Exhibit 10.9
iXL Enterprises, Inc.
0000 Xxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
as of Xxxxxxxx 0, 0000
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Ladies and Gentlemen:
iXL Enterprises, Inc. (the "Company"), hereby agrees to retain you,
Xxxxx & Company, L.P. ("Xxxxx"), to provide consulting and advisory services to
the Company in connection with the Company's initial public offering ("IPO") of
its common stock, par value $0.01 per share (the "Common Stock"), pursuant to a
registration statement on Form S-1 (the "Registration Statement") to be filed
with the U.S. Securities and Exchange Commission (the "Commission").
In consideration of providing such services, the Company will pay a
consulting fee to Xxxxx equal to $750,000. Such fee shall be paid in shares of
the Common Stock (the "Fee Shares"), valued at the gross IPO offering price to
the public, and shall be paid upon the closing of the IPO.
Xxxxx represents and warrants to the Company, as of the date hereof,
that: (i) Xxxxx is acquiring the Fee Shares solely for its own account or for
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the account of one or more of its subsidiaries or affiliates and not as nominee
or agent for any other person and not with a view to, or for offer or sale in
connection with, any current distribution thereof (within the meaning of the
Securities Act of 1993, as amended (the "Securities Act")) that would cause the
original acquisition of the Fee Shares to be in violation of the securities laws
of the United States of America or any state thereof, without prejudice,
however, to its right at all times to sell or otherwise dispose of all or any
part of such Fee Shares pursuant to a registration statement under the
Securities Act or pursuant to an exemption from the registration requirements of
the Securities Act, and subject, nevertheless, to the disposition of its
property being at all times within its control and (ii) Xxxxx is knowledgeable,
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sophisticated and experienced in business and financial matters and in investing
in business enterprises; it has previously invested in securities similar to the
Fee Shares and it acknowledges that the Fee Shares have not been registered
under the Securities Act and understands that the Fee Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
such sale is permitted pursuant to an available exemption from such registration
requirement; it is able to bear the economic risk of its investment in the Fee
Shares and is presently able to afford the complete loss of such investment; and
it is an "accredited investor" as defined in Regulation D promulgated under the
Securities Act.
The Company will indemnify Xxxxx and its affiliates, and their
respective officers, directors, partners, employees, agents and control persons
(as such term is used in the Securities Act and the rules and regulations
thereunder) to the full extent lawful against any and all claims, losses and
expenses as incurred (including all reasonable fees and disbursements of any
such indemnitee's counsel and other out-of-pocket expenses incurred in
connection with the investigation of and preparation for any such pending or
threatened claims and any litigation or other proceedings arising therefrom)
arising out of any services rendered by Xxxxx hereunder, provided, however,
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there shall be excluded from such indemnification any such claim, loss or
expense that is based upon any action or failure to act by Xxxxx that is found
in a final judicial determination to constitute gross negligence or intentional
misconduct on Xxxxx'x part. The Company will advance costs and expenses,
including attorney's fees, incurred by any such indemnitee in defending any such
claim in advance of the final disposition of such claim upon receipt of an
undertaking by or on behalf of such indemnitee to repay amounts so advanced if
it shall ultimately be determined that such indemnitee is not entitled to be
indemnified by the Company pursuant to this Agreement.
If the indemnification provided for in the prior paragraph is for any
reason unavailable or insufficient to hold Xxxxx and its affiliates, and their
respective officers, directors, partners, employees, agents and control persons
harmless in respect of any and all claims, losses and expenses referred to
therein, then the Company shall contribute to the aggregate amount of such
claims, losses and expenses incurred by Xxxxx, as incurred, (i) in such
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proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and Xxxxx on the other hand from the IPO and the
performance by Xxxxx of its services under this Agreement or (ii) if the
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allocation referred to in clause (i) is not permitted by applicable law, in such
proportion as is appropriate reflect not only the relative benefits referred to
in clause (i) above, but also the relative fault of the
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Company on the one hand and of Xxxxx on the other hand in connection with the
basis for the action which resulted in such claims, losses or expenses, as well
as any other equitable considerations.
The Company's obligations set forth in this Agreement shall survive
the payment made to Xxxxx pursuant to paragraph two.
This agreement shall be governed by the laws of the State of New York.
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If you are in agreement with the foregoing, kindly so indicate by
signing a counterpart of this letter, whereupon it will become a binding
agreement between us.
Very truly yours,
iXL ENTERPRISES, INC.
By: /s/ M. Xxxxx Xxxxxxxx
_______________________________________________
Name: M. Xxxxx Xxxxxxxx
Title: Executive Vice President
Agreed and accepted as of
February 5, 1999.
XXXXX & COMPANY, L.P.
By: Xxxxx & Companies, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx XX
________________________________________________________
Name: Xxxxx X. Xxxxxxx XX
Title: Vice President and General Counsel
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