EXHIBIT 10.61
FORM OF INVESTMENT AGREEMENT
INVESTORS AGREEMENT, dated as of _____, 1999, among Consumer Financial
Network, Inc. (the "Company"), iXL Enterprises, Inc. ("iXL") and General
Electric Capital Corporation ("GECC") and GE Capital Equity Investments, Inc.
(the "Investors").
WHEREAS, certain of the Investors have entered into a Stock Purchase
Agreement with the Company pursuant to which they are purchasing on the date
hereof, an aggregate of 16,190,475 shares of Series B Preferred Stock of the
Company;
WHEREAS, GECC holds up to 13,333,334 shares of Series A Preferred Stock of
the Company;
WHEREAS, the parties hereto have entered into an Amended and Restated
Stockholders' Agreement, dated as of the date hereof (the "Stockholders'
Agreement");
WHEREAS, the parties desire to modify and supplement certain provisions of
the Stockholders' Agreement and provide for additional covenants and agreements
relating to the shares of Series A Preferred Stock and Series B Preferred Stock
(collectively the "Preferred Stock") held by the Investors and the shares of
common stock of the Company, par value $.01 per share (the "Common Stock"); into
which the Preferred Stock is convertible;
WHEREAS, any capitalized term used herein without definition shall have
the meaning specified in the Stockholders Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Restrictions on Issuances of Securities. The Company shall not issue
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or otherwise Transfer any of its equity securities without the prior written
consent of the Investors except as otherwise expressly provided in this Section
1.
(a) The provisions of this Section 1 shall not prohibit the Company
from issuing or otherwise Transferring equity securities in one or more
transactions constituting, in the aggregate for all issuances or Transfers by
the Company after the date hereof, not more than either 20% of the total
outstanding equity interests in the Company or 20% of the outstanding voting
interests in the Company without the consent of the Investors. Notwithstanding
the foregoing, the consent of the Investors shall be required for any issue or
Transfer of equity securities by the Company to any of the entities listed as
"Restricted Entities" on the Schedule of Potential Investors delivered by the
Investors to the Company and iXL on April __, 1999 provided that the Company
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shall provide each of the Investors with written notice of any proposed issuance
or Transfer to any such
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person or entity in reasonable detail (which notice shall specify that failure
to object to such issuance or Transfer within 10 business days after receipt of
such notice will be deemed consent thereto under this Section 1) and if no
Investor objects to such proposed issuance in writing to the Company within such
10 business day period, then the Investors shall be deemed to have granted such
consent.
(b) If the Company proposes to issue or Transfer equity securities in
one or more transactions constituting, in the aggregate for all issuances or
Transfers by the Company (including, without limitation, those permitted under
Section 1(a)) after the date hereof, more than either 20% of the total
outstanding equity interests in the Company or 20% of the total outstanding
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voting interests in the Company, but not more than 80% of the total outstanding
equity interests in the Company or 80% of the total outstanding voting interests
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in the Company, then the Company must obtain the prior written consent of the
Investors thereto, provided that the Company shall provide each of the Investors
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with written notice of any such proposed issuance or Transfer to any such person
or entity in reasonable detail (which notice shall specify that failure to
object to such issuance or Transfer within 10 business days after receipt of
such notice will be deemed consent thereto under this Section 1) and if no
Investor objects to such proposed issuance or Transfer in writing to the Company
within such 10 business day period, then the Investors shall be deemed to have
granted such consent. Notwithstanding the foregoing, the Company shall have the
right to issue or Transfer equity securities in one or more transactions
constituting in the aggregate not more than 20% of the Company's total
outstanding equity or voting securities (which when taken together with any
issuances pursuant to Section 1(a) and this Section 1(b) would constitute, in
the aggregate, not more than 40% of the Company's equity or voting securities)
if such equity securities are issued or Transferred to one of the Pre-Approved
Investors set forth on the Schedule of Potential Investors referred to in
Section 1(a).
(c) The provisions of this Section 1 shall not prohibit the Company
from issuing or otherwise Transferring to one or more Buyers in one or more
Organic Change transactions subject to Section 2.3 of the Stockholders
Agreement, equity securities constituting, in the aggregate, more than 80% of
the Company's total outstanding equity or voting securities (such percentage of
equity securities so Transferred being the "Applicable Percentage") if not later
than the consummation of such issuance or Transfer, (i) the proceeds from such
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issuances or Transfers are used to redeem equity securities from the Company's
equity holders on a pro rata basis (except as provided below), (ii) not less
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than the Applicable Percentage of the equity securities of the Company held by
the GE Investors are so redeemed, (iii) the Sale Proceeds (as defined in Section
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3(b)) attributable to each redemption, pursuant to clause (ii) above and clause
(vi) below, of Series B Preferred Stock (and with respect to Series B Preferred
Stock that has already
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been converted, any Common Stock issued upon conversion
shall represent at least a 35% internal rate of return to such Investor in
respect of the Series B Preferred Stock (and the Common Stock issued upon
conversion of any thereof) so redeemed, (iv) the aggregate proceeds received by
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the Investors pursuant to clause (ii) above represent at least a $50 million
gain on the shares being redeemed, (v) the Sale Proceeds attributable to each
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redemption pursuant to clause (ii) above and clause (vi) below, upon such
conversion shall be paid to each Investor in cash or Marketable Securities (as
defined in Section 3) to the extent of the Sale Proceeds ensuring compliance
with subsections (iii) and (iv) above and (vi) if any of the equity securities
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of the Company held by an Investor would not otherwise be redeemed on the terms
described in clause (iii) above, such Investor shall be given the option (which
must be exercised) to either (x) require that all (but not less than all) of
such Investor's remaining equity interests in the Company be redeemed by the
Company not later than the consummation of the related Organic Change for the
same per share redemption price, and on the same terms, as is described in
clauses (i) and (iii) above or (y) as to any Preferred Stock that the Investor
does not elect to be so redeemed, convert such Preferred Stock into Common Stock
upon the closing of the related Organic Change in accordance with Section 4(a)
of the Series A or B Certificate of Designation. The option referred to in
clause (iv) above shall be exercised by such Investor within 15 business days
after receipt by such Investor of notice from the Company describing such option
and the circumstances giving rise thereto, together with all information that
the Investor may reasonably request in order to enable such Investor to make a
complete and informed decision with respect thereto.
(d) The provisions of this Section 1 shall not apply to any equity
securities issued by the Company in a Qualified Public Offering or to the
issuance of any Excluded Shares (as defined in Section 10 hereof) except for any
issuance described in paragraph (v) of such definition. All calculations
relating to proposed issuance or Transfer of the Company's equity securities for
purposes of this Section 1 shall be determined on a pro forma basis, giving
effect to the proposed issuance. In determining the respective percentages of
equity or voting securities that are (or will after such issuance be deemed)
outstanding for purposes of this Section 1, securities, warrants or other rights
that are, or in the future may become, exercisable or convertible into equity
securities of the Company will be evaluated under 1(a), (b) and (c) above on
both pre-conversion and post-conversion basis, with the greater percentage
threshold achieved being the one that applies; provided that any such
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securities, warrants or other rights that are outstanding and not the subject of
the proposed issuance or Transfer by the Company and that are either not at the
time exercisable or convertible or are not "in the money" will only be evaluated
under 1(a), (b) and (c) on a pre-conversion basis. The percentage calculations
for purposes of this Section 1 shall be made independently of any of the
Company's equity securities purchased by the Investors pursuant to their
preemptive rights set forth
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in Section 5 hereof. Any "Transfer" by the Company
for purposes of this Section 1 shall not include the registration by the
Company, in its capacity as a transfer agent with respect to equity securities
of the Company, of any Transfers of equity securities by any equity holders of
the Company. For all purposes of this Agreement, "equity securities" shall
include, without limitation, convertible debt.
2. Restrictions on Sales by iXL. iXL (which, for purposes of this Section
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2, shall be deemed to include its affiliates) shall not Transfer any of its
equity securities in the Company without the prior written consent of the
Investors except as provided in this Section 2.
(a) The provisions of this Section 2 shall not prohibit iXL from
Transferring equity securities of the Company in one or more transactions
constituting, in the aggregate for all Transfers by the Company after the date
hereof, not more than either 20% of the total outstanding equity interests in
the Company or 20% of the outstanding voting interests in the Company without
the consent of the Investors. Notwithstanding the foregoing, the consent of the
Investors shall be required for any Transfer of the Company's equity securities
by iXL to any of the entities listed as "Restricted Entities" on the Schedule of
Potential Investors referred to in Section 1(a) hereof; provided that iXL shall
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provide each of the Investors with written notice of any proposed Transfer to
any such person or entity in reasonable detail (which notice shall specify that
failure to object to such Transfer within 10 business days after receipt of such
notice will be deemed consent thereto under this Section 2) and if no Investor
objects to such proposed Transfer in writing to the iXL within such 10 business
day period, then the Investors shall be deemed to have granted such consent.
(b) If iXL proposes to Transfer equity securities of the Company in one or
more transactions constituting in the aggregate for all Transfers by iXL
(including, without limitation, those permitted under Section 2(a)) after the
date hereof, more than either 20% of the total outstanding equity interests in
the Company or 20% of the total outstanding voting interests in the Company, but
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not more than 80% of the total outstanding equity interests in the Company or
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80% of the total outstanding voting interests in the Company, then iXL must
obtain the prior written consent of the Investors thereto, provided that iXL
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shall provide each of the Investors with written notice of any such proposed
Transfer to any such person or entity in reasonable detail (which notice shall
specify that failure to object to such Transfer within 10 business days after
receipt of such notice will be deemed consent thereto under this Section 2) and
if no Investor objects to such proposed Transfer in writing to the Company
within such 10 business day period, then the Investors shall be deemed to have
granted such consent. Notwithstanding the foregoing, iXL shall have the right
to sell equity securities of the Company in one or more
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transactions constituting in the aggregate not more than 20% of the Company's
equity or voting securities (which, when taken together with any sales pursuant
to Section 2(a) and this Section 2(b) would constitute, in the aggregate, not
more than 40% of the Company's equity or voting securities) if such equity
securities are sold to one of the Pre-Approved Investors set forth on the
Schedule of Potential Investors referred to in Section 1(a) hereof.
(c) The provisions of this Section 2 shall not prohibit iXL from
Transferring, pursuant to Section 2.2 or 2.3 of the Stockholders Agreement,
equity securities to one or more Buyers in one or more transactions
constituting, in the aggregate, more than 80% of the Company's total outstanding
equity or voting securities pursuant to Section 2.2 or 2.3 of the Stockholders
Agreement and require the Investors to participate in such sale on a pro rata
basis in accordance with Section 2.2 or 2.3 of the Stockholders Agreement if (i)
iXL shall require that the Investors participate in such sale, pro rata with iXL
(except as provided below), to the maximum extent iXL is entitled to do so under
Section 2.2 or 2.3 (as applicable) of the Stockholders Agreement, (ii) the Sale
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Proceeds attributable to the sale by each Investor, pursuant to clause (i) above
and clause (v) below, of Series B Preferred Stock (and with respect to Series B
Preferred Stock that has already been converted, any Common Stock issued upon
such conversion) and shall be equal to the higher of (x) the amount otherwise
payable in accordance with Section 2.2 or 2.3 of the Stockholders Agreement or
(y) an amount representing a 35% internal rate or return to such Investor in
respect of the Series B Preferred Stock (or any Common Stock issued upon
conversion thereof) so sold, (iii) the aggregate Sale Proceeds received by the
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Investors represent at least a $50 million gain on the shares being sold in,
(iv) the Sale Proceeds received pursuant to clause (i) above and clause (v)
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below shall be paid to each Investor in cash or Marketable Securities to the
extent of the proceeds ensuring compliance with subsections (ii)(y) and (iii)
above and (v) if, notwithstanding clause (i) above, any of the equity securities
of the Company held by an Investor would not otherwise be sold on the terms
described in clause (ii) above, such Investor shall be given the option (which
must be exercised) to either (x) require that all (but not less than all) of
such Investor's remaining equity interests in the Company be sold in the manner
and on the terms described in (ii) above not later than of date of iXL's
Transfer pursuant to this Section 2(c) or (y) as to any Preferred Stock that the
Investor does not elect to be sold and that would otherwise remain outstanding,
convert such Preferred Stock into Common Stock in accordance with Section 4(a)
of the Series A or B Certificate of Designation upon the closing of the
transaction(s) under Section 2.2 or 2.3 (as applicable) of the Stockholders
Agreement. The option referred to in clause (iii) above shall be exercised by
such Investor within 15 business days after receipt by such Investor of notice
from describing such option and the circumstances giving rise thereto, together
with all
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information that the Investor may reasonably request in order to enable such
Investor to make a complete and informed decision with respect thereto.
(d) The provisions of this Section 2 shall not apply to any equity
securities sold by iXL in an underwritten registered public offering or pursuant
to Rule 144 in a broker's market transaction or to an affiliate of iXL that
agrees to be bound by this Agreement. The percentage calculations for purposes
of Section 2(a) and (b) shall be made independently of any equity securities
held by the Investors which are included in any sale pursuant to Section 2.1 of
the Stockholders Agreement but for purposes of Section 2(c) shall include any
equity securities held by the Investors which are included in any sale pursuant
to Section 2.2 or 2.3 of the Stockholders Agreement.
3. Certain Agreements; Provisions Applicable to Both Section 1 and Section
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2. (a) Any purchasers of the Company's equity securities issued pursuant to
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Section 1(a) or sold pursuant to Section 2(a) shall not be given, with respect
to any of their equity interests in the Company, any covenants, agreements or
rights that are more favorable or more comprehensive than those set forth in
this Agreement from either the Company or iXL or either of their Affiliates
unless such covenants , agreements or rights are extended to the Investors with
respect to their equity interests in the Company.
(b) Notwithstanding Sections 1 and 2 above, the number of shares of
equity securities of the Company that shall at any time and from time to time be
issued or Transferred by the Company pursuant to Section 1 shall be aggregated
with the number of shares of equity securities of the Company that shall at any
time and from time to time be Transferred by iXL pursuant to Section 2 or vice
versa for purposes of calculating each of the applicable percentage thresholds
set forth in Sections 1(a), (b) and (c) and Sections 2(a), (b) and (c) (it being
the intent of the parties that all such percentage thresholds be a measure of
the combined issuances and Transfers of Company equity securities by iXL and its
affiliates and/or the Company). "Internal rate of return" for purposes of
Section 1(c) and 2(c) shall be calculated as follows:
Internal rate of return = [(A/B) upward caret (1/C)]-1
Where:
. A = the aggregate cash sales or redemption price (including the fair market
value of any or Marketable Securities) received by the applicable Investor in
respect of the sale or redemption of the related Series B Preferred Stock or
Common Stock issued upon conversion of any thereof (the "Sales Proceeds").
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. B = the aggregate purchase price paid by such Investor for such Investor's
Series B Preferred Stock (or any Series B Preferred Stock previously
converted into Common Stock) pursuant to the Stock Purchase Agreement
relating to the Series B Preferred Stock, dated as of April 7, 1999.
. upward caret = raised to the power of
. C = Number of years (including fractions thereof) between April __, 1999
and the date of receipt by the applicable Investor of the Sales Proceeds.
. "Marketable Securities" means any registered freely transferable (except
for any lock-up period required by law or the purchaser of the Company
provided the Investors are not treated less favorably than iXL) equity
securities that are listed and actively traded on a national securities
exchange or the NASDAQ system.
4. Termination of the Investors' Rights. (a) Except as provided in
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Section 4(b) below, upon the occurrence of a Qualified Public Offering the
rights of the Investors under Section 2.1 and 9 of the Stockholders' Agreement
and the provisions of Sections 1,2, 3, 5, 6, 7 and 9 of this Agreement shall
terminate (other than any rights thereunder accruing prior to the date of such
termination).
(b) If iXL, together with its Affiliates, continues to hold either more
than 50% of the outstanding equity securities of the Company or more than 50% of
the outstanding voting securities of the Company after a Qualified Public
Offering, then, for so long as iXL and its Affiliates continue to hold more than
any such 50% interest, the Investors shall have the right to designate two
members to the board of directors of the Company pursuant to Section 9 of the
Stockholders' Agreement and the Investors will retain their tag-along rights
pursuant to Section 2.1 of the Stockholders' Agreement.
(c) If at any time prior to a Qualified Public Offering, the Investors
cease to own, in the aggregate, at least 10% of the Company's outstanding equity
securities whether due to sales, transfers, dilution or otherwise (to the extent
effected in compliance with this Agreement and the Stockholders Agreement), then
the Investors' rights hereunder (other than rights relating to obligations which
accrued prior to such cessation) will automatically terminate, other than the
right to designate members to the board of directors of the Company pursuant to
Section 9 of the Stockholders' Agreement and the tag-along rights pursuant to
Section 2.1 of the Stockholders' Agreement. If the Investors cease to own in
the aggregate, at least 5% of the Company's outstanding equity securities
whether due to sales, transfers, dilution or otherwise (to the extent effected
in compliance
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with this Agreement and the Stockholders Agreement), then, as provided in
Section 9.1 of the Stockholder's Agreement, the Investors will automatically
cease to have any rights to designate directors pursuant to the Stockholders'
Agreement or this Investors Agreement and, if requested by the Company, the
Investors shall request of each designee of the Investors to the Company's board
of directors that such designee shall resign from the Company's board of
directors.
5. Preemptive Rights. (a) Following the date hereof, if the Company
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proposes to sell, issue or grant any equity securities or other securities or
rights, directly or indirectly convertible into or exercisable or exchangeable
for any capital stock or other equity securities (other than any Excluded Shares
as defined in Section 9 hereof or any shares issued by the Company in any
underwritten public offering) to any person or entity, then each Investor that
owns Preferred Stock shall have the right, on the same terms and conditions of
the proposed sale, issuance or grant and exercisable within 30 days after the
Company has given such Investor notice of such proposed sale, issuance or grant,
to purchase a percentage of the shares or securities to be sold, issued or
granted equal to such Investor's percentage ownership of Common Stock of the
Company, (determined as if all Preferred Stock were converted to Common Stock),
as of the business day immediately prior to the date of such sale, issuance or
grant. If any such Investor exercises any such preemptive rights, the purchase
of shares or securities by such Investor will be governed by and subject to the
terms and conditions applicable to the person or entity to whom the sale,
issuance or grant was initially proposed to be made, subject to the provisions
of Section 5(b).
(b) If the Company issues equity securities (other than Excluded
Shares) for non-cash consideration, the Investors' rights pursuant to Section
5(a) hereof to purchase a percentage of such equity securities will be for a
cash purchase price equal to the fair market value (as determined by the Board
of Directors of the Company in good faith) of such non-cash consideration.
6. Approval Rights. The holders of Series A and Series B Preferred Stock
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will have the approval rights set forth in Section 7 of the Series A and Series
B Certificates of Designation. In addition, the Company agrees that it shall
not issue or Transfer (without the prior written consent of the Investors) any
equity securities of the Company for which, the per security cash consideration
is less than the "Antidilution Price" (as such term is defined in the Series B
Certificate of Designations) in effect at the time. The per security cash
consideration shall be computed on an "as converted" or "as exercised" basis for
convertible securities (including convertible debt) and with respect to non-
convertible voting preferred, shall be computed on the basis of the number of
votes per share. Such approval right will not apply to issuances of equity
securities (a) included in
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paragraphs (i), (viii) or (ix) of the definition of Excluded Shares; (b)
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included in paragraphs (ii), (iii) or (iv) of the definition of Excluded Shares
which, when taken together and aggregated for all such issuances does not exceed
10% of the Company's total outstanding equity securities; and (c) the issuance
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of any equity securities upon the conversion or exercise of any equity security,
the issuance of which has previously been approved by the Investors.
7. Board Approval. For so long as any of the Investors hold equity
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securities of the Company, the Company will not take the following actions
without the approval (in accordance with the Company's By-Laws) of the board of
directors of the Company: (i) material transactions with Affiliates other than
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wholly-owned subsidiaries; (ii) the acquisition of or material investment in any
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business unit or the sale of equity securities or assets of all or substantially
all of any business unit; (iii) the incurrence of material indebtedness; (iv)
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management compensation (it being understood that so long as the Investors have
a representative on the compensation committee of the Company, approval by the
compensation committee will be sufficient) and (v) capital expenditures
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materially in excess of amounts provided for in the most recent budget approved
by the board of directors of the Company.
8. Investor Action. Any consent or approval to be provided by the
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Investors hereunder shall be deemed the action of all the Investors if provided
by a majority in interest of the Investors.
9. Definition of Excluded Shares. "Excluded Shares" means (i) any shares
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of Common Stock issued upon conversion of the Preferred Stock or any shares of
any other series of preferred stock which has been issued in accordance with the
terms of this Agreement, the Stockholders Agreement and the Series A and Series
B Certificate of Designations, (ii) any Common Stock issued upon exercise of any
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options granted pursuant to the Stock Option Plan or any other options issued to
any employees of the Company pursuant to any option plan approved by the
Compensation Committee of the Board, (iii) any options exercisable into Common
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Stock issued pursuant to the Stock Option Plan, (iv) employee stock options
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issued pursuant to any option plans approved by the Compensation Committee of
the Board, (v) any equity securities issued in connection with any business
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combination, (vi) any securities issued in connection with any stock split,
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stock dividend or recapitalization of the Company which affects all equity
holders proportionately and does not involve sales or issuance of equity to one
or more third parties, (vii) any securities issued to any entity in connection
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with a loan or lease by such entity to the Company, if such loan or lease
transaction and such issuance of securities has been approved by the Board and
such securities, when taken together and aggregated with all prior issuances
under this subsection (vii), do not exceed 5% of the Company's
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total outstanding equity securities, (viii) any securities issued upon a spin-
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off of the Company to the stockholders of iXL and (ix) any securities issued in
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a Qualified Public Offering.
10. Assignment. Neither this Agreement nor any provision hereof may be
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assigned or transferred, whether by operation of law or otherwise, by any of the
Investors without the prior consent of the Company and iXL, except to their
respective Affiliates provided that any such Affiliate transferee agrees in
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writing to be bound hereby. Any Affiliate of an Investor that becomes an
assignee of any rights hereunder shall be deemed to be an Investor hereunder.
11. Termination. Any party to this Agreement who ceases to own any
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shares of Preferred Stock or Common Stock shall cease to be a party to this
Agreement and thereafter shall have no rights or obligations hereunder, provided
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that any sale, transfer or other disposition by such party was made in
compliance with the terms hereof and of the Stockholders' Agreement.
12. Governing Law. This Agreement and the rights and obligations of the
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parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof.
13. Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
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personally, (b) mailed, certified or registered mail with postage prepaid, (c)
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sent by next-day or overnight mail or delivery or (d) sent by as follows:
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(i) if to the Company or iXL, to it at:
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Consumer Financial Network, Inc. or (as applicable)
iXL Enterprises, Inc.
Two Park Place
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. M. Xxxxx Xxxxxxxx
Telecopier number: (000) 000-0000
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with a copy (which, in each case, shall not
constitute notice) to:
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier number: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
and
Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier number: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier number: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
(ii) If to an Investor, the address or fax number listed on the
signature page hereof.
or to such other person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (w) if by personal delivery
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on the day after such delivery, (x) if by certified or registered mail, on the
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seventh business day after the mailing thereof, (y) if by next-day or overnight
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mail or delivery, on the day delivered, (z) if by fax on the next day following
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the day on which such fax was sent, provided that a copy is also sent by
certified or registered mail.
14. Headings; Execution in Counterparts. The headings and captions
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contained herein are for convenience and shall not control or affect the meaning
or construction of
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any provision hereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which together
shall constitute one and the same instrument.
15. Construction. In the event of any conflict or inconsistency between
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any of the terms of this Agreement and any of the terms of the Stockholders
Agreement, the terms of this Agreement shall prevail; provided that no such
resolution shall derogate from the rights of the Investors under the
Stockholders Agreement.
16. Injunctive Relief. The equity securities of the Company can not
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readily be purchased or sold in the open market, and for that reason, among
others, the parties hereto will be irreparably damaged in the event of a breach
of any provision of this Agreement if this Agreement is not specifically
enforced. Each of the parties therefore agrees that in the event of a breach of
any provision of this Agreement the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such remedies
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which any party may have. Each party hereby irrevocably submits to
the non-exclusive jurisdiction of the state and federal courts in New York for
the purposes of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter herein. Each party hereby consents to
service of process by mail made in accordance with Section 13.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first above written.
IXL ENTERPRISES, INC.
By:
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CONSUMER FINANCIAL NETWORK, INC.
By:
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GE CAPITAL EQUITY INVESTMENTS, INC.
By:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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