this
Agreement, each Holder shall have the right, which may be exercised at any time
during the period commencing on the date hereof and ending at 5:00 p.m., New
York City time, on the later of (i) June 30, 2000 or (ii) the date which is one
year after the effective date of a Qualified Public Offering (as defined in the
Stockholders' Agreement (the "Expiration Date"), to receive from the Company the
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number of fully paid and nonassessable Warrant Shares (and such other
consideration) which the Holder may at the time be entitled to receive on
exercise of such Warrants and payment of the Exercise Price for such Warrant
Shares. Each Warrant not exercised prior to 5:00 p.m., New York time, on the
Expiration Date shall become void and all rights thereunder and all rights in
respect thereof under this Agreement shall cease as of such time. No
adjustments as to dividends will be made upon exercise of the Warrants, except
as otherwise expressly provided herein.
The price at which each Warrant shall be exercisable (the "Exercise Price")
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shall be equal to $10.00 per share of Class B Common Stock.
A Warrant may be exercised upon surrender to the Company at its office
designated for such purpose of the Warrant Certificate or Certificates to be
exercised with the form of election to purchase attached thereto duly filled in
and signed, and upon payment to the Company of the Exercise Price for the number
of Warrant Shares in respect of which such Warrants are then exercised. Payment
of the aggregate Exercise Price shall be made, at the election of the Holder,
(i) in cash, by certified or official bank check payable to the order of the
Company, (ii) by delivering for surrender and cancellation to the Company
Warrants with an aggregate Surrender Value (as hereinafter defined), as of the
date of such exercise, equal to the Exercise Price for the Warrants being
exercised, or (iii) any combination thereof. For the purposes of this
paragraph, the "Surrender Value" of any Warrant is equal to the Fair Market
Value (as defined in the Stockholders' Agreement), as of the date of such
surrender, of the Warrant Shares issuable upon the exercise of such Warrant,
minus the Exercise Price of such Warrant.
Subject to the provisions of Section 5 hereof, upon such surrender of
Warrant Certificates and payment of the Exercise Price, the Company shall issue
and cause to be delivered, as promptly as practicable, to or upon the written
order of the Holder and in such name or names as such Holder may designate a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants (and such other consideration as may be
deliverable upon exercise of such Warrants) together with cash for fractional
Warrant Shares as provided in Section 9. The certificate or certificates for
such Warrant Shares shall be deemed to have been issued and the person so named
therein shall be deemed to have become a holder of record of such Warrant Shares
as of the date of the surrender of such Warrants and payment of the
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Exercise Price, irrespective of the date of delivery of such certificate or
certificates for Warrant Shares.
Each Warrant shall be exercisable, at the election of the Holder thereof,
either in full or from time to time in part and, in the event that a Warrant
Certificate is exercised in respect of fewer than all of the Warrant Shares
issuable on such exercise at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued and delivered pursuant to the provisions of this Section and of Section 2
hereof.
All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled and disposed of by the Company. The Company shall keep copies of this
Agreement and any notices given or received hereunder available for inspection
by the Holders during normal business hours at its office.
SECTION 5. Payment of Taxes. The Company will pay all documentary stamp
taxes and other governmental charges (excluding all foreign, federal or state
income, franchise, property, estate, inheritance, gift or similar taxes) in
connection with the issuance or delivery of the Warrants hereunder, as well as
all such taxes attributable to the initial issuance or delivery of Warrant
Shares upon the exercise of Warrants and payment of the Exercise Price. The
Company shall not, however, be required to pay any tax that may be payable in
respect of any subsequent transfer of the Warrants or any transfer involved in
the issuance and delivery of Warrant Shares in a name other than that in which
the Warrants to which such issuance relates were registered, and, if any such
tax would otherwise be payable by the Company, no such issuance or delivery
shall be made unless and until the person requesting such issuance has paid to
the Company the amount of any such tax, or it is established to the reasonable
satisfaction of the Company that any such tax has been paid.
SECTION 6. Mutilated or Missing Warrant Certificates. If a mutilated
Warrant Certificate is surrendered to the Company, or if the Holder of a Warrant
Certificate claims and submits an affidavit or other evidence satisfactory to
the Company to the effect that the Warrant Certificate has been lost, destroyed
or wrongfully taken, the Company shall issue a replacement Warrant Certificate.
If reasonably required by the Company, such Holder must provide an indemnity
bond, or other form of indemnity, sufficient in the reasonable judgment of the
Company to protect the Company from any loss which it may suffer if a Warrant
Certificate is replaced. If Delta or any other institutional Holder (or nominee
thereof) is the owner of any such lost, stolen or destroyed Warrant Certificate,
then the affidavit of an authorized officer of such owner, setting forth the
fact of loss, theft or destruction and of its ownership of the Warrant
Certificate at the time of such loss, theft or destruction shall be accepted as
satisfactory evidence thereof and no further indemnity shall be required as a
condition to the execution and delivery of a new Warrant Certificate other than
the unsecured written agreement of such owner to indemnify the Company.
SECTION 7. Reservation of Warrant Shares. The Company shall at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Class B Common Stock or its authorized and issued
Class B Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon
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exercise of Warrants, the maximum number of shares of Class B Common Stock which
may then be deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed, any transfer agent for the Class B Common
Stock and each transfer agent for any shares of the Company's capital stock
issuable upon the exercise of any of the Warrants (collectively, the "Transfer
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Agent") will be irrevocably authorized and directed at all times to reserve such
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number of authorized shares as shall be required for such purpose. The Company
shall keep a copy of this Agreement on file with any such Transfer Agent. The
Company will supply any such Transfer Agent with duly executed certificates for
such purposes and will provide or otherwise make available all other
consideration that may be deliverable upon exercise of the Warrants. The
Company will furnish any such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each Holder
pursuant to Section 10 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 8 hereof to reduce the Exercise Price below the then par value of the
Warrant Shares, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise Price
as so adjusted.
The Company covenants that all Warrant Shares and other capital stock
issued upon exercise of Warrants will, upon payment of the Exercise Price
therefor and issue thereof, be validly authorized and issued, fully paid,
nonassessable, free of preemptive rights and free, subject to Section 5 hereof,
from all taxes, liens, charges and security interests with respect to the issue
thereof, but such Warrant Shares shall be subject to the applicable terms and
conditions of the Stockholders Agreement.
SECTION 8. Adjustment of Exercise Price and Warrant Number. The number of
shares of Class B Common Stock issuable upon the exercise of each Warrant (the
"Warrant Number") is initially one. The Warrant Number is subject to adjustment
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from time to time upon the occurrence of the events enumerated in, or as
otherwise provided in, this Section 8.
(a) Adjustment for Change in Capital Stock
If the Company:
(1) pays a dividend or makes a distribution on its Class B Common
Stock in shares of its Class B Common Stock;
(2) subdivides or reclassifies its outstanding shares of Class B
Common Stock into a greater number of shares;
(3) combines or reclassifies its outstanding shares of Class B
Common Stock into a smaller number of shares; or
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(4) issues by reclassification of its Class B Common Stock any
shares of its capital stock (other than reclassification arising
solely as a result of a change in the par value or no par value of the
Class B Common Stock);
then the Warrant Number and the Exercise Price in effect immediately prior to
such action shall be proportionately adjusted so that the holder of any Warrant
thereafter exercised shall receive the aggregate number and kind of shares of
capital stock of the Company which it would have received immediately following
such action if such Warrant had been exercised immediately prior to such action
for the same aggregate consideration that such holder would have paid if such
Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed above
shall occur.
The Company shall not issue shares of Class B Common Stock as a dividend or
distribution on any class of capital stock other than Class B Common Stock
unless (i) the Warrant Holders also receive such dividend or distribution on a
ratable basis or (ii) the appropriate adjustment to the Warrant Number and
Exercise Price is made under this Section 8.
(b) Notice of Adjustment
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Whenever the Warrant Number is adjusted, the Company shall provide the
notices required by Section 10 hereof.
(c) Voluntary Increase
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The Company from time to time may increase the Warrant Number by any amount
for any period of time (including, without limitation, permanently) if the
period is at least 20 Business Days and if the increase is irrevocable during
the period. Whenever the Warrant Number is increased, the Company shall mail to
the Holders a notice of the increase. The Company shall mail the notice at
least 15 days before the date the increased Warrant Number takes effect. The
notice shall state the increased Warrant Number and the period it will be in
effect.
An increase of the Warrant Number under this Subsection (c) (other than a
permanent increase) does not change or adjust the Warrant Number otherwise in
effect for purposes of subsection (a) of this Section 8.
(d) Reorganizations
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In case of any capital reorganization, other than in the cases referred to
in Section 8(a) hereof, or the consolidation or merger of the Company with or
into another
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corporation (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification of the
outstanding shares of the Company's capital stock into shares of other stock or
other securities or property), or the sale of the property of the Company as an
entirety or substantially as an entirety (collectively, such actions being
hereinafter referred to as "Reorganizations"), there shall thereafter be
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deliverable upon exercise of any Warrant (in lieu of the number of shares of
Class B Common Stock theretofore deliverable) the number of shares of stock or
other securities or property to which a holder of the number of shares of Class
B Common Stock that would otherwise have been deliverable upon the exercise of
such Warrant would have been entitled upon such Reorganization if such Warrant
had been exercised in full immediately prior to such Reorganization. In case of
any Reorganization, appropriate adjustment, as determined in good faith by the
Board of Directors of the Company, whose determination shall be described in a
duly adopted resolution certified by the Company's Secretary or Assistant
Secretary, shall be made in the application of the provisions herein set forth
with respect to the rights and interests of Holders so that the provisions set
forth herein shall thereafter be applicable, as nearly as possible, in relation
to any shares or other property thereafter deliverable upon exercise of
Warrants.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof, (i) notice of such Reorganization
shall be given to each of the Holders of the Warrants, and (ii) the successor
corporation (if other than the Company) resulting from such Reorganization or
the corporation purchasing or leasing such assets or other appropriate
corporation or entity shall expressly assume, by a supplemental Warrant
Agreement or other acknowledgement executed and delivered to the Holder(s), the
obligation to deliver to each such Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such Holder may be
entitled to purchase, and all other obligations and liabilities under this
Agreement.
(e) Form of Warrants
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Irrespective of any adjustments in the Exercise Price or the number or kind
of shares purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement but shall nevertheless be exercisable for the adjusted number of
Warrant Shares at the adjusted Exercise Price.
SECTION 9. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 9,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall, pay an amount in cash equal to the fair market value (as
determined in good faith by the Board of Directors) of the Warrant Share so
issuable, multiplied by such fraction.
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SECTION 10. Notices to Warrant Holders. Upon any adjustment pursuant to
Section 8 hereof, the Company shall promptly thereafter (i) cause to be filed
with the Company a certificate of an officer of the Company setting forth the
Warrant Number and Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based, and (ii) cause to be given to each of the Holders at its
address appearing on the Warrant Register written notice of such adjustments.
Where appropriate, such notice may be given in advance and included as a part of
the notice required to be mailed under the other provisions of this Section 10.
In case:
(a) The Company shall authorize the issuance to all holders of shares of
Class B Common Stock of rights, options or warrants to subscribe for or purchase
shares of Class B Common Stock or of any other subscription rights or warrants;
(b) The Company shall authorize the distribution to all holders of shares
of Class B Common Stock of assets, including cash, evidences of its
indebtedness, or other securities;
(c) of any consolidation or merger to which the Company is a party and
for which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Class B Common Stock
issuable upon exercise of the Warrants (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or a tender offer or exchange offer for
shares of Class B Common Stock;
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company; or
(e) the Company proposes to take any action that would require an
adjustment to the Warrant Number pursuant to Section 9 hereof;
then the Company shall cause to be given to each of the Holders at its address
appearing on the Warrant Register, at least 20 days prior to the applicable
record date hereinafter specified, or the date of the event in the case of
events for which there is no record date, in accordance with the provisions of
Section 11 hereof, a written notice stating (i) the date as of which the holders
of record of shares of the capital stock of the Company to be entitled to
receive any such rights, options, warrants or distribution are to be determined,
or (ii) the initial expiration date set forth in any tender offer or exchange
offer for shares of the capital stock of the Company, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of the capital stock of
the Company shall be entitled to exchange such shares for securities or other
property, if any, deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up. The failure to
give the notice required by this Section 10 or any defect therein shall not
affect
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the legality or validity of any distribution, right, option, warrant,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up, or the vote upon any action.
Nothing contained in this Agreement or in any Warrant Certificate shall be
construed as conferring upon the Holders (prior to the exercise of such
Warrants) the right to vote or to consent or to receive notice as shareholder in
respect of the meetings of shareholders or the election of Directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company; provided, however, that nothing in the foregoing provision is intended
to detract from any rights explicitly granted to any Holder hereunder.
SECTION 11. Notices to the Company and Warrant Holders. All notices and
other communications provided for or permitted hereunder shall be made by hand-
delivery, first-class mail, telex, telecopier, or overnight air courier
guaranteeing next day delivery:
(a) if to Delta, to the address specified on the signature page executed
by Delta; and
(b) if to the Company, iXL Enterprises, Inc., 0000 Xxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx, 00000, Telecopy no. (000) 000-0000, Attention: Xxxxx X.
Xxxxxx, with a copy to Xxxxxx & Xxxxxx PC, One Buckhead Plaza, 0000 Xxxxxxxxx
Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Telecopy No. (000) 000-0000,
Attention: Xxxxx X. Xxxxxxxxx, Esq., and with an additional copy to Xxxxx &
Company, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxx XX, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed (so long as a
fax copy is sent and receipt acknowledged within two business days after
mailing); when answered back if telexed; when receipt acknowledged, if
telecopied; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery. The parties may
change the addresses to which notices are to be given by giving five days' prior
written notice of such change in accordance herewith.
SECTION 12. Certain Supplements and Amendments. The Company may from time
to time supplement or amend this Agreement without the approval of any Holders
in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other provision
herein; provided that any such supplement or amendment shall not in any way
adversely affect the interests of the Holders.
SECTION 13. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company shall bind and inure to the benefit of its
respective successors and assigns hereunder.
SECTION 14. Termination. This Agreement shall terminate if all Warrants
have been exercised or shall have expired or been canceled pursuant to this
Agreement.
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SECTION 15. GOVERNING LAW; SUBMISSION TO JURISDICTION; Waiver of Jury
Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF GEORGIA (PROVIDED THAT DETERMINATIONS RELATING TO
CORPORATE LAW SHALL BE CONSTRUED IN ACCORDANCE WITH THE DELAWARE GENERAL
CORPORATION LAW). THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY GEORGIA STATE COURT SITTING IN XXXXXX COUNTY, GEORGIA OR ANY
FEDERAL COURT SITTING IN XXXXXX COUNTY, GEORGIA IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE WARRANTS, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AGREES THAT
IT WILL NOT COMMENCE ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OTHER
JURISDICTION. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING,
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A WARRANT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
EACH OF THE PARTIES HERETO HEREBY WAIVES THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS, OR ANY DEALINGS BETWEEN THEM REALTING
RELATING TO THE SUBJECT MATTER OF DELTA'S INVESTMENT IN THE COMPANY CONTEMPLATED
HEREBY. THE SCOPE OF THIS JURY TRIAL WAIVER SHALL BE LIMITED TO DISPUTES
BETWEEN THE COMPANY AND DELTA AND SHALL NOT EXTEND TO DISPUTES BETWEEN THE
COMPANY AND ANY OTHER PERSON.
SECTION 16. Benefits of This Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company and the
Holders any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 18. Amendments and Waivers. Subject to Section 13, the Company
agrees it will not solicit, request or negotiate for or with respect to any
proposed waiver or amendment of any of the provisions of this Agreement or any
Warrant unless each Holder (irrespective of the amount of Warrants then owned by
it) shall substantially concurrently be informed thereof by the
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Company and shall be afforded the opportunity of considering the same and shall
be supplied by the Company with sufficient information (including any offer of
remuneration) to enable it to make an informed decision with respect thereto
which information shall be the same as that supplied to each other Holder. The
Company will not, directly or indirectly, pay or cause to be paid any
remuneration whether by way of supplement or additional interest fee or
otherwise, to any Holder as consideration for or as an inducement to the
entering into by any Holder of any waiver or amendment of any of the terms and
provisions of this Agreement or any Warrant unless such remunerations is
concurrently paid on the same terms, ratably to each Holder whether or not such
Holder signs such waiver or consent, provided that the foregoing is not intended
to preclude the adoption of any amendment or the giving of any waiver by the
Holders of a majority of the Warrants to the extent permitted by the other
provisions of this Section 19.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed as of the day and year first above written.
iXL ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Executive Vice President
Addresses for Notices:
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Law Department DELTA AIR LINES, INC.
Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx By: Xxxxxx X. Xxxxxx
Xxxxxxx, Xxxxxxx 00000 -----------------------------------
ATTENTION: Senior Vice- Name: Xxxxxx X. Xxxxxx
President, General Counsel Title: EVP and Chief Financial Officer
Telecopy No.: (000) 000-0000
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EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
DECEMBER 31, 1998, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE ACT, OR IN COMPLIANCE WITH RULE 144 OR
PURSUANT TO ANOTHER EXEMPTION THEREFROM. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO A WARRANT AGREEMENT DATED AS OF DECEMBER 31, 1998,
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND DELTA AIR LINES, INC.
THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN SUCH
AGREEMENT AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF THIS
CERTIFICATE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH
TRANSFER. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
THE SHARES ISSUABLE UPON EXERCISE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE PREFERENCES, POWERS, QUALIFICATIONS AND RIGHTS OF
EACH CLASS AND SERIES AS SET FORTH IN THE COMPANY'S CERTIFICATE OF
INCORPORATION. THE COMPANY WILL FURNISH A COPY OF THE CERTIFICATE OF
INCORPORATION TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST.
500,000 Warrants
Warrant Certificate
iXL Enterprises, Inc.
This Warrant Certificate certifies that Delta Air Lines, Inc., or
registered assigns, is the registered holder of the number of Warrants (the
"Warrants") set forth above to purchase Class B Common Stock, par value $.01 per
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share (the "Class B Common Stock"), of iXL Enterprises, Inc., a Delaware
--------------------
corporation (the "Company"). Each Warrant entitles the Holder upon exercise to
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receive from the Company one fully paid and nonassessable share of Class B
Common Stock (a "Warrant Share"), at an exercise price (the "Exercise Price") of
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$10.00 payable in lawful money of the United States of America, upon surrender
of this Warrant Certificate and payment of the Exercise Price at the office of
the Company designated for such purpose, but only subject to the conditions set
forth herein and in the Warrant Agreement referred to hereinafter. The number
of Warrant Shares issuable upon exercise of the Warrants and the Exercise Price
are subject to adjustment upon the occurrence of certain events, as set forth in
the Warrant Agreement. Each Warrant is exercisable at any time during the
period commencing on the date hereof and ending at
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5:00 p.m., New York City time, on the later of (i) June 30, 2000 or (ii) the
date which is one year after the effective date of a Qualified Public Offering.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants, and are issued or to be issued pursuant to a
Warrant Agreement dated as of December {__}, 1998 (the "Warrant Agreement"),
-----------------
duly executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders or holder" meaning the registered holders or registered holder) of the
-------- ------
Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof
upon written request to the Company. Capitalized terms used and not defined
herein shall have the meaning ascribed thereto in the Warrant Agreement.
The holder of Warrants evidenced by this Warrant Certificate may
exercise such Warrants under and pursuant to the terms and conditions of the
Warrant Agreement by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon (and by this reference made a part hereof)
properly completed and executed, together with payment of the Exercise Price
made, at the election of the Holder, (i) in cash, by certified or official bank
check payable to the order of the Company, (ii) by delivering for surrender and
cancellation to the Company Warrants with an aggregate Surrender Value (as
defined in Section 4 of the Warrant Agreement), as of the date of such exercise,
equal to the Exercise Price for the Warrants being exercised, or (iii) any
combination thereof. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued by the Company to the holder
hereof or its registered assignee a new Warrant Certificate evidencing the
number of Warrants not exercised.
Warrant Certificates, when surrendered at the office of the Company by
the registered holder thereof in person or by legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Subject to the terms and conditions of the Warrant Agreement, upon due
presentation for registration of transfer of this Warrant Certificate at the
office of the Company a new Warrant Certificate or Warrant Certificates of like
tenor and evidencing in the aggregate a like number of Warrants shall be issued
to the transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
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IN WITNESS WHEREOF, iXL Enterprises, Inc. has caused this Warrant
Certificate to be signed by its Chairman of the Board, President or Vice
President and by its Secretary or Assistant Secretary.
Dated: December 31, 1998
iXL ENTERPRISES, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
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FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive __________ shares of Class B
Common Stock and herewith tenders payment for such shares to the Company in the
form of [a certified or official bank check payable to the order of the Company
in the amount of $_____, [and] Warrants to purchase __________ Warrant Shares
with an aggregate Surrender Value (as defined in Section 4 of the Warrant
Agreement) of $__________].
The undersigned requests that a certificate for such shares be
registered in the name of _______________, whose address is
_______________________________ and that such shares be delivered to
__________________, whose address is ___________________________.
If said number of shares is less than all of the shares of Class B
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of ________________________, whose address is
_______________________________, and that such Warrant Certificate be delivered
to _____________________, whose address is ________________________________.
Signature(s):
--------------------------------------------------
NOTE: The above signature(s) must correspond with the
name written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
If this Warrant is held of record by two or more
joint owners, all such owners must sign.
Date: ____________
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FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant Certificate)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto
_________________________ whose address is _________________________ and whose
social security number or other identifying number is _________________________,
the within Warrant Certificate, together with all right, title and interest
therein and to the Warrants represented thereby, and does hereby irrevocably
constitute and appoint _____________________, attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Signature(s):
----------------------------------------------
NOTE: The above signature(s) must correspond with the
name written upon the face of this Warrant
Certificate in every particular, without alteration
or enlargement or any change whatever. If this
Warrant is held of record by two or more joint
owners, all such owners must sign.
Date: ____________
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