EXHIBIT 10.1
EMPLOYMENT AGREEMENT BETWEEN
iXL ENTERPRISES, INC. AND XXXXXXXXXXX X. FORMANT
THIS AGREEMENT is made and entered into as of January 3, 2001 by and
among iXL Enterprises, Inc., a Delaware corporation ("iXL" or the "Company") and
Xxxxxxxxxxx X. Formant (the "Executive") and shall be effective as set forth in
Section 1 hereof.
1. COMMENCEMENT OF EMPLOYMENT. iXL shall employ the Executive and
the Executive hereby accepts such employment, on the terms and conditions set
forth in this Agreement, for the period commencing February 1, 2001, and
continuing through December 31, 2003 (the "Employment Period").
2. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall be
employed by the Company as its President and Chief Executive Officer with the
responsibilities customarily assigned to such position and with reporting
responsibilities to the Chairman of the Board of Directors. The Executive shall
serve as a member of the Executive Management Team, which will include the
Chairman, President and Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer and their direct reports. The Executive will also be elected
to the Board of Directors.
(b) During the Employment Period, the Executive shall
devote his full time and attention to the business and affairs of the Company,
and shall use his best efforts to promote and establish the business of the
Company and to carry out the responsibilities assigned to him under this
Agreement. It shall not be considered a violation of the foregoing for the
Executive to (i) serve on corporate boards with the approval of the Company,
(ii) serve on civic or charitable boards or committees, (iii) deliver lectures
or fulfill speaking engagements and (iv) manage personal investments, so long as
such activities do not interfere with the performance of the Executive's
responsibilities under this Agreement. The Company hereby approves the
Executive's service on the Board of Directors and as an officer of Loans USA,
Inc.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. Executive's base salary will be
$500,000.00 per annum for 2001 and will be reviewed by the Company's
Compensation Committee for consideration of an increase for all subsequent years
based on the Company's performance and market conditions. The Executive's base
salary shall be paid in conformity with iXL's salary payment practices generally
applicable to members of the Executive Management Team, which is currently
bi-monthly. Changes in payroll practices shall not work to defer payment of
amounts due hereunder.
(b) BONUSES. Executive's bonus shall be equal to a
minimum of 10% of an EBITDA bonus pool established annually by the Board of
Directors for senior executives. The bonus pool for 2001 is set out on Exhibit
A, and is subject to change annually by the Board of Directors, provided that
the total formula for and the allocations within the bonus pool cannot be
materially
changed without the approval of the Executive. In any event, the Executive's
bonus for 2001 shall not be less then $250,000, payable quarterly in arrears. In
2002, the Executive will be advanced $250,000, payable in quarterly
installments, to be offset against future earned bonuses, or to be repaid (as to
any unearned amount only) by the Executive upon his termination for Cause or
without Good Reason as set forth below. Upon a Change in Control or if the
Executive is terminated for reasons other than Cause or if the Executive
terminates for Good Reason, any such advances against future earned bonuses
shall be deemed earned.
(c) STOCK OPTIONS. As of the commencement of the
Executive's employment under this Agreement, the Executive shall be awarded an
option to purchase 1,000,000 shares of iXL common stock (the "Initial Options").
The option price for the shares shall be the current market price of the
Company's stock. The first 125,000 of the Initial Options will vest upon
execution of this Agreement, and the balance will vest monthly on a pro rata
basis over the 42 months following the date of this Agreement. The Executive
shall have the lesser of (i) eighteen (18) months or (ii) the remaining term of
the Initial Options to exercise any unexercised Initial Options after
termination of his employment.
(d) STANDARD BENEFITS. The Executive shall be eligible
for benefits commensurate with the benefits offered to all other iXL Executives
of a similar status. Benefits shall include:
(i) Health, Dental and Vision;
(ii) Medical and Dental Spending Accounts
(Section 125 Plan);
(iii) 401(k) Plan;
(iv) 22 Paid Time Off Days;
(v) Life and Accidental Death and Disability
Insurance;
(vi) Short and Long Term Disability Insurance;
and
(vii) Participation in iXL Ventures investments or
programs available to employees or Executives generally.
To the extent any of the foregoing health and welfare benefits
differ materially from the comparable benefits of the Executive's
previous employer, iXL will use reasonable efforts to provide the
Executive with comparable benefits.
(e) INDEMNIFICATION. iXL shall extend to the Executive
the same indemnification arrangements as are generally provided to other members
of Executive Management Team, including after termination of the Executive's
employment. A copy of iXL's Indemnification Agreement for its senior executives
and members of its board of directors is attached as Exhibit B. Executive shall
be made a party to such Indemnification Agreement upon his election to iXL's
Board of Directors which shall occur as soon as practicable after the date of
this Agreement.
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(f) EXPENSES. The Executive shall be entitled to receive
prompt reimbursement for all reasonable and customary travel and business
expenses incurred in connection with his employment, but the Executive must
incur and account for those expenses in accordance with the policies and
procedures established by iXL.
(g) SPECIAL EXPENSE REIMBURSEMENT. The Company will
reimburse the Executive for his reasonable moving expenses to Atlanta.
Alternatively, for the convenience of the Company and as a condition of his
employment, the Company will provide the Executive with living accommodations in
Atlanta and reimburse him for travel expenses to and from Atlanta if he chooses
not to relocate.
(h) STOCK PURCHASE. As an inducement to enter this
Agreement, the Executive has agreed to purchase one and one-half million shares
of common stock directly from the Company pursuant to a private placement. The
price for the shares shall be the current market price as of the date of the
stock purchase. A copy of the form subscription agreement to be used by the
Executive and the Company in connection with the stock purchase is attached
hereto as Exhibit C and incorporated by reference. The Company will lend the
Executive up to two-thirds of the total purchase price for the shares. The loan
to be evidenced by a promissory note will have a four-year term and bear
interest at 9% per annum, payable at maturity. The Executive will be expected to
prepay the loan with the net after tax proceeds of any annual bonus amount in
excess of $500,000, plus the net after tax proceeds from the sale of any Company
shares acquired from the stock purchase described above or from the exercise of
stock options granted herein. In addition, the Company will advance the
Executive up to $1,500,000 for the purpose of buying the shares, if the
Executive is delayed in receiving payment of his capital account or other funds
such as his 401(k) fund, which are not readily available from his previous
employer. The Executive shall immediately repay this amount to the Company (with
interest at 9% per annum) upon receipt of the funds from his previous employer.
4. TERMINATION OR RESIGNATION.
(a) BY THE COMPANY. In the event that Executive is
terminated for reasons other than Cause, Executive will be entitled to twelve
(12) months of Executive's then-current salary in the form of a severance
payment payable on a bi-monthly basis together with continued benefits. The
Executive shall also be entitled to any accrued, but unpaid bonus amount. The
foregoing severance shall be reduced or offset by the amount of any subsequent
salary from a new employer. In addition, in the event the Executive is
terminated for reasons other than Cause, the greater of (i) one-half of the
total of the Executive's unvested options, or (ii) vested options resulting from
one-year's forward vesting of the Executive's options, will immediately vest.
"Cause" shall mean: (A) conviction of a felony arising from any act of fraud,
misappropriation, embezzlement or material misconduct on the Executive's part,
(B) the Executive's (x) failure substantially to follow written directives of
the Board of Directors of the Company, not inconsistent with the terms of this
Agreement contemplated herein, and (y) failure to correct same within thirty
(30) days after notice from a lawfully designated representative of the Company
(or lesser period, if appropriate under the circumstances as described in the
notice), or (C) the Executive's serious and willful breach of any material
provision of this
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Agreement or breach of any material provision of the policies and procedures of
the Company that affect generally all members of the Executive Management Team
and the Executive's failure to cure same within thirty (30) days after notice
(to the extent such breach is subject to cure).
(b) GOOD REASON. Executive may terminate employment for
Good Reason or without Good Reason. "Good Reason" means any failure by the
Company to comply with any provision of this Agreement other than any such
failure that is remedied by the Company within thirty (30) days after receipt of
notice thereof from Executive. Good Reason includes, but is not limited to, the
Company's requiring Executive to relocate (unless agreed to by the Executive)
and any material change by the Company of the Executive's duties,
responsibilities, titles or job description in violation of this Agreement. A
termination of employment by the Executive for Good Reason shall be effectuated
by giving the Company written notice ("Notice of Termination for Good Reason")
of the termination, setting forth in reasonable detail the specific conduct of
the Company that constitutes Good Reason and the specific provision(s) of this
Agreement on which the Executive relies. A termination of employment by the
Executive for Good Reason shall be effective thirty days following the date when
the Notice of Termination for Good Reason is given; PROVIDED, that such a
termination of employment shall not become effective if the Company shall have
substantially corrected the circumstance giving rise to the Notice of
Termination for Good Reason within such 30-day period.
In the event that the Executive terminates his employment for
Good Reason, the Executive will be entitled to twelve (12) months of the
Executive's then-current salary in the form of a severance payment payable on a
bi-monthly basis together with continued benefits. The Executive shall also be
entitled to any accrued, but unpaid bonus amount. The foregoing severance shall
be reduced or offset by the amount of any subsequent salary from a new employer.
In addition, if the Executive terminates his employment for Good Reason, the
greater of (i) one-half of the total of the Executive's unvested options, or
(ii) vested options resulting from one-year's forward vesting of the Executive's
unvested options, will immediately vest.
(c) DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
The Company shall be entitled to terminate the Executive's employment because of
the Executive's Disability during the Employment Period. "Disability" shall be
defined exactly as it is defined in the Company's then current long-term
disability insurance policy. The Company will provide an insurance policy
sufficient to liquidate any outstanding loans upon the Executive's death or
disability (which shall be inclusive of the life and disability insurance
amounts provided in paragraph 3 (d)).
(d) DATE OF TERMINATION. The "Termination Date" means the
date of the Executive's death, the date on which the termination of the
Executive's employment by the Company for Cause or Disability, or by the
Executive for Good Reason is effective, the date on which the Company gives the
Executive notice of a termination of employment without Cause, or the date on
which the Executive gives the Company notice of a termination of employment
without Good Reason, as the case may be.
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5. CHANGE IN CONTROL.
(a) DEFINITION. The term "Change in Control" means (1) an
event that would be required to be reported in response to Item 1 of the current
report on Form 8-K, as in effect on the Effective Date, pursuant to Section 13
or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (2) any
person (as the term is used in Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly of securities of the surviving corporation
representing 40% or more of the combined voting power of the Company's
outstanding securities and such change results in the selection of a new
Chairman of its Board of Directors; (3) individuals who are members of the Board
of Directors of the Company as of the date hereof (the "Incumbent Board") cease
for any reason to constitute at least a majority thereof; or (4) consummation of
a plan of reorganization, merger, consolidation, sale of all or substantially
all of the assets of the Company or a similar transaction in which the Company
is not the resulting entity, or a transaction at the completion of which the
former stockholders of the acquired corporation become the holders of more than
40% of the outstanding common stock of the Company and the Company selects a new
Chairman of its Board of Directors; provided that the term "Change in Control"
shall not include an acquisition of securities by an employee benefit plan of
the Company.
(b) EFFECT. Upon a Change in Control, Executive shall be
eligible to receive any rights, benefits and entitlements made generally
available to members of the Executive Management Team as a result of a Change in
Control. However, if within one year after the Change in Control: (i) the
Executive's employment is terminated without Cause; or (ii) the Executive
suffers a reduction in title or a reduction of duties or reporting group or a
material diminution of the Executive's compensation and/or compensation
potential and subsequently the Executive's resignation, the Executive shall be
paid a lump sum amount equal to not less than two times his base salary plus any
accrued, but unpaid bonus amount; in addition, the remaining unpaid balance of
the four-year stock purchase loan described in paragraph 3 (h) above shall be
forgiven by the Company, and all of the Executive's stock options shall be
accelerated and vested.
(c) CONTINUATION. To the extent Executive is not
terminated under a Change in Control, this Agreement shall continue in full
force and effect and Executive shall continue to perform his obligations
hereunder through the end of the term of this Agreement.
(d) STOCK OPTIONS/COMPENSATION. After a Change in
Control, the greater of (i) one-half of the total of the Executive's unvested
options, or (ii) vested options resulting from one-year's forward vesting of the
Executive's unvested options, will immediately vest.
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6. NO OTHER REPRESENTATIONS. No representations have been made to
the Executive other than those set forth in this Agreement.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION. The Executive
agrees that iXL is engaged in the highly competitive business of providing
Internet professional services, including Internet strategy consulting and the
development of comprehensive Internet-based business solutions. iXL's
involvement in this business has required and continues to require the
expenditure of substantial amounts of money and the use of skills developed over
a long period of time. As a result of these investments of money, skill and
time, iXL has developed and will continue to develop certain valuable Trade
Secrets and Confidential Information that are peculiar to iXL's business and the
disclosure of which would cause iXL great and irreparable harm.
(a) The term "Trade Secrets" means any scientific or
technical information, design, process, procedure, formula or improvement that
is valuable and not generally known to iXL's competitors. To the fullest extent
consistent with the foregoing, and otherwise lawful, Trade Secrets shall
include, without limitation, information and documentation pertaining to the
design, specifications, capacity, testing, installation, implementation and
customizing techniques and procedures concerning iXL's present and future
products and services. This includes, but is not limited to:
(i) Software (including source and object code),
algorithms, inventions, designs, concepts, discoveries, improvements,
computer processing systems, techniques, methodologies, formulae,
processes, compilations of information, data, models, photographs,
know-how, machines, plans, techniques, user documentation, functional
overviews, screen layouts, report layouts, processing flow charts and
other work products, drawings, proposals, job notes, reports, records,
and specifications, whether the foregoing have been developed by or for
iXL or otherwise obtained by iXL;
(ii) customer or referral lists, agreements,
prospects, strategies, plans, records, files, or other similar
information;
(iii) project agreements, product agreements,
service agreements, sales contracts, licenses, negotiations,
strategies, plans, records, or files;
(iv) iXL policy and operating manuals or
procedures, workflow systems, product-design processes and systems and
strategies for providing services;
(v) iXL performance or financial statements or
other such information;
(vi) product, application and service price
lists, forms, contracts, marketing or other research and development
data and the results thereof or related information; and
(vii) product, application and service testing or
evaluation results or similar information.
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(b) The term "Confidential Information" means any data or
information and documentation, other than that which is a Trade Secret, which is
valuable to iXL and not generally known to iXL's competitors or the public,
including but not limited to:
(i) financial information, including but not
limited to earnings, assets, debts, prices, fee structures, volumes of
purchases or sales, or other financial data, whether relating to iXL
generally, or to particular products, services, geographic areas, or
time periods;
(ii) supply and service information, including
but not limited to information concerning the goods and services
utilized or purchased by iXL, the names and addresses of suppliers,
terms of supplier service contracts, or of particular transactions, or
related information about potential suppliers, to the extent that such
information is not generally known to iXL's competitors or the public,
and to the extent that the combination of suppliers or use of
particular suppliers, though generally known or available, yields
advantages to iXL the details of which are not generally known;
(iii) marketing information, including but not
limited to details about ongoing or proposed marketing programs or
agreements by or on behalf of iXL, marketing forecasts, results of
marketing efforts or information about impending transactions;
(iv) personnel information, including but not
limited to Executives' personal or medical histories, compensation or
other terms of employment, actual or proposed promotions, hiring,
resignations, disciplinary actions, terminations or reasons therefor,
training methods, performance or other Executive information; and
(v) customer information, including but not
limited to any customer proposals or agreements between customers and
iXL, status of customer accounts or credit, or related information
about actual or prospective customers.
8. OWNERSHIP. Any and all inventions, discoveries, improvements,
or creations (collectively, "Creations") which the Executive has conceived or
made or may conceive or make during the period of employment that are in any
way, directly or indirectly, connected with iXL, shall be the sole and exclusive
property of iXL. The Executive agrees that all copyrightable or patentable works
created by the Executive or under iXL's direction in connection with iXL's
business are "works made for hire" and shall be the sole and complete property
of iXL, and that any and all copyrights or patents to such works shall belong to
iXL, and the Executive shall execute all documents that may be necessary to
convey or assign any rights the Executive may have in such Creations. To the
extent such works are not deemed to be "works made for hire," the Executive
hereby assigns all proprietary rights, including copyright, in these works to
iXL without further compensation. The Executive further agrees to: (i) disclose
promptly to iXL all such Creations which the Executive has made or may make
solely, jointly, or commonly with others; (ii) assign all such Creations to iXL,
and (iii) execute and sign any and all applications, assignments, or other
instruments
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which iXL may deem necessary in order to enable it, at its expense, to apply
for, prosecute, and obtain copyrights, patents or other proprietary rights in
the United States and foreign countries or in order to transfer to iXL all
right, title, and interest in such Creations.
9. NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
The Executive agrees, except as specifically required in the performance of his
duties for iXL or if required by a court of law, that he will not, during the
course of his employment by iXL and for so long thereafter as the pertinent
information or documentation remain Trade Secrets or Confidential Information,
directly or indirectly use, disclose or disseminate to any other person,
organization or entity or otherwise use any Trade Secrets or Confidential
Information. The obligations set forth herein shall not apply to any Trade
Secrets or Confidential Information, which shall have become generally known to
competitors of iXL through no act or omission of the Executive.
10. NON-COMPETITION. The Executive agrees that for twelve (12)
months after the cessation of his employment with iXL, or for three (3) months
if employment is terminated without Cause or with Good Reason, the Executive
shall not become associated with any of the following entities: Sapient, Scient,
Viant, Xxxxx Systems, IBM Global, EDS, Razorfish, Proxicom, Computer Science
Corporation, march First.
11. NON-SOLICITATION OF CUSTOMERS.
(a) The Executive agrees that while employed by iXL, he
will have contact with and become aware of iXL's customers and the
representatives of those customers, their names and addresses, specific customer
needs and requirements, and leads and references to prospective customers. The
Executive further agrees that loss of such customers will cause iXL great and
irreparable harm.
(b) The Executive agrees that, except in the performance
of his duties for iXL, during his employment with iXL and for one (1) year after
the cessation of his employment, or six (6) months if his employment is
terminated without Cause or with Good Reason, he will not directly or indirectly
solicit, contact, call upon, or initiate communication with any of the Company's
top 100 clients for the purpose of providing Internet professional services,
including Internet strategy consulting and the development of comprehensive
Internet-based business solutions. For the purpose of this paragraph,
"indirectly soliciting, contacting, calling upon, or initiating communication
with" shall mean directing another person to solicit, contact, call upon, or
initiate communication with any of the Company's top 100 clients or such other
person otherwise acts on the Executive's behalf in soliciting, contacting,
calling upon, or initiating communication with any to the Company's top 100
clients.
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12. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that for
as long as he is employed by iXL and for one (1) year after the cessation of his
employment he will not recruit or attempt to recruit, directly or by assisting
others, any employee of iXL.
13. RETURN OF PROPERTY. The Executive agrees that he will deliver
to iXL upon the cessation of his employment, whether voluntary or involuntary,
and at any other time upon iXL's request: (i) all memoranda, notes, records,
computer programs, computer files, drawings or other documentation, whether made
or compiled by the Executive alone or with others or made available to him while
employed by iXL, pertaining to Creations, Trade Secrets, Confidential
Information or other inventions and works of iXL or its clients, and (ii) all
Creations, Trade Secrets, Confidential Information and other inventions and
works of iXL or its clients in the Executive's possession, custody or control.
The Executive will not retain any written or other tangible material containing
any information concerning or disclosing any of the Creations, Trade Secrets or
Confidential Information of iXL or its clients. The Executive recognizes that
the unauthorized taking or disclosure of any of such information or materials
could also result in both civil and criminal liability.
14. PRIOR COMMITMENTS/SPECIAL INDEMNIFICATION. By this Agreement,
the Executive acknowledges and represents that he has no other agreements,
relationships, or commitments to any other person or entity that conflict with
his obligations to iXL under this Agreement. The Executive will not disclose to
iXL, use, or induce iXL to use, any proprietary information or trade secrets of
others. The Executive represents and warrants that he has returned all property
and confidential information belonging to all prior employers, and further
represents and warrants that he has not knowingly violated and will not violate
any provisions of agreements with former employers such as non-solicitation,
non-compete and similar restrictions. If the Executive's prior employer asserts
a claim that the Executive has violated any provisions of his agreement with it
such as non-solicitation, non-compete and similar restrictions, the Company
agrees, at its option, either to directly assume the defense of such claim or to
reimburse the Executive for his costs and expenses of defending such claim.
15. AT-WILL EMPLOYMENT. Nothing contained herein constitutes, nor
should it be interpreted, deemed or construed to imply, a contract of employment
for any specific term. Unless otherwise provided in a separate written agreement
executed by the Executive and an authorized representative of iXL, the
Executive's employment with iXL is at-will, meaning either the Executive or iXL
may terminate the employment relationship at any time for any reason, or for no
reason at all. The Executive acknowledges, understands and agrees that the
execution of this Agreement and performance hereunder does not constitute a
promise or contract of continued employment.
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16. ATTORNEY'S FEES. If any party hereto must enforce any of its
rights in this Agreement through legal proceedings, the prevailing party shall
have a right to recover its costs, expenses and attorney's fees incurred in
connection with such legal proceedings from the other party.
17. WAIVER OF BREACH. The waiver by either party to this Agreement
of a breach of any provision of this Agreement by the other party does not waive
any subsequent breach by such party, nor does the failure by either party to
take action against the other party for similar prior breaches operate as a
waiver by such party of any future such breach.
18. COURT'S RIGHT TO MODIFY RESTRICTIONS. The parties have
attempted to limit the Executive's right to compete only to the extent necessary
to protect iXL from unfair competition. The parties recognize, however, that
reasonable people may differ in making such a determination. Consequently, the
parties agree that, if the scope or enforceability of this Agreement is in any
way disputed at any time, an arbitrator, court or other truer of fact may modify
and enforce the Agreement to the extent it believes to be reasonable under the
circumstances.
19. SEVERABILITY. If any provision in this Agreement is determined
to be in violation of any law, rule or regulation or otherwise unenforceable,
such determination shall not affect the validity of any other provision of this
Agreement, but such other provisions shall remain in full force and effect. Each
provision, paragraph and subparagraph of this Agreement is severable from every
other provision, paragraph and subparagraph and constitutes a separate and
distinct covenant.
20. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of iXL and its successors and assigns, and the Executive, his heirs,
executors and administrators. iXL shall not be entitled to assign its rights
hereunder without first obtaining the Executive's written consent.
21. INJUNCTIVE RELIEF. The Executive understands, acknowledges and
agrees that in the event of a breach or threatened breach of certain of the
covenants and promises contained in this Agreement iXL may suffer irreparable
injury for which there is no adequate remedy at law, and iXL may therefore be
entitled to preliminary and/or permanent injunctive relief from the courts
enjoining said breach or threatened breach. The Executive further acknowledges
that iXL also shall have the right to seek a remedy at law as well as or in lieu
of equitable relief in the event of any such breach.
22. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes
any and all prior understandings and agreements between the parties concerning
iXL's Creations, Trade Secrets and Confidential Information, as well as the
Executive's ability to compete with iXL and/or to solicit its customers,
potential customers and Executives. This Agreement may not be altered or amended
except in writing, signed by the Executive and an authorized representative of
iXL.
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23. CHOICE OF LAW. The parties agree that this Agreement is to be
governed by and construed under Georgia law.
24. LIQUIDATION. In the event the Company becomes bankrupt or
insolvent within one year after the date of this Agreement and is subsequently
liquidated, the unpaid amount (after applying any liquidation proceeds derived
from such stock ownership) of the four year stock purchase loan from the Company
to the Executive described in paragraph 3 (h), shall be forgiven.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above mentioned.
IXL ENTERPRISES, INC. EXECUTIVE:
By: /s/ U. Xxxxxxx Xxxxx /s/ Xxxxxxxxxxx X. Formant
----------------------------------------- -----------------------------
Xxxxxxxxxxx X. Formant
Name: U. Xxxxxxx Xxxxx
Title: President and Chief Executive Officer
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EXHIBIT A
2001 EBITDA* BONUS POOL
ANNUAL EBITDA PERCENTAGE OF EBITDA IN EXECUTIVE BONUS POOL
<$10 million 0
$10 million - $25 million 10% (of amount above $10 million)
$25 - $50 million plus 15% (of amount above $25 million)
>$50 million plus 20% (of amount above $50 million)
*Earnings before interest, taxes, depreciation and amortization.
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EXHIBIT B
INDEMNITY AGREEMENT
THIS AGREEMENT is made as of January , 2001, by and between iXL
Enterprises, Inc., a Delaware corporation ("Company"), and each person described
on a signature page hereto as "Indemnitee".
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given current market
conditions and trends, such insurance may be available to it in the future only
at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself. The By-laws of
the Company require indemnification of the officers and directors of the
Company. Indemnitee may also be entitled to indemnification pursuant to the
Delaware General Corporation Law ("DGCL"). The By-laws and the DGCL expressly
provide that the indemnification provisions set forth therein are not exclusive,
and thereby contemplate that contracts may be entered into between the Company
and members of the board of directors and officers with respect to
indemnification of directors and officers.
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WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and retaining such
persons; and
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act to assure such
persons that there will be increased certainty of such protection in the future;
and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
Bylaws of the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefore, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection available under the
Company's Bylaws and insurance adequate in the present circumstances, and may
not be willing to serve as an officer or director without adequate protection,
and the Company desires Indemnitee to serve in such capacity. Indemnitee is
willing to serve, continue to serve and to take on additional service for or on
behalf of the Company on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to
serve, at the will of the Company, as an officer or director of the Company for
so long as Indemnitee is duly elected or appointed or until Indemnitee tenders
his or her resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) A "Change in Control" shall be deemed to
occur upon the earliest to occur after the date of this Agreement of
any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as
defined below) is or becomes the Beneficial Owner (as defined below), directly
or indirectly, of securities of the Company representing fifteen percent (15%)
or more of the combined voting power of the Company's then outstanding
securities;
(ii) Change in Board of Directors. During any period of
two (2) consecutive years (not including any period prior to the execution of
this Agreement), individuals who at the
14
beginning of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in Sections 2(a)(i), 2(a)(iii) or
2(a)(iv)) whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the members of the
Board;
(iii) Corporate Transactions. The effective date of a
merger or consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger of consolidation continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 51% of the combined voting power
of the voting securities of the surviving entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving entity;
(iv) Liquidation. The approval by the shareholders of the
Company of a complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
and
(v) Other Events. There occurs any other event of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined below), whether
or not the Company is then subject to such reporting requirement.
(vi) Certain Definitions. For purposes of this Section
2(a), the following terms shall have the following meanings:
(A) "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
(B) "Person" shall have the meaning
as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall
exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee
benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the
same proportions as their ownership of stock of
the Company.
(C) "Beneficial Owner" shall have
the meaning given to such term in Rule 13d-3 under
the Exchange Act; provided, however, that
Beneficial Owner shall exclude any Person
otherwise becoming a
15
Beneficial Owner by reason of the shareholders of
the Company approving a merger of the Company with
another entity.
(b) "Corporate Status" describes the status of a person
who is or was a director, officer, employee or agent of the Company or of any
other corporation, partnership or joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the
Company who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Enterprise" shall mean the Company and any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(e) "Expenses" shall include all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness
in, or otherwise participating in, a Proceeding. Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.
(f) As to the Indemnitee, "good faith" shall
mean Indemnitee having acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal Proceeding, having had
no reasonable cause to believe Indemnitee's conduct was unlawful.
(g) Reference to "other enterprise" shall
include employee benefit plans; references to "fines" shall include
any excise tax assessed with respect to any employee benefit plan;
references to "serving at the request of the Company" shall include
any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
16
(h) The term "Proceeding" shall include any
threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether
of a civil, criminal, administrative or investigative nature, in which
Indemnitee was, is or will be involved as a party or otherwise by
reason of the fact that Indemnitee is or was a director or officer of
the Company, by reason of any action taken by him or of any action on
his part while acting as director or officer of the Company, or by
reason of the fact that he is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, in
each case whether or not serving in such capacity at the time any
liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses can be provided under this
Agreement.
(i) "Independent Counsel" means a law firm, or
a member of a law firm, that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other
indemnities under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee's rights under this
Agreement. The Company agrees to pay the reasonable fees and expenses
of the Independent Counsel referred to above and to fully indemnify
such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the Company to procure
a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and, in the case of a
criminal proceeding had no reasonable cause to believe that his conduct was
unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
The Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against
17
all Expenses actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company. No indemnification for
Expenses shall be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a court to be
liable to the Company, unless and only to the extent that any court in which the
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provisions of this Agreement, to
the extent that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter.
If the Indemnitee is not wholly successful in such Proceeding, the Company also
shall indemnify Indemnitee against all Expenses reasonably incurred in
connection with a claim, issue or matter related to any claim, issue, or matter
on which the Indemnitee was successful. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding to which Indemnitee is not
a party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
7. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections
3, 4, or 5, the Company shall indemnify Indemnitee to the
fullest extent permitted by law if Indemnitee is a party to or
threatened to be made a party to any Proceeding (including a
Proceeding by or in the right of the Company to procure a
judgment in its favor) against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with the Proceeding. No
indemnity shall be made under this Section 7(a) on account of
Indemnitee's conduct which constitutes a breach of
Indemnitee's duty of loyalty to the Company or its
shareholders or is an act or omission not in good faith or
which involves intentional misconduct or a knowing violation
of the law.
(b) Notwithstanding any limitation in Sections
3, 4, 5 or 7(a), the Company shall indemnify Indemnitee to the
fullest extent permitted by law if Indemnitee is a party to or
threatened to be made a party to any Proceeding
18
(including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the
Proceeding.
(c) For purposes of Sections 7(a) and 7(b), the
meaning of the phrase "to the fullest extent permitted by law"
shall include, but not be limited to:
i. to the fullest extent permitted by
the provision of the Act that authorizes or
contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or
replacement of the Act, and
ii. to the fullest extent authorized or
permitted by any amendments to or replacements of the
Act adopted after the date of this Agreement that
increase the extent to which a corporation may
indemnify its officers and directors.
8. EXCLUSIONS. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to
or on behalf of Indemnitee under any insurance policy or other
indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity
provision; or
(b) for an accounting of profits made from the
purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar
provisions of state statutory law or common law.
9. ADVANCES OF EXPENSES. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance the expenses incurred by
Indemnitee in connection with any Proceeding within 30 days after the receipt by
the Company of a statement or statements requesting such advances from time to
time, whether prior to or after final disposition of any Proceeding. Advances
shall be unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the expenses and without regard to Indemnitee's
ultimate entitlement to indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. The Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company.
19
10. PROCEDURE FOR NOTIFICATION AND DEFENSE OF CLAIM.
(a) To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification, not later than
thirty (30) days after receipt by Indemnitee of notice of the
commencement of any Proceeding. The omission to notify the
Company will not relieve the Company from any liability which
it may have to Indemnitee otherwise than under this Agreement.
The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(b) The Company will be entitled to participate
in the Proceeding at its own expense.
11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section
10(a), a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in
the specific case: (i) if a Change in Control shall have
occurred, by Independent Counsel in a written opinion to the
Board of Directors, a copy of which shall be delivered to
Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, or (B)
if there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be
delivered to Indemnitee or (C) if so directed by the Board, by
the stockholders of the Company; and, if it is so determined
that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to
such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by Indemnitee in
so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of
the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.
(b) In the event the determination of
entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 11(a) hereof, the Independent
Counsel shall be selected as provided in this
20
Section 11(b). If a Change in Control shall not have occurred,
the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have
occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event
the preceding sentence shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of
the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within 10
days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection; provided,
however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet
the requirements of "Independent Counsel" as defined in
Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent
a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is so
made and substantiated, the Independent Counsel so selected
may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such
objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for
indemnification pursuant to Section 10(a) hereof, no
Independent Counsel shall have been selected and not objected
to, either the Company or Indemnitee may petition a court of
competent jurisdiction for resolution of any objection which
shall have been made by the Company or Indemnitee to the
other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate,
and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent
Counsel under Section 11(a) hereof. Upon the due commencement
of any judicial proceeding or arbitration pursuant to Section
13(a) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional
conduct then prevailing).
21
12. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to
entitlement to indemnification hereunder, the person or
persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement
if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and the
Company shall have the burden of proof to overcome that
presumption in connection with the making by any person,
persons or entity of any determination contrary to that
presumption. Neither the failure of the Company (including by
its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant
to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
Company (including by its directors or independent legal
counsel) that Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable
standard of conduct.
(b) If the person, persons or entity empowered
or selected under Section 11 of this Agreement to determine
whether Indemnitee is entitled to indemnification shall not
have made a determination within sixty (60) days after receipt
by the Company of the request therefore, the requisite
determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to
such indemnification, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially
misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 60-day
period may be extended for a reasonable time, not to exceed an
additional thirty (30) days, if the person, persons or entity
making the determination with respect to entitlement to
indemnification in good faith requires such additional time
for the obtaining or evaluating of documentation and/or
information relating thereto; and provided, further, that the
foregoing provisions of this Section 12(b) shall not apply (i)
if the determination of entitlement to indemnification is to
be made by the stockholders pursuant to Section 11(a) of this
Agreement and if (A) within fifteen (15) days after receipt by
the Company of the request for such determination the Board of
Directors has resolved to submit such determination to the
stockholders for their consideration at an annual meeting
thereof to be held within seventy five (75) days after such
receipt and such determination is made thereat, or (B) a
special meeting of stockholders is called within fifteen (15)
days after such receipt for the purpose of making such
determination, such meeting is held for such purpose within
sixty (60) days after having been so called and such
determination is made thereat, or (ii) if the determination of
entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 11(a) of this Agreement.
22
(c) The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction,
or upon a plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.
(d) Reliance as Safe Harbor. For purposes of any
determination of good faith, Indemnitee shall be deemed to
have acted in good faith if Indemnitee's action is based on
the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee
by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise
or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by
an appraiser or other expert selected with the reasonable care
by the Enterprise. The provisions of this Section 12(d) shall
not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this
Agreement.
(e) Actions of Others. The knowledge and/or
actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under
this Agreement.
13. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made
pursuant to Section 11 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 9 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 11(a) of
this Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section
5, 6, 7 or the last sentence of Section 11(a) of this Agreement within ten (10)
days after receipt by the Company of a written request therefore, or (v) payment
of indemnification pursuant to Section 3 or 4 of this Agreement is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification, Indemnitee shall be entitled to an adjudication by
a court of his entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been
made pursuant to Section 11(a) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 13 shall be conducted in all respects as a de novo
23
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Section 13 the Company shall have the burden of
proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) If a determination shall have been made pursuant to
Section 11(a) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 13, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) In the event that Indemnitee, pursuant to this
Section 13, seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication or arbitration. If it shall be
determined in said judicial adjudication or arbitration that Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
Expenses sought, the Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against, any and all Expenses reasonably
incurred by Indemnitee in connection with such judicial adjudication or
arbitration.
(e) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 13 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement. The Company
shall indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefore) advance such expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by Indemnitee for
indemnification or advance of Expenses from the Company under this Agreement or
under any directors' and officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of Expenses or insurance recovery,
as the case may be.
14. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Company's Articles of Incorporation, the Company's
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded
currently under the Company's Bylaws and this
24
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. No right or
remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any such director, officer, employee or agent
under such policy or policies. If, at the time of the receipt of a notice of a
claim pursuant to Section 2(b) of Section 2 hereof, the Company has director and
officer liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement
to make any payment of amounts otherwise identifiable (or for which advancement
is provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) The Company's obligation to indemnify or advance
Expenses hereunder to Indemnitee who is or was serving at the request of the
Company as a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
15. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after the date that Indemnitee shall
have ceased to serve as a director or officer of the Company or as a director,
officer, employee or agent of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which Indemnitee served at the
request of the Company; or (b) 1 year after the final termination of any
Proceeding then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 13 of this Agreement relating
thereto.
25
This Agreement shall be binding upon the Company and its successors and assigns
and shall inure to the benefit of Indemnitee and his heirs, executors and
administrators.
16. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (c) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
17. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director or officer of the Company, and
the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter hereof.
18. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by the
parties thereto; provided, however, that the Company shall have the power to add
new Persons to this Agreement who shall then become "Indemnities" hereunder.
Such new Persons shall become parties to this Agreement only after such Persons
agree in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument or assumption reasonably satisfactory to the Company.
No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any
waiver constitute a continuing waiver.
19. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to the Indemnitee under
this Agreement or otherwise.
20. NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) if delivered by hand
26
and receipted for by the party to whom said notice or other communication shall
have been directed, or (b) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the
signature page of this Agreement, or such other address as Indemnitee shall
provide to the Company.
(b) If to the Company to:
iXL Enterprises, Inc. 0000
Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a required copy to:
Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
or to any other address as may have been furnished to Indemnitee by the Company.
21. CONTRIBUTION. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an identifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order
to reflect (i) the relative benefits received by the Company and Indemnitee as a
result of the event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
22. APPLICABLE LAW. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules.
Except with respect to any arbitration commenced by Indemnitee pursuant to
Section 10(a) of this Agreement, the Company and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of
the State of Delaware (the "Delaware Court"), and not in any other state or
federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court for
purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not a resident of the
State of Delaware, irrevocably RL&F Service Corp., One Xxxxxx Square, 10th
Floor, 10th and King Streets, Wilmington, Delaware 19801 as its agent in the
State of Delaware as such party's agent for acceptance of legal process in
connection with any such action or proceeding against such party with the same
legal force and validity as if
27
served upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in
an improper or inconvenient forum.
23. IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate. The headings of the
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
thereof.
[Signatures Begin on Following Page]
28
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the day and year first above written.
iXL ENTERPRISES, INC.
By:
--------------------------------------
Name: U. Xxxxxxx Xxxxx, Xx.
Title: Chairman
INDEMNITEES
-----------------------------------------
Name: Xxxxxxxxxxx X. Formant
Address:
---------------------------------
---------------------------------
---------------------------------
-----------------------------------------
Name:
Address:
---------------------------------
---------------------------------
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[Signatures Continue on Next Page]
- 1 -
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Name:
Address:
---------------------------------
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---------------------------------
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Name:
Address:
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- 2 -
EXHIBIT C
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
SUBSCRIPTION AGREEMENT
THE INVESTOR IS REQUIRED TO XXXX BOXES TO
INDICATE WHICH REPRESENTATIONS AND WARRANTIES IT IS
MAKING UNDER PART I HEREOF.
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, Xxxxxxxxxxx X. Formant (the
"Investor") hereby irrevocably subscribes for 1,500,000 shares (the
"Securities") of Common Stock, $.01 par value ("Securities"), of iXL
Enterprises, Inc. (the "Company"), for a total purchase price of $1,500,00 (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.
- 3 -
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 there under (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
- 4 -
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.
[ ] 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: (a) the Investor has been
provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional
information concerning the Company as the Investor deems
necessary in connection with the Investor's acquisition of
interests in the Company; (b) information with respect to
existing business and historical operating results of the
Company and estimates and projections as to future operations
involve significant subjective judgment and analysis, which
may or may not be correct; (c) the Company cannot, and does
not, make any representation or warranty as to the accuracy of
the information concerning the past or future results
- 5 -
of the Company except as set forth in Part III below.
2. 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.
3. 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.
4. The Investor understands that 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.
5. 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.
6. The Investor has relied solely upon independent investigations
made by the Investor in making the decision to purchase the
Securities subscribed for herein, and acknowledges that no
representations or agreements have been made to the Investor
with respect thereto except as set forth in Part III below.
7. 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
- 6 -
distributions are not required to be made and that
returns on an investment in the Securities may not be
realized for years.
(c) 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.
8. 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.
9. 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 withholding. If the Investor is
subject to backup withholding, Investor should cross through
clause (iii) and check the following box: [ ]
PART III: COMPANY REPRESENTATION
As of their respective filing dates with the Securities and
Exchange Commission (the "SEC"), the Company's filings with
the SEC: (a) did not contain any untrue statements of material
facts or omit to state material facts required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading; and (b) complied in all material respects with the
applicable requirements of the Securities Act of 1933, and the
Securities Exchange Act of 1934, both as amended, and the
rules and regulations promulgated there under. Since the date
of the Company's filings with the SEC, there has occurred no
material adverse change in the Company's financial condition,
results of operations, or prospects, except as disclosed to
the Investor.
- 7 -
MISCELLANEOUS
1. Successors and Assigns. Upon acceptance by the Company, this
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 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 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.
- 8 -
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at ,
---------------------------------- ------------------------
CITY STATE
this day of , .
------- -------------------- ---------
---------------------------------------------------
Print Name:
----------------------------------------
Social Security Number:
----------------------------
Address:
-------------------------------------------
-------------------------------------------
Telephone:
-----------------------------------------
Facsimile:
-----------------------------------------
Accepted this day of
--------- ---------
iXL Enterprises, Inc.
By:
------------------------------------------------
Title:
---------------------------------------------
Exhibit 10.1
IXL ENTERPRISES, INC.
COMMON STOCK
PAR VALUE $.01
SUBSCRIPTION AGREEMENT
THE INVESTOR IS REQUIRED TO XXXX BOXES TO
INDICATE WHICH REPRESENTATIONS AND WARRANTIES IT IS
MAKING UNDER PART I HEREOF.
iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Gentlemen:
By executing this Subscription Agreement, Xxxxxxxxxxx X. Formant (the
"Investor") hereby irrevocably subscribes for 1,500,000 shares (the
"Securities") of Common Stock, $.01 par value ("Securities"), of iXL
Enterprises, Inc. (the "Company"), for a total purchase price of $1,500,000 (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.
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 there under (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.
[x] 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.
[x] 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
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.
[ ] 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: (a) the Investor has been
provided with information concerning the Company and has had
an opportunity to ask questions and to obtain such additional
information concerning the Company as the Investor deems
necessary in connection with the Investor's acquisition of
interests in the Company; (b) information with respect to
existing business and historical operating results of the
Company and estimates and projections as to future operations
involve significant subjective judgment and analysis, which
may or may not be correct; (c) the Company cannot, and does
not, make any representation or warranty as to the accuracy of
the information concerning the past or future results
of the Company except as set forth in Part III below.
2. 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.
3. 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.
4. The Investor understands that 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.
5. 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.
6. The Investor has relied solely upon independent investigations
made by the Investor in making the decision to purchase the
Securities subscribed for herein, and acknowledges that no
representations or agreements have been made to the Investor
with respect thereto except as set forth in Part III below.
7. 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) 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.
8. 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.
9. 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 withholding. If the Investor is
subject to backup withholding, Investor should cross through
clause (iii) and check the following box: [x]
PART III: COMPANY REPRESENTATION
As of their respective filing dates with the Securities and
Exchange Commission (the "SEC"), the Company's filings with
the SEC: (a) did not contain any untrue statements of material
facts or omit to state material facts required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading; and (b) complied in all material respects with the
applicable requirements of the Securities Act of 1933, and the
Securities Exchange Act of 1934, both as amended, and the
rules and regulations promulgated there under. Since the date
of the Company's filings with the SEC, there has occurred no
material adverse change in the Company's financial condition,
results of operations, or prospects, except as disclosed to
the Investor.
MISCELLANEOUS
1. Successors and Assigns. Upon acceptance by the Company, this
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 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 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.
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT FOR
COMMON STOCK OF
IXL ENTERPRISES, INC.
Executed at Atlanta , Georgia
---------------------------------- ------------------------
CITY STATE
this 9th day of January , 2001 .
------- -------------------- ---------
Xxxxxxxxxxx X. Formant
---------------------------------------------------
Print Name: /s/ Xxxxxxxxxxx X. Formant
----------------------------------------
Social Security Number: ###-##-####
----------------------------
Address: 0000 Xx. Xxxxxx Xxx
-------------------------------------------
Xxxxxxxxx, XX 00000
-------------------------------------------
Telephone: 000-000-0000
-----------------------------------------
Facsimile:
-----------------------------------------
Accepted this 9th day of January , 2001
--------- ---------
iXL Enterprises, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------
Title: Executive Vice President
& General Counsel
---------------------------------------------
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement"), made and entered into
this 9th day of January, 2001, by and between Xxxxxxxxxxx X. Formant ("Pledgor")
and iXL Enterprises, Inc., a Delaware corporation ("iXL").
WITNESSETH:
WHEREAS, iXL has agreed to issue 1,500,000 shares of its Common Stock
(the "Shares") to Pledgor pursuant to the terms and conditions of an Employment
Agreement between iXL Enterprises, Inc. and Xxxxxxxxxxx X. Formant dated as
January 3, 2001 (the "Employment Agreement") in exchange for the agreement by
Pledgor to pay $500,000 in accordance with the terms of the form of promissory
note attached hereto as Exhibit A (the "Bridge Note") and the agreement of
Pledgor to pay an additional $1,000,000 to iXL in accordance with the terms of
the form of promissory note attached hereto as Exhibit B(the "Four-year Note");
and
WHEREAS, to induce iXL to issue the Shares pursuant to the Employment
Agreement, Pledgor has agreed to make and enter into this Agreement.
NOW, THEREFORE, for $1.00 and other good and valuable consideration,
the receipt, nature, and sufficiency of which are hereby acknowledged, Pledgor
and iXL hereby agree as follows:
1. Pledge of Stock. Pledgor does hereby pledge, hypothecate,
assign, transfer, set over, deliver and grant a security interest in and to iXL
in the Shares, together with any and all other interests, securities, cash or
other property at any time and from time to time receivable or otherwise
distributed in respect of or in exchange for any or all of the Shares or any
proceeds thereof (hereinafter said Shares and other interests, securities, cash
and property is being collectively referred to as the "Collateral"), all as
security for the payment and performance of the Bridge Note and the Four-year
Note.
2. Party Holding Collateral. Pledgor acknowledges and agrees that
iXL shall hold the Collateral, as a secured party, until such time as each of
the Bridge Note and Four-year Note has been paid in full and are fully
extinguished and satisfied by Pledgor.
3. Delivery of Shares. Pledgor hereby agrees to deliver to iXL as
of the date hereof, the certificate(s) (the "Stock Certificate") for the Shares
with accompanying stock powers duly endorsed by Pledgor. iXL accepts delivery of
such Stock Certificate, and agrees to hold and dispose of the Stock Certificate
as herein provided. Pledgor acknowledges and agrees that iXL shall hold the
Collateral as set forth in Paragraph 2 hereof, subject to the return of the
Collateral (or such portion thereof as may be existing from time to time
hereafter after giving effect to the terms hereof) by iXL to Pledgor upon
payment in full of each of the Bridge Note and the Four-year Note.
4. Rights with Respect to Collateral. Unless and until an Event
of Default (as hereinafter defined) shall have occurred, as between either
Pledgor and iXL, Pledgor:
(a) shall have and retain full legal and beneficial
ownership of the Collateral pledged hereunder, subject to the
terms and conditions of this Agreement; and
(b) shall have the right to exercise all voting rights,
if any, with respect to the Shares included in the Collateral;
provided, however, the Pledgor shall not vote or take any
action with respect to the Collateral which would be
inconsistent with the security interest herein granted in
favor of iXL; and
(c) shall have the benefit of any increases or bear the
risk of any decreases in the value of the Collateral pledged
hereunder, including, without limitation, the Shares; and
(d) shall have the benefit of any cash dividend
distributions made by iXL to its shareholders with respect to
the Shares; and
(e) shall pay all taxes, assessments or other charges
upon or with respect to the Collateral.
5. Representations and Warranties. In order to induce iXL to
accept this Agreement, Pledgor hereby represents and warrants to iXL that:
(a) Pledgor has the complete and unconditional authority
to pledge the Collateral as contemplated in this Agreement;
and
(b) Pledgor legally owns the Collateral free and clear of
any and all liens, charges, encumbrances and security
interests thereon (other than in favor of iXL).
6. Covenants. Pledgor covenants with iXL that Pledgor will:
(a) comply with all contracts, instruments and agreements
to which Pledgor is a party and which may materially adversely
affect the Collateral or iXL's security interest therein; and
(b) give prompt written notice to iXL of:
(i) any action or proceeding instituted or, to
the knowledge of Pledgor, threatened by or against
Pledgor which relates to the Collateral in any
federal or state court or before any governmental
authority which, if adversely determined, would have
a material
2
adverse effect upon the Collateral, including without
limitation, its value; or
(ii) any other action, event or condition of
which Pledgor has actual knowledge, or should
reasonably have had knowledge and which may adversely
affect the Collateral or iXL's security interest
therein or which would constitute an Event of Default
hereunder; and
(c) pay and discharge or cause to be paid and discharged
when due, all taxes, assessments and governmental charges or
levies imposed upon Pledgor with respect to the Collateral
before the same shall be in default; and
(d) comply promptly with all requirements of governmental
authorities known to Pledgor and affecting the Collateral or
any part thereof; and
(e) not cause, create, assume, permit or suffer to exist
any lien upon any Collateral, except:
(i) liens at any time granted in favor of iXL;
or
(ii) such other liens as iXL may hereafter
approve in this Agreement or otherwise, in writing;
and
(f) not sell, transfer or otherwise dispose of the
Collateral, except as iXL consents to such transfer in
writing.
7. Events of Default. The following events shall constitute
"Events of Default" hereunder:
(a) The failure of Pledgor to pay the Bridge Note and the
Four-year Note in accordance with their respective terms; or
(b) Any assignment by Pledgor of the Collateral or any
action by Pledgor (other than the pledge pursuant to this
Agreement) to encumber, pledge, sell, transfer or otherwise
dispose of any of the Collateral without the prior written
consent of iXL; or
(c) Any uncured breach, default or failure by Pledgor to
perform any covenant or agreement set forth herein or in any
document, instrument or agreement evidencing, securing,
guaranteeing or pertaining to the Bridge Note or the Four-year
Note.
8. Collection of Distributions and Proceeds. From and after the
occurrence of an Event of Default hereunder, Pledgor acknowledges and agrees
that iXL:
3
(a) shall be entitled to collect and receive all
distributions and proceeds in connection with the Collateral;
and
(b) may exercise any and all rights and remedies of
Pledgor, as if iXL were the legal owner of the Shares, with
respect to the Shares, including, without limitation, voting
rights; and
(c) may exercise any and all rights and remedies at law,
equity or by agreement, including, without limitation,
foreclosure on the Collateral, exercise of power of sale,
exercise of any voting rights, or exercise of any and all
rights and remedies existing under the Uniform Commercial Code
of Georgia as may be in effect at the time of such Event of
Default; and
(d) any distributions and proceeds received by iXL
hereunder shall first be applied against all costs incurred by
iXL (including reasonable attorneys fees actually incurred)
arising in connection with, or related to, any Event of
Default hereunder; second, shall be applied to any accrued but
unpaid interest due on the principal amount of the Bridge Note
and the Four-year Note; and third, with remaining
distributions received by iXL being applied against the
principal amount of the Bridge Note and the Four-year Note.
Any excess distributions or proceeds shall be distributed to
Pledgor.
9. Governing Law; Benefit. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia and shall
inure to the benefit of and be binding upon the successors, and permitted
assigns of the parties hereto. This Agreement may not be assigned without the
written consent of the non-assigning party.
10. Other Agreements. This Agreement has been executed by iXL and
Pledgor in partial consideration of the agreements set forth in the Employment
Agreement, which is incorporated herein by reference.
11. Amendment. This Agreement may not be modified, supplemented,
amended or terminated orally or in any manner other than by a written instrument
executed by the parties hereto or their respective successors and assigns.
12. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same agreement.
13. Non-Waiver. No failure of any party to exercise any power
reserved to it by this Agreement and no custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of the non-waiving
party's right to demand exact compliance with any of the terms herein. A waiver
or approval by the non-waiving party of any particular default by any other
party shall not be considered a waiver or approval by the non-waiving party of
any preceding or subsequent breach or default by any other party of any term,
covenant or condition of this Agreement.
4
14. Severability. Should any part of this Agreement, for any
reason, be declared invalid by a court of competent jurisdiction, such decision
or determination shall not affect the validity of any remaining portion and such
remaining portion shall remain in full force and effect as if this Agreement has
been executed with the invalid portion eliminated; provided, however, that in
the event of a declaration of invalidity, the provision declared invalid shall
not be invalidated in its entirety, but shall be observed and performed by the
parties to the extent such provision is valid and enforceable. The parties
hereby agree that any such provision shall be deemed to be altered and amended
to the extent necessary to effect such validity and enforceability.
15. Headings and Captions. The headings and captions contained
herein are for the purpose of convenience and reference only and are not to be
construed as a part of this Agreement. All terms and words used herein shall be
construed to include the number and gender as the context of this Agreement may
require. The parties agree that each section of this Agreement shall be
construed independently of any other section or provision of this Agreement.
16. Time of Essence. Time is of the essence.
17. Notices. Any and all notices, demands and responses thereto
permitted or required to be given under this Agreement shall be in writing, and
shall be deemed to have been properly given or served and shall be effective
upon being personally delivered or three (3) days after being deposited in the
United States Mail, postage prepaid, registered or certified mail, return
receipt requested, to the other party at the address of such other party set
forth below or at such other address as such other party may designate by notice
specifically designated as a notice of change of address and given in accordance
herewith; provided, however, that the time period in which any time of right to
cure or a response to any such notice or demand must be given shall commence on
the date of receipt thereof; and provided further that no notice of change of
address shall be effective until the date of receipt thereof. Personal delivery
to a party or to any officer, partner, agent or employee of such party at said
address shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of changed address of which no notice has been
received shall also constitute receipt. Any such notice, demand, or request
shall be addressed as set forth in the Employment Agreement.
18. Liquidation. In the event that iXL becomes bankrupt or
insolvent within one year after the date of this Agreement and is subsequently
liquidated, the unpaid amount (after applying any liquidation proceeds derived
from such stock ownership) of the Four-year Note shall be forgiven.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
"Pledgor"
/s/ Xxxxxxxxxxx X. Formant
---------------------------
Xxxxxxxxxxx X. Formant
"iXL"
iXL Enterprises, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
BRIDGE NOTE
$500,000.00 January 9, 0000
Xxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, the undersigned, XXXXXXXXXXX X. FORMANT, an
individual residing in the State of Maryland ("Maker"), promises to pay to the
order of iXL ENTERPRISES, INC., a Delaware corporation ("Holder"), the principal
sum of FIVE HUNDRED THOUSAND and NO/100 DOLLARS ($500,000.00), said principal to
be payable at such place as the Holder may designate in writing, as set forth
below. Interest shall accrue on the principal amount at the rate of nine percent
(9%) per annum.
The outstanding principal amount shall be due and payable promptly upon
the Maker's receipt of payment of his capital account (or other funds such as
his 401K fund) from his previous employer, Pricewaterhouse Coopers.
Maker shall be in default hereunder if (i) Maker fails timely to make
any payment due hereunder; (ii) Maker files or has filed against it any
proceeding under any insolvency or bankruptcy statute; or (iii) any of the other
conditions hereinafter set out are violated or breached by Maker. If a default
occurs, all amounts due hereunder shall, at the option of the Holder, become
immediately due and payable.
Maker, whether principal, surety or endorser waives demand, protest and
notice of demand, protest and non-payment. Maker further waives notice of
default and notice of acceleration of the maturity hereof by reason of default.
The failure of the Holder to exercise the right of accelerating the maturity of
the debt, or the granting by the Holder of any indulgence from time to time,
shall in no event be considered a waiver of such right of acceleration or
prevent the Holder from thereafter exercising such right at any time thereafter
as if another default shall thereafter exist.
Notwithstanding anything to the contrary contained herein, in no event
shall the total of all charges payable under this Note, which are or could be
held to be in the nature of interest, exceed the maximum rate permitted to be
charged under any applicable law. Should Holder receive any payment which is or
would be in excess of that permitted to be charged under any applicable law,
such payment shall be deemed to have been made in error and shall automatically
either be reduced immediately to the maximum amount permitted by law or, if
required to comply with applicable law, be cancelled and, if theretofore paid,
at the option of Holder, be refunded to Maker or applied to reduce the principal
balance outstanding on this Note.
Any and all notices, demands and responses thereto permitted or
required to be given under this Note shall be in writing, and shall be deemed to
have been properly given or served and shall be effective upon being personally
delivered or two (2) days after being deposited in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, to the
other party at the address of such other party set forth below or at such other
address as such other party may designate by notice specifically designated as a
notice of change of address and given in accordance herewith; provided, however,
that no notice of change of address shall be effective until the date of
-1-
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of changed address of
which no notice has been received shall also constitute receipt. Any such
notice, demand, or request shall be addressed as follows:
If to Maker: at the address set forth by Maker's signature below
If to Holder: iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
All unpaid amounts evidenced by this Note may be prepaid, in whole or
in part, from time to time and at any time, without premium or penalty.
All rights, privileges and obligations hereof, shall inure to the
benefit of and bind the respective successors and assigns of the parties hereto.
In case, and as often as, this Note is collected by an attorney at law,
all costs of collection, including reasonable attorney's fees, actually
incurred, shall be paid by Maker.
This Note is secured by a pledge of shares as evidenced by a Pledge and
Security Agreement dated as of the date of this Note.
This Note is to be construed in accordance with, and governed by, the
internal laws of the State of Georgia, without regard to its principles of
conflict of laws.
IN WITNESS WHEREOF, Maker has set its hand and seal, as of the date
first above written.
/s/ Xxxxxxxxxxx X. Formant
---------------------------------
Xxxxxxxxxxx X. Formant
Address: 0000 Xx. Xxxxxx Xxx
Xxxxxxxxx, XX 00000
-2-
FOUR YEAR
PROMISSORY NOTE
$1,000,000.00 January 9, 0000
Xxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, the undersigned, XXXXXXXXXXX X. FORMANT, an
individual residing in the State of Maryland ("Maker"), promises to pay to the
order of iXL ENTERPRISES, INC., a Delaware corporation ("Holder"), the principal
sum of ONE MILLION and NO/100 DOLLARS ($1,000,000.00), said principal to be
payable at such place as the Holder may designate in writing, as set forth
below. Interest shall accrue on the principal amount at the rate of nine percent
(9%) per annum.
The outstanding principal amount shall be due and payable on January 9,
2005. In addition, reference is made to an employment agreement between Maker
and Holder dated January 3, 2001, and to a Pledge and Security Agreement of even
date herewith to which reference is made for special terms requiring the Maker
to make additional payments of principal, and for terms requiring the Holder,
under certain described circumstances, to forgive the unpaid balance of this
Note.
Maker shall be in default hereunder if (i) Maker fails timely to make
any payment due hereunder; (ii) Maker files or has filed against it any
proceeding under any insolvency or bankruptcy statute; or (iii) any of the other
conditions hereinafter set out are violated or breached by Maker. If a default
occurs, all amounts due hereunder shall, at the option of the Holder, become
immediately due and payable.
Maker, whether principal, surety or endorser waives demand, protest and
notice of demand, protest and non-payment. Maker further waives notice of
default and notice of acceleration of the maturity hereof by reason of default.
The failure of the Holder to exercise the right of accelerating the maturity of
the debt, or the granting by the Holder of any indulgence from time to time,
shall in no event be considered a waiver of such right of acceleration or
prevent the Holder from thereafter exercising such right at any time thereafter
as if another default shall thereafter exist.
Notwithstanding anything to the contrary contained herein, in no event
shall the total of all charges payable under this Note, which are or could be
held to be in the nature of interest, exceed the maximum rate permitted to be
charged under any applicable law. Should Holder receive any payment which is or
would be in excess of that permitted to be charged under any applicable law,
such payment shall be deemed to have been made in error and shall automatically
either be reduced immediately to the maximum amount permitted by law or, if
required to comply with applicable law, be cancelled and, if theretofore paid,
at the option of Holder, be refunded to Maker or applied to reduce the principal
balance outstanding on this Note.
Any and all notices, demands and responses thereto permitted or
required to be given under this Note shall be in writing, and shall be deemed to
have been properly given or served and shall be effective upon being personally
delivered or two (2) days after being deposited in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, to the
other party at the
-1-
address of such other party set forth below or at such other address as such
other party may designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided, however, that no
notice of change of address shall be effective until the date of receipt
thereof. Personal delivery to a party or to any officer, partner, agent or
employee of such party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of changed address of
which no notice has been received shall also constitute receipt. Any such
notice, demand, or request shall be addressed as follows:
If to Maker: at the address set forth by Maker's signature below
If to Holder: iXL Enterprises, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
All unpaid amounts evidenced by this Note may be prepaid, in whole or
in part, from time to time and at any time, without premium or penalty.
All rights, privileges and obligations hereof, shall inure to the
benefit of and bind the respective successors and assigns of the parties hereto.
In case, and as often as, this Note is collected by an attorney at law,
all costs of collection, including reasonable attorney's fees, actually
incurred, shall be paid by Maker.
This Note is secured by a pledge of shares as evidenced by a Pledge and
Security Agreement dated as of the date of this Note.
This Note is to be construed in accordance with, and governed by, the
internal laws of the State of Georgia, without regard to its principles of
conflict of laws.
IN WITNESS WHEREOF, Maker has set its hand and seal, as of the date
first above written.
/s/ Xxxxxxxxxxx X. Formant
--------------------------------
Xxxxxxxxxxx X. Formant
Address: 0000 Xx. Xxxxxx Xxx
Xxxxxxxxx, XX 00000
-2-
AGREEMENT OF AMENDMENT AND ASSIGNMENT
OF
EMPLOYMENT AGREEMENT BETWEEN
IXL ENTERPRISES, INC. AND XXXXXXXXXXX X. FORMANT
THIS AGREEMENT is made and entered into as of July 31, 2001 by and
among iXL Enterprises, Inc., a Delaware corporation ("iXL") and Xxxxxxxxxxx X.
Formant (the "Executive") and shall be effective as set forth in Section 8.
WHEREAS, iXL and the Executive are parties to that certain Employment
Agreement between iXL Enterprises, Inc. and Xxxxxxxxxxx X. Formant dated January
3, 2001 (the "Employment Agreement");
WHEREAS, iXL, Scient and India Merger Sub, Inc. and Sierra Merger Sub,
Inc. have entered into that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") providing for the merger of Scient with
Sierra Merger Sub and the merger of iXL with India Merger Sub, Inc., as of the
Effective Time (as defined in the Merger Agreement) (the "Effective Time"), with
the result that each of the surviving corporations will be wholly-owned
subsidiaries of Holdco (the "Mergers"); and
WHEREAS, in connection with the Mergers, iXL and the Executive wish to
amend the terms of the Employment Agreement as provided herein and provide for
the assignment of the Employment Agreement by iXL to Holdco.
NOW THEREFORE, for good valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment and Assumption. The Executive agrees and
consents that as of the Effective Time all of the rights and obligations of iXL
under the Employment Agreement will be assigned to and assumed by Holdco and,
with respect to the period from and after the Effective Time, all references in
the Employment Agreement to "iXL" or "the Company" shall be deemed to be
references to Holdco; provided that any obligations of iXL under the Employment
Agreement which have been fulfilled prior to the Effective Time (such as
compensation paid, options and stock issued and benefits and reimbursements
provided to the Executive) shall be deemed satisfied and shall not require
duplication by Holdco.
2. Amendment of Bonus. As of the Effective Time, paragraph 3(b)
and Exhibit A of the Employment Agreement are deleted in their entirety and the
following is substituted in place of such paragraph 3(b):
"(b) BONUSES. In respect of each fiscal year during the
Employment Period, the Executive shall be entitled to receive
an annual cash bonus, with all determinations as to the
amount,
criteria and ultimate entitlement for such annual bonus being
determined by the Board of Directors in its sole discretion".
3. Consent to Treatment of Options Under Merger Agreement.
Notwithstanding anything to the contrary in paragraph 3(c) of the Employment
Agreement (or in any other agreement or document), the Executive agrees and
consents that all options relating to iXL common stock received and held by the
Executive under any stock-based plan of iXL shall, in connection with the
Mergers, be treated in the manner prescribed in the Merger Agreement.
4. Benefits. As of the Effective Time, paragraph 3(d) of the
Employment Agreement is deleted in its entirety and the following is substituted
in place of such paragraph 3(d):
"(d) STANDARD BENEFITS. The Executive shall be eligible for
benefits commensurate with the benefits to which the Executive
is currently entitled; provided that iXL shall have the right
to replace any such benefits with comparable benefits after
the Effective Time".
5. Amendment of Severance Benefit. As of the Effective Time,
paragraphs 4(a) and 4(b) are amended to delete the following sentence appearing
in each: "The Executive shall also be entitled to any accrued, but unpaid bonus
amount."
6. Waiver of Good Reason. The Executive agrees that neither:
(i) the termination of the Executive's role as President,
Chief Executive Officer and member of the Board of
Directors of iXL, the appointment of the Executive as
President, Chief Executive Officer and member of the
Board of Directors of Holdco and the assumption by
the Executive of the duties, responsibilities and
reporting relationships commensurate with this new
position, each effective as of the Effective Date;
nor
(ii) the Executive's being required to maintain his
principal office in the New York City metropolitan
area (the intended headquarters of Holdco) as of or
within 12 months after the Effective Date,
shall constitute (x) a termination of the Executive's employment or (y) "Good
Reason" within the meaning of paragraph 4(b) of the Employment Agreement, for
any purpose under the Employment Agreement. From and after the Effective Time,
the Employment Agreement shall be construed as an agreement between the
Executive and Holdco and Good Reason shall exist only if the Executive is deemed
to have Good Reason under the Employment Agreement as so construed.
2
Moreover, the Executive agrees that between execution of this Agreement and the
Effective Time, the Executive will not terminate his employment with iXL for
Good Reason, and any termination of his employment with iXL by the Executive
will constitute a termination other than for Good Reason. iXL agrees that
between execution of this Agreement and the Effective Time, it will not
terminate the Executive's employment with it, other than for "Cause" within the
meaning of paragraph 4(a) of the Employment Agreement or take any action or omit
to take any action that would, but for this Section 5, permit the Executive to
terminate for Good Reason.
7. Waiver of Change in Control. Notwithstanding the terms of the
Employment Agreement, none of the transactions contemplated by the Merger
Agreement shall constitute a "Change in Control", within the meaning of
paragraph 5 of the Employment Agreement, for any purpose under the Employment
Agreement. For the avoidance of doubt, but without limiting the generality of
the foregoing, the Executive agrees that the consummation of the transactions
contemplated by the Merger Agreement, taken alone or together with any of the
other events described in paragraph 5(b) of the Employment Agreement, shall not
give rise to a forgiveness of the remaining unpaid balance of the stock purchase
loan described in paragraph 3(h) of the Employment Agreement or the enhancement
of the Executive's potential severance benefit or the accelerated vesting of any
stock options granted to the Executive after the date hereof, in each case as
described in paragraph 5(b) of the Employment Agreement.
8. Amendment of Effect of Change in Control. As of the Effective
Time paragraph 5(b) of the Employment Agreement is amended to add the following
sentence to the very and thereof, after the "vested" and before the period:
"and the Executive's health and welfare benefits set forth in
paragraph 3(b) shall continue for 24 months after the
Termination Date".
9. Deletion of Non-Competition and Non-Solicitation Provisions.
As of the Effective Time paragraphs 10, 11 and 18 of the Employment are deleted
in their entirety and the remaining paragraphs and cross references are
renumbered accordingly.
10. Waiver of Existing Claims. The Executive represents that the
Executive does not have, or agrees to fully and completely release, discharge
and waive, any and all claims, complaints, causes of action or demands against
iXL, its affiliates, predecessors and successors (including Holdco) and all of
its officers and employees by reason of any event, matter, cause or thing which
has occurred prior to the date hereof ( "Claims"). The Executives acknowledges
that this Agreement specifically covers, but is not limited to, any and all
Claims which the Executive have or may have against iXL relating in any way to
compensation, or
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to any other terms, conditions or circumstances of the Executive's employment
with iXL, whether based on statutory or common law claims for employment
discrimination, wrongful discharge, breach of contract or any other theory,
whether legal or equitable. Notwithstanding the foregoing, the Executives does
not waive any rights to which the Executive may be entitled (1) to seek to
enforce this Agreement or the Employment Agreement as amended hereby, (2) to
seek indemnification with respect to liability incurred by the Executive as an
employee or director of iXL or (3) to receive any accrued benefits or
entitlements (such as vacation), expense reimbursements in accordance with iXL's
current policies and existing workers' compensation claims.
11. Effectiveness of Agreement. This Agreement shall become
effective as of the Effective Time; provided that the Executive continues to
serve as President and Chief Executive Officer of iXL at such time. If for any
reason the Mergers are not consummated in accordance with the Merger Agreement
or the Executive ceases to serve as President and Chief Executive Officer of iXL
prior to the effectiveness of the Mergers, this Agreement shall be null and void
ab initio.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above mentioned.
IXL ENTERPRISES, INC. EXECUTIVE
By: /s/ U. XXXXXXX XXXXX, XX. /s/ XXXXXXXXXX X. FORMANT
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Name:
Title
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