EXHIBIT 10.28
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SUBSCRIPTION AGREEMENT
IXL HOLDINGS, INC.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
DATED AS OF APRIL 4, 1997
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SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of April 4, 1997, between IXL HOLDINGS
INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇ INVESTMENT ASSOCIATES V,
L.P. (the "Purchaser").
WHEREAS, the Purchaser desires to subscribe for, and the Company desires to
make available for purchase, 35,818 shares of the Company's Class A Convertible
Preferred Stock, par value $.01 per share (the "Shares"), on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the parties hereto agree as follows:
1. Purchase and Sale of the Shares.
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(a) General. Subject to all of the terms and conditions of this
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Agreement, and in reliance upon the representations and warranties contained
herein, the Purchaser hereby subscribes for and agrees to purchase, and the
Company hereby agrees to sell to the Purchaser for its own account, on the
Closing Date (as defined in Section 2(a) hereof), the Shares.
(b) Purchase Price. The purchase price per Share shall be $250.00.
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(c) Consideration. At the Closing, the Purchaser shall purchase the
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Shares for $8,954,500 (the "Consideration"). The Consideration shall be paid by
the Purchaser at the Closing in cash payable by wire transfer of immediately
available funds to an account designated by the Company or by bank check if
acceptable to the Company.
2. Closing.
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(a) Time and Place. The date of the closing of the transactions
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contemplated by this Agreement (the "Closing Date") shall be held on April 4,
1997, unless the Company and the Purchaser have agreed to extend such date.
(b) Delivery by the Company. At the Closing, against delivery of the
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Consideration by the Purchaser, the Company will deliver to the Purchaser a
stock certificate
registered in the Purchaser's name and representing the Shares
purchased by the Purchaser, which certificates shall bear the legends set forth
in the First Amended and Restated Stockholders Agreement (the "Stockholders
Agreement") to be entered into on the Closing Date.
(c) Delivery by the Purchaser. At the Closing, the Purchaser will
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deliver (i) the Consideration as provided in Section 1(c); and (ii) executed
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signature pages to the Stockholders' Agreement.
3. Purchaser's Representations, Warranties and Covenants.
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(a) Investment Intention and Restrictions on Disposition. The
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Purchaser represents and warrants that Purchaser is acquiring the Shares solely
for the Purchaser's own account for investment and not with a view to, or for
sale in connection with, any distribution thereof in any transaction or series
of transactions that would be in violation of the securities laws of the United
States or any state thereof. The Purchaser agrees that the Purchaser will not,
directly or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise
dispose of any of the Shares (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of any of the Shares) or any interest therein
or any rights relating thereto, except in compliance with (i) the Securities Act
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of 1933, as amended (the "Act"), and the rules and regulations of the Securities
and Exchange Commission thereunder, (ii) all applicable state securities or
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"blue sky" laws and (iii) the Stockholders Agreement. The Purchaser further
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understands, acknowledges and agrees that none of the Shares or any interest
therein or any rights relating thereto may be transferred, sold, pledged,
hypothecated or otherwise disposed of (x) unless the provisions of the
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Stockholders Agreement shall have been complied with and (y) unless such
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disposition is exempt from the provisions of Section 5 of the Act or is pursuant
to an effective registration statement under the Act and is exempt from (or in
compliance with) applicable state securities or "blue sky" laws. Any attempt by
the Purchaser, directly or indirectly, to offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any of the Shares, or any interest therein
or any rights relating thereto, without complying with the provisions of this
Agreement and the Stockholders Agreement shall be void and of no effect.
(b) Securities Law Matters. The Purchaser acknowledges receipt of
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advice from the Company that (i) the Shares have not been registered under the
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Act or qualified under any state securities or "blue sky" laws, (ii) it is not
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anticipated that there will be any public market for the Shares, (iii) the
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Shares must be held indefinitely and the Purchaser must continue to bear the
economic risk of the investment in the Shares unless the Shares are subsequently
registered under the Act and such state laws or an exemption from registration
is available, (iv) Rule 144 promulgated under the Act ("Rule 144") is not
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presently available with respect to sales of any securities of the Company and
the Company has made no covenant to make Rule 144 available and Rule 144 is not
anticipated to be available in the foreseeable future, (v) when and if the
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Shares may be disposed of without registration in reliance upon Rule 144, such
disposition can be made only in limited amounts and in accordance with the terms
and conditions of such Rule, (vi) if the exemption afforded by Rule 144 is not
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available, public sale of the Shares without registration will require the
availability of an exemption under the Act, and (vii) a notation shall be made
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in the appropriate records of the Company indicating that the Shares are subject
to restrictions on transfer set forth in this Agreement and the Stockholders
Agreement and, if the Company should in the future engage the services of a
stock transfer agent, appropriate stop-transfer instructions will be issued to
such transfer agent with respect to the Shares.
(c) Ability to Bear Risk. The Purchaser represents and warrants that
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(i) the financial situation of the Purchaser is such that it can afford to bear
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the economic risk of holding the Shares for an indefinite period and (ii)
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Purchaser can afford to suffer the complete loss of its investment in the
Shares.
(d) Access to Information; Sophistication. The Purchaser represents
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and warrants that (i) Purchaser is familiar with the business and financial
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condition, properties, operations and prospects of the Company and that, it has
had, during the course of the transactions contemplated hereby, the opportunity
to ask questions of, and receive answers from, representatives of the Company
concerning the Company and the terms and conditions of the purchase of the
Shares and to obtain any additional information that Purchaser deems necessary,
(ii) Purchaser's knowledge and experience in financial and business matters is
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such that Purchaser is capable of evaluating the merits and risk of the
investment in the Shares and (iii) Purchaser has carefully reviewed the terms
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and provisions of the Stockholders Agreement and has evaluated the restrictions
and obligations contained therein. In furtherance of the foregoing, the
Purchaser represents and warrants that (i) no representation or warranty,
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express or implied, whether written or oral, as to the financial condition,
results of operations, prospects, properties or business of the Company or as to
the desirability or value of an investment in the Company has been made to it by
or on behalf of the Company, except for those representations and warranties
contained in Section 4 and the Stockholders Agreement, (ii) Purchaser has relied
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upon Purchaser's own independent appraisal and investigation, and the advice of
Purchaser's own counsel, tax advisors and other advisors, regarding the risks of
an investment in the Company and (iii) Purchaser will continue to bear sole
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responsibility for making its own independent evaluation and monitoring of the
risks of Purchaser's investment in the Company.
(e) Accredited Investor. The Purchaser represents and warrants that
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it is an "accredited investor" as such term is defined in Rule 501(a)
promulgated under the Act.
(f) Due Execution and Delivery. The Purchaser represents and
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warrants that (i) Purchaser has duly executed and delivered this Agreement, (ii)
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this Agreement constitutes and, upon execution thereof, the Stockholders
Agreement will constitute, the Purchaser's legal, valid
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and binding obligation, enforceable against it in accordance with its terms; and
(iii) no consent, approval, authorization, order, filing, registration or
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qualification of or with any court, governmental authority or third person is
required to be obtained by Purchaser in connection with the execution and
delivery of this Agreement or the performance of Purchaser's obligations
hereunder.
4. Representations and Warranties of the Company. The Company represents
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and warrants to the Purchaser that (i) the Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware, (ii) the execution and delivery of this Agreement, the performance of
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the Company's obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action on the part of the Company, (iii) this Agreement has
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been duly and validly executed and delivered by the Company and constitutes the
legal, valid and binding obligations of the Company enforceable against it in
accordance with its terms, except as the same may be affected by bankruptcy,
insolvency, moratorium or similar laws, or by legal or equitable principles
relating to or limiting the rights of contracting parties generally, and (iv)
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the Shares, when issued and delivered in accordance with the terms hereof, will
be duly authorized, validly issued, fully paid and nonassessable, and free and
clear of any liens or encumbrances other than those created pursuant to this
Agreement and the Stockholders Agreement or otherwise in connection with the
transactions contemplated hereby and thereby.
5. State Securities Laws. Notwithstanding anything in this Agreement to
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the contrary, the Company shall not have any obligation to sell any Shares to
the Purchaser, if the Purchaser is a resident of a jurisdiction in which the
sale of such Shares to the Purchaser would constitute a violation of the
securities, "blue sky" or other similar laws of such jurisdiction.
6. Stock Certificate Legends. The certificates representing the Shares
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being purchased by the Purchaser hereunder shall bear the following legends:
(i) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL
REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
UNLESS SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER
OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT, SUCH LAWS AND THE FIRST AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT OF THE COMPANY, DATED
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AS OF APRIL 4, 1997, AS THE SAME SHALL BE AMENDED FROM TIME TO TIME
(THE "STOCKHOLDERS AGREEMENT").
(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER, A VOTING AGREEMENT AND OTHER CONDITIONS
AND RESTRICTIONS, AS SPECIFIED IN THE STOCKHOLDERS AGREEMENT, COPIES
OF WHICH ARE ON FILE AT THE OFFICE OF THE COMPANY AND WILL BE
FURNISHED WITHOUT CHARGE TO THE STOCKHOLDER OF SUCH SHARES UPON
WRITTEN REQUEST.
(iii) THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OTHER SPECIAL RIGHTS OF EACH CLASS OR SERIES
OF SHARES AUTHORIZED TO BE ISSUED AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND OR RIGHTS.
In addition, certificates representing Shares owned by residents of certain
states shall bear any legends required by the laws of such states.
7. Miscellaneous.
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(a) Termination. This Agreement may be terminated by either the
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Company or the Purchaser upon written notice to the other if the Closing has not
occurred by April 15, 1997.
(b) Notices. All notices and other communications required or
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permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or by fax or sent by certified
mail, return receipt requested, postage prepaid, or by Federal Express or other
similar courier service to the parties to this Agreement at the following
addresses or to such other address as the party to this Agreement whose address
it is shall specify by notice to the other: if to the Purchaser, to the
Purchaser at the address set forth under the Purchaser's name on the signature
page of this Agreement; and if to the Company, to it at IXL Holdings, Inc., Two
Park Place, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
U. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., with copies to ▇▇▇▇▇ & Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Esq. and
▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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(c) Binding Effect; Benefits. This Agreement shall be binding upon
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and inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any person other than the parties to this
Agreement and their respective successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of any agreement or any
provision contained herein.
(d) Waiver; Amendment.
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(i) Waiver. No action taken pursuant to this Agreement,
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including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by such party taking such action of
compliance by any other party with any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by any party to exercise any right
or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
(ii) Amendments. Neither this Agreement nor any term or provision
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hereof may be amended, modified, waived or supplemented orally, but only by a
written instrument executed by the Company and the Purchaser.
(e) Assignability. Neither this Agreement nor any right, remedy,
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obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company without the prior written consent of the Purchaser or
by the Purchaser without the prior written consent of the Company.
(f) Applicable Law. This Agreement shall be governed by and
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construed in accordance with the law of the State of New York, regardless of the
law that might be applied under principles of conflicts of law.
(g) Section and Other Headings. The section and other headings
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contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
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(h) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original and both of which together shall
be deemed to be one and the same instrument.
(i) Pronouns. Any use of masculine pronouns herein shall be deemed
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to include the feminine and neuter cases, as applicable.
(j) Entire Agreement. The Stockholders Agreement and this Agreement
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shall constitute the entire agreement of the parties hereto with respect to the
subject hereof and shall supersede all prior agreements, arrangements,
understandings, documents, instruments and communications, whether written or
oral, with respect to the subject matter hereof and thereof.
(k) Severability. In case any provision of this Agreement shall be
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invalid or unenforceable in any jurisdiction, the validity and enforceability of
the remaining provisions shall not in any way be affected thereby.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the date first set forth above.
IXL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President
PURCHASER:
▇▇▇▇▇ INVESTMENT ASSOCIATES V, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
Title: General Partner
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