EXHIBIT 10.6
I. DEFINITIONS
1.1 Definitions.
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(a) "Award" shall mean an Option, which may be designated as a
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Nonqualified Stock Option or an Incentive Stock Option granted under this Plan.
(b) "Award Agreement" shall mean, as the case may be, the Incentive Stock
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Option Award Agreement substantially in the form of Exhibit A attached hereto
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and made a part herewith, setting forth the terms of an Award, or the Non-
Qualified Stock Option Award Agreement substantially in the form of Exhibit B
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attached hereto and made a part herewith setting forth the terms of an Award.
(c) "Award Date" shall mean the date upon which the Committee took the
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action granting an Award or such later date as is prescribed by the Committee.
(d) "Award Period" shall mean the period beginning on an Award Date and
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ending on the expiration date of such Award.
(e) "Beneficiary" shall mean the person, persons, trust or trusts entitled
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by will or the laws of descent and distribution to receive the benefits
specified under this Plan in the event of a Participant's death.
(f) "Board" shall mean the Board of Directors of the Corporation.
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(g) "Class B Common Stock" shall mean the Class B Common Stock, $.01 par
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value, of the Corporation.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time.
(i) "Commission" shall mean the Securities and Exchange Commission.
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(j) "Committee" shall mean the committee appointed by the Board and
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consisting of three or more members or if no such committee has been appointed,
the Board.
(k) "Company" shall mean, collectively, the Corporation and its
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Subsidiaries.
(l) "Corporation" shall mean iXL Enterprises, Inc., a Delaware
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corporation, and its successors.
(m) "Eligible Person" shall mean any Person designated by the Committee
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who is not an employee of the Company.
(n) "Event" shall mean approval by the stockholders of the Corporation of
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(i) the dissolution or liquidation of the Corporation; (ii) an agreement to
merge or consolidate, or otherwise reorganize, with or into one or more entities
which are not Subsidiaries, as a result of which less than 50% of the
outstanding voting securities of the surviving or resulting entity are, or are
to be, owned by the stockholders (or their affiliates) of the Corporation
immediately prior to such transaction; (iii) the sale of substantially all of
the Corporation's business and/or assets to a person or entity which is not a
Subsidiary or a stockholder (or an affiliate of a stockholder) immediately prior
to such sale; or (iv) a tender offer by a person other than a stockholder (or an
affiliate thereof) of the Corporation) pursuant to which the offeror acquires
more than 50% of the Corporation's outstanding voting securities.
(o) "Fair Market Value shall mean (i) the per share closing sales price of
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the Class B Common Stock on the date at which Fair Market Value is to be
determined (the "Determination Date") on the national securities exchange having
the greatest volume of trading in the Class B Common Stock during the 30-day
period immediately preceding that time as reported in The Wall Street Journal;
(ii) if the Class B Common Stock is not listed or admitted to trade on any
national securities exchange, the per share closing sales price for the Class B
Common Stock on the Determination Date at which Fair Market Value is to be
determined, as quoted in the National Association of Securities Dealers
Automated Quotation (NASDAQ) National Market Reporting System, or any successor
system, as reported in The Wall Street Journal; (iii) if the Class B Common
Stock is not listed or admitted to trade on any national securities exchange and
is not quoted on the NASDAQ National Market Reporting System, the average of the
per share closing bid and asked sales prices for the Class B Common Stock on the
over-the-counter market on the Determination Date at which Fair Market Value is
to be determined, as quoted on NASDAQ or such other national reporting service,
as reported in The Wall Street Journal; or (iv) if the Class B Common Stock is
not listed or admitted to trade on a national securities exchange, is not quoted
on the NASDAQ National Market Reporting System and if the bid and asked sales
prices for the Class B Common Stock are not furnished by the National
Association of Securities Dealers, Inc. or a similar organization, the Fair
Market Value of a share of Class B Common Stock as of the Determination Date at
which Fair Market Value is to be determined, and established by the Committee
under the Plan based on such relevant facts, which may include opinions of
independent experts or annual appraisals of the fair market value of the
Company, as may be available to the Committee.
(p) "Incentive Stock Option" shall mean an option which is designated as
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an incentive stock option within the meaning of Section 422 of the Code, the
award of which contains such provisions as are necessary to comply with that
section.
(q) "Nonqualified Stock Option" shall mean an option which is designated
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as a Nonqualified Stock Option.
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(r) "Option" shall mean an option to purchase Class B Common Stock under
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this Plan. An Option shall be designated by the Committee as a Nonqualified
Stock Option or an Incentive Stock Option.
(s) "Participant" shall mean an Eligible Person who has been awarded an
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Award.
(t) "Person" shall mean any individual, corporation, partnership, limited
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liability company, joint venture, association, trust or other business entity.
(u) "Personal Representative" shall mean the person or persons who, upon
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the disability or incompetence of a Participant, shall have acquired on behalf
of the Participant by legal proceeding or otherwise the legal power to exercise
the rights and receive the benefits specified in this Plan.
(v) "Plan" shall mean the iXL Enterprises, Inc., 1998 Non-Employee Stock
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Option Plan, as amended from time to time in accordance herewith.
(w) "Securities Act" shall mean the Securities Act of 1933, as amended.
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(x) "Subsidiary" shall mean any corporation or other entity a majority or
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more of whose outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Corporation.
II. THE PLAN
2.1 Purpose.
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The purpose of this Plan is to promote the success of the Company by
providing an additional means to attract and retain key personnel through added
long term incentives for high levels of performance and for significant efforts
to improve the financial performance of the Company by granting Awards.
2.2 Administration.
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(a) This Plan shall be administered by the Committee. Action of the
Committee with respect to the administration of this Plan shall be taken
pursuant to a majority vote or the written consent of a majority of its members.
If action by the Committee is taken by written consent, the action shall be
deemed to have been taken at the time specified in the consent or, if none is
specified, at the time of the last signature. The Committee may delegate
administrative functions to individuals who are officers or employees of the
Company.
(b) Subject to the express provisions of this Plan, the Committee
shall have the authority to construe and interpret this Plan and any agreements
defining the rights and obligations
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of the Company and Participants under this Plan, to further define the terms
used in this Plan, to prescribe, amend and rescind rules and regulations
relating to the administration of this Plan, to determine the duration and
purposes of leaves of absence which may be granted to Participants without
constituting a termination of their engagement for purposes of this Plan and to
make all other determinations necessary or advisable for the administration of
this Plan. The determinations of the Committee on the foregoing matters shall be
conclusive.
(c) Any action taken by, or inaction of, the Corporation, any
Subsidiary, the Board or the Committee relating to this Plan shall be within the
absolute discretion of that entity or body and shall be conclusive and binding
upon all persons. No member of the Board or Committee, or officer of the
Corporation or Subsidiary, shall be liable for any such action or inaction of
the entity or body, of another person or, except in circumstances involving bad
faith, of himself or herself. Subject only to compliance with the express
provisions hereof, the Board and Committee may act in their absolute discretion
in matters related to this Plan.
2.3 Participation.
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Awards may be granted only to Eligible Persons. An Eligible Person who
has been granted an Award may, if otherwise eligible, be granted additional
Awards if the Committee shall so determine. Officers and Members of the Board
who are not employees of the Company shall be eligible to receive Awards.
2.4 Stock Subject to the Plan.
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The stock to be offered under this Plan shall be shares of the
Company's authorized but unissued Class B Common Stock. The aggregate amount of
Class B Common Stock that may be issued or transferred pursuant to Awards
granted under this Plan shall not exceed One Million (1,000,000) shares, subject
to adjustment as set forth in Section 4.2. If any Option shall lapse or
terminate (either by its terms or as a result of the repurchase by the Company
of such Option) without having been exercised in full, the unpurchased shares
subject thereto shall again be available for purposes of this Plan.
2.5 Grant of Options.
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Subject to the express provisions of the Plan, the Committee shall
determine from the class of Eligible Persons those individuals to whom Options
under the Plan shall be granted, the terms of Options (which need not be
identical) and the number of shares of Class B Common Stock subject to each
Option. Each Option shall be subject to the terms and conditions set forth in
the Plan and such other terms and conditions established by the Committee and as
set forth in the Award Agreement as are not inconsistent with the purpose and
provisions of the Plan. The grant of an Option is made on the Award Date.
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2.6 Exercise of Options.
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An Option shall be deemed to be exercised when the Secretary or
Assistant Secretary of the Corporation receives written notice of such exercise
from the Participant, together with payment of the purchase price made in
accordance with Section 3.2. Notwithstanding any other provision of this Plan,
the Committee may impose, by rule or in Award Agreements, such conditions upon
the exercise of Options (including, without limitation, vesting of exercise
rights and conditions limiting the time of exercise to specified periods) as may
be required to satisfy applicable securities laws, regulatory requirements or as
may be deemed necessary or advisable by the Committee. It shall be a condition
to the exercise of any Options that the Eligible Person exercising such Option
execute and become subject to the Stockholder Agreement of the Corporation dated
as of April 30, 1996, as the same may be amended from time to time.
III. OPTIONS
3.1 Grants.
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One or more Options may be granted to any Eligible Person. Each Option
so granted shall be designated by the Committee as either a Nonqualified Stock
Option or an Incentive Stock Option.
3.2 Option Price.
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The purchase price per share of the Class B Common Stock covered by
each Option shall be determined by the Committee, but in the case of Incentive
Stock Options shall not be less than 100% (110% in the case of a Participant who
owns more than 10% of the total combined voting power of all classes of stock of
the Company) of the Fair Market Value of the Class B Common Stock on the date
the Incentive Stock Option is granted. The purchase price of any shares
purchased shall be paid in full at the time of each purchase in one or a
combination of the following methods: (i) in cash, or by certified or cashier's
check payable to the order of the Corporation, (ii) if authorized by the
Committee or specified in the Option being exercised, by a promissory note made
by the Participant in favor of the Corporation, upon the terms and conditions
determined by the Committee, and secured by the Class B Common Stock issuable
upon exercise in compliance with applicable law (including, without limitation,
state corporate law and federal margin requirements), or (iii) if authorized by
the Committee, by shares of Class B Common Stock of the Corporation already
owned by the Participant, provided such shares are publicly traded; provided,
however, the Committee may in its absolute discretion limit the Participant's
ability to exercise an Option by delivering shares, and any shares delivered
which were initially acquired upon exercise of a stock option must have been
owned by the Participant at least six months as of the date of delivery. Shares
of Class B Common Stock used to satisfy the exercise price of an Option shall be
valued at their Fair Market Value on the date of exercise.
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3.3 Option Period.
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Each Option and all rights or obligations thereunder shall expire on
such date as shall be determined by the Committee and set forth in the Award
Agreement, but not later than 10 years after the Award Date in the case of an
Incentive Stock Option (five years in the case of a person described in Section
3.5(c)), and shall be subject to earlier termination as hereinafter provided or
as provided in any Award Agreement.
3.4 Exercise of Options.
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Except as otherwise provided in Section 4.4, an Option may become
exercisable, in whole or in part, on the date or dates specified in the Award
Agreement and thereafter shall remain exercisable until the expiration or
earlier termination of such Option. No Option shall be exercisable except in
respect of whole shares, and fractional share interests shall be disregarded.
Subject to any requirement of law, not less than 10 shares of Class B Common
Stock may be purchased at one time unless the number purchased is the total
number at the time available for purchase under the terms of the Option.
3.5 Limitations on Grant of Incentive Stock Options.
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(a) The aggregate Fair Market Value (determined as of the Award Date)
of the Class B Common Stock for which Incentive Stock Options may first become
exercisable by any Participant during any calendar year under this Plan,
together with that of Class B Common Stock subject to Incentive Stock Options
first exercisable (other than as a result of acceleration pursuant to Section
4.2 or 4.4) by such Participant under any other plan of the Corporation or any
Subsidiary, shall not exceed $100,000.
(b) There shall be imposed in the Award Agreement relating to
Incentive Stock Options such terms and conditions as are required in order that
the Option be an "incentive stock option" as that term is defined in Section 422
of the Code.
(c) No Incentive Stock Option may be granted to any person who, at
the time the Incentive Stock Option is granted, owns shares of stock of the
Corporation or any Subsidiary possessing more than 10% of the total combined
voting power of all classes of stock of the Company, unless the exercise price
of such Option is at least 110% of the Fair Market Value of the stock subject to
the Option and such Option by its terms is not exercisable after the expiration
of five years from the date such Option is granted.
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IV. OTHER PROVISIONS
4.1 Rights of Eligible Persons, Participants and Beneficiaries.
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(a) Status as an Eligible Person shall not be construed as a
commitment that any Award will be made under this Plan to an Eligible Person or
to Eligible Persons generally.
(b) Nothing contained in this Plan (or in Award Agreements or in any
other documents related to this Plan or to Options) shall confer upon any
Eligible Person or Participant any right to continue any business relationship
with the Company or constitute any contract or agreement of engagement (as an
employee, consultant or otherwise), or interfere in any way with the right of
the Company to reduce such person's compensation or to terminate the engagement
of such Eligible Person or Participant, with or without cause, but nothing
contained in this Plan or any document related thereto shall affect any other
contractual right of any Eligible Person or Participant.
(c) Other than by will or the laws of descent and distribution, no
interest in this Plan or in any Option shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge and any such attempted action shall be void and no such benefit or
interest shall be, in any manner, liable for, or subject to, debts, contracts,
liabilities, engagements or torts of any Eligible Person, Participant or
Beneficiary. The Committee shall disregard any attempted transfer, assignment or
other alienation prohibited by the preceding sentence and shall pay or deliver
such cash or shares of Class B Common Stock in accordance with the provisions of
this Plan. Further, any shares of Class B Common Stock purchased upon the
exercise of any Option shall be subject to the Second Amended and Restated
Stockholders' Agreement of the Company dated December 17, 1997, as the same may
be amended from time to time.
(d) No Participant, Beneficiary or other person shall have any right,
title or interest in any fund or in any specific asset (including shares of
Class B Common Stock) of the Company by reason of any Option granted hereunder.
Neither the provisions of this Plan (or of any documents related hereto), nor
the creation or adoption of this Plan, nor any action taken pursuant to the
provisions of this Plan shall create, or be construed to create, a trust of any
kind or a fiduciary relationship between the Company and any Participant,
Beneficiary or other person. To the extent that a Participant, Beneficiary or
other person acquires a right to receive an Option hereunder, such right shall
be no greater than the right of any unsecured general creditor of the Company.
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4.2 Adjustments Upon Changes in Capitalization.
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(a) If the outstanding shares of Class B Common Stock are increased,
decreased or changed into, or exchanged for, a different number or kind of
shares or securities of the Corporation through a reorganization or merger in
which the Corporation is the surviving entity, or through a combination,
recapitalization, reclassification, stock split, stock dividend, stock
consolidation or otherwise, an appropriate adjustment shall be made in the
number and kind of shares that may be issued pursuant to Options. A
corresponding adjustment to the consideration payable with respect to Options
granted prior to any such change shall also be made. Any such adjustment,
however, shall be made without change in the total payment, if any, applicable
to the portion of the Option not exercised but with a corresponding adjustment
in the price for each share.
(b) Upon the dissolution or liquidation of the Corporation, or upon a
reorganization, merger or consolidation of the Corporation with one or more
corporations as a result of which the Corporation is not the surviving
corporation, the Plan shall terminate, and any outstanding Options shall,
subject to the provisions of Section 4.4, terminate and be forfeited.
Notwithstanding the foregoing, the Committee may provide in writing in
connection with, or in contemplation of, any such transaction for any or all of
the following alternatives (separately or in combinations): (i) for the
assumption by the successor corporation of the Options theretofore granted or
the substitution by such corporation for such Options of Options covering the
stock of the successor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices; (ii) for
the continuance of the Plan by such successor corporation in which event the
Plan and the Options shall continue in the manner and under the terms so
provided; or (iii) for the payment in cash or shares of Class B Common Stock in
lieu of and in complete satisfaction of such Awards.
(c) All determinations under this Section 4.2 shall be made by the
Committee with the purpose of neither enlarging nor diminishing the rights or
obligations hereunder or under any then outstanding Option. In adjusting Options
to reflect the changes described in this Section 4.2, or in determining that no
such adjustment is necessary, the Committee may rely upon the advice of counsel
and accountants of the Corporation, and the determination of the Committee shall
be conclusive. No fractional shares of stock shall be issued under this Plan on
account of any such adjustment.
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4.3 Termination of Engagement.
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(a) If a Participant is engaged by the Company as an independent
contractor and such Participant ceases to have a business relationship with the
Company, either as an independent contractor or employee of the Company, for any
reason including, death or disability, then the Committee shall have the
discretion to terminate the Option or any part thereof prior to the expiration
date therefor in the Award Agreement upon thirty (30) days notice to the
Participant; provided, however, that in the case of Incentive Stock Options,
military leaves of absence, sick leave and any other bona fide leaves of absence
shall not be considered a termination of such relationship as long as such leave
does not extend beyond 90 days or if the Participant's reemployment rights are
guaranteed by law (as with certain federal military reservist laws, certain
state maternity or paternity leave laws) or by contract.
(b) If a Participant is engaged by the Company as an independent
contractor and such Participant ceases to have a business relationship with the
Company, either as an independent contractor or employee of the Company, as a
result of disability, the Participant or Participant's Personal Representative
may subject to Section 4.3(a) exercise any Option to the extent it shall have
become exercisable; provided, however, that in the case of Incentive Stock
Options, the Participant or Participant's Personal Representative must exercise
an Option to the extent it shall have become exercisable within one year of the
termination of such relationship.
(c) If a Participant is engaged by the Company as an independent
contractor and such Participant ceases to have a business relationship with the
Company, either as an independent contractor or employee of the Company, as a
result of death while the Participant is so engaged or employed by the Company
(or in the case of Incentive Stock Options was last engaged or employed by the
Company within three months before his death), the Participant's Option shall
subject to Section 4.3(a) be exercisable by the Participant's Beneficiary to the
extent such Option was exercisable immediately prior to the date of death (or
earlier termination).
(d) Notwithstanding the foregoing, in the event that the business
relationship between the Participant and the Company is terminated for any
reason, other than a termination for cause, the Committee may, in its discretion
and in connection with such termination, increase the portion of the
Participant's Option available to the Participant, or Participant's Beneficiary
or Personal Representative, as the case may be, upon such terms as the Committee
shall determine.
(e) If an entity ceases to be a Subsidiary, such action shall be
deemed for purposes of this Section 4.3 to be a termination of the business
relationship between the Company and each Eligible Person and Participant
engaged (as an independent contractor or employee) by that entity.
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4.4 Acceleration of Options.
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The Options shall not be accelerated unless and until the Board
determines that there shall be an acceleration of Options. Acceleration of
Options shall comply with applicable regulatory requirements, including without
limitation, Section 422 of the Code.
4.5 Government Regulations.
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This Plan, the granting of Options under this Plan and the issuance or
transfer of shares of Class B Common Stock (and/or the payment of money)
pursuant thereto are subject to all applicable federal and state laws, rules and
regulations and to such approvals by any regulatory or governmental agency
(including without limitation "no action" positions of the Commission) which
may, in the opinion of counsel for the Corporation, be necessary or advisable in
connection therewith. Without limiting the generality of the foregoing, no
Options may be granted under this Plan, and no shares shall be issued by the
Corporation, pursuant to any such Option, unless and until, in each such case,
all legal requirements applicable to the issuance have, in the opinion of
counsel to the Corporation, been complied with. In connection with any stock
issuance or transfer, the person acquiring the shares shall, if requested by the
Corporation, give assurances satisfactory to counsel to the Corporation in
respect of such matters as the Corporation may deem desirable to assure
compliance with all applicable legal requirements.
4.6 Tax Withholding.
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Upon the disposition by a Participant or other person of shares of
Class B Common Stock acquired pursuant to the exercise of an Incentive Stock
Option prior to satisfaction of the holding period requirements of Section 422
of the Code, or upon the exercise of a Nonqualified Stock Option, the Company
shall have the right to require such Participant or such other person to pay by
cash, or certified or cashier's check payable to the Company, the amount of any
taxes which the Company may be required to withhold with respect to such
transactions and the issuance of any shares of Class B Common Stock pursuant to
the exercise of a Nonqualified Stock Option will be subject to the Participant's
(or other person's) satisfaction of all such tax withholding obligations.
4.7 Amendment, Termination, and Suspension.
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(a) The Board may, at any time, terminate or, from time to time,
amend, modify or suspend this Plan (or any part hereof). In addition, the
Committee may, from time to time, amend or modify any provision of this Plan
except Section 4.4 and, with the consent of the Participant, make such
modifications of the terms and conditions of such Participant's Option as it
shall deem advisable. No Options may be granted during any suspension of this
Plan or after its termination.
(b) If an amendment would (i) increase the aggregate number of shares
which may be issued under this Plan, or (ii) modify the requirements of
eligibility for participation in this Plan, the amendment shall be approved by
the Board or the Committee and by a majority of the
10
stockholders entitled to vote thereon.
(c) In the case of Options issued before the effective date of any
amendment, suspension or termination of this Plan, such amendment, suspension or
termination of the Plan shall not, without specific action of the Board and
consent of the Participant, in any way modify, amend, alter or impair any rights
or obligations under any Option previously granted under the Plan.
4.8 Privileges of Stock Ownership; Nondistributive Intent.
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A Participant shall not be entitled to the privilege of stock
ownership as to any shares of Class B Common Stock not actually issued to him.
Upon the issuance and transfer of shares to the Participant, unless a
registration statement is in effect under the Securities Act, relating to such
issued and transferred Class B Common Stock and there is available for delivery
a prospectus meeting the requirements of Section 10 of the Securities Act, the
Class B Common Stock may be issued and transferred to the Participant only if he
represents and warrants in writing to the Corporation that the shares are being
acquired for investment and not with a view to the resale or distribution
thereof and there is an available exemption from the federal and applicable
state securities laws. No shares shall be issued and transferred unless and
until there shall have been full compliance with any the applicable regulatory
requirements (including those of exchanges upon which any Class B Common Stock
of the Corporation may be listed).
4.9 Effective Date of the Plan.
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This Plan shall be effective upon its approval by the Board.
4.10 Term of the Plan.
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Unless previously terminated by the Board, this Plan shall terminate
at the close of business on the tenth anniversary of the date on which this Plan
is approved by the Board, and no Options shall be granted under it thereafter,
but such termination shall not affect any Option theretofore granted.
4.11 Governing Law.
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This Plan and the documents evidencing Options and all other related
documents shall be governed by, and construed in accordance with, the laws of
the State of Delaware. If any provision shall be held by a court of competent
jurisdiction to be invalid and unenforceable, the remaining provisions of this
Plan shall continue to be fully effective.
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EXHIBIT A
INCENTIVE STOCK
OPTION AWARD AGREEMENT
THIS AWARD AGREEMENT is dated as of the ___ day of _______, 1998, by and
between iXL Enterprises, Inc., a Delaware corporation (the "Corporation") f/k/a
IXL Holdings, Inc., and _______________ (the "Participant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on ___________, 1998, pursuant to the Corporation's 1998 Non-Employee
Stock Option Plan (hereinafter, the term "Plan"; and such other capitalized
terms as used herein without definition having the meaning ascribed to them in
the Plan), the Committee of the Corporation's Board of Directors (the
"Committee") has granted to the Participant, effective as of __________, 1998
(the "Award Date"), an incentive stock option ("Option" or "Award") to purchase
all or any part of the total number of shares of Class B Common Stock, $.01 par
value of the Corporation ("Stock") set forth on Schedule I hereto upon the terms
and conditions hereinafter set forth; and
WHEREAS, the Participant and the Corporation desire to enter into a written
agreement in accordance with the Plan;
NOW THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom, the parties hereto agree
as follows:
1. GRANT OF OPTION. The Corporation has granted to the Participant, as a
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matter of separate inducement and agreement in connection with the business
relationship between the Corporation and the Participant, and not in lieu of any
compensation for their services, the right and option to purchase, in accordance
with the Plan and subject to the terms and conditions thereof and those
hereinafter set forth, all or any part of the total number of shares of Stock
set forth on Schedule I attached hereto and incorporated herein ("Schedule I"),
at the exercise price per share set forth on Schedule I (the "Price"),
exercisable from time to time subject to the provisions hereof prior to the
close of business on __________ (the "Expiration Date"). The Price has been
determined by the Committee in accordance with Section 3.2 of the Plan.
2. EXERCISABILITY OF OPTION. Except as otherwise provided herein, the Option
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may be exercised in accordance with the vesting schedule set forth on Schedule
II attached hereto and incorporated herein ("Schedule II"), and the Option may
only be exercised at any given time to the extent that the Option has vested in
accordance with Schedule II; provided, however, that the Option may be exercised
only prior to the Expiration Date, and may not be exercised as to less than 10
shares of Stock at any one time unless the number of shares purchased is the
total number at the time available for purchase under the Option. Furthermore,
the Option may be exercised only after the Stock into which the Option is
exercisable has been registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Corporation will register such Stock under the
Securities Act no later than the sixth anniversary of the date of grant; and in
any event, notwithstanding the
preceding sentence, the Option may be exercised after such sixth anniversary.
The Option may be exercised only as to whole shares; fractional share interests
shall be disregarded except that they may be accumulated. A condition to the
exercise of any Option shall be the execution by the Participant of the
Corporation's Second Amended and Restated Stockholders' Agreement dated December
17, 1997, as the same may be amended from time to time.
3. METHOD OF EXERCISE AND PAYMENT. Each exercise of any part of the Option
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shall be by means of written notice of exercise duly delivered to the
Corporation, specifying the number of whole shares of Stock with respect to
which the Option is being exercised, together with any written statements
required pursuant to Section 10 below and payment of the Price in full (i) in
cash or by certified or cashier's check payable to the order of the Corporation,
(ii) if authorized by the Committee, by a promissory note made by the
Participant in favor of the Corporation, upon the terms and conditions
determined by the Committee, and secured by the Stock issuable upon exercise in
compliance with applicable law (including state corporate law and federal margin
requirements), or (iii) if authorized by the Committee and there is a public
market for the Stock, by delivery of shares of Stock already owned by the
Participant for at least six months.
4. CONTINUANCE OF RELATIONSHIP. Nothing contained herein or in the Plan
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shall confer upon the Participant any right to continue in any business
relationship with the Corporation, or any subsidiary or other affiliate thereof,
or constitute any contract or agreement of engagement or employment. Nothing
contained herein or in the Plan shall interfere in any way with the right of the
Corporation to (i) terminate its relationship, if any, with the Participant, or
(ii) reduce any compensation received by the Participant from the rate in
existence on the Award Date; provided that nothing herein shall modify any
written agreement as may now exist or hereinafter be entered into between
Participant and the Corporation.
5. EFFECT OF TERMINATION OF RELATIONSHIP. If the Participant is engaged on
-------------------------------------
the date hereof as an independent contractor by the Corporation, or by any
subsidiary or other affiliate thereof, and later ceases to have a business
relationship with the Corporation, or any subsidiary or other affiliate thereof,
either as an independent contractor or employee of any such entity, for any
reason other than breach by the Corporation of any written agreement in effect
between the Participant and the Corporation, the Option shall terminate to the
extent not vested. Notwithstanding the vesting schedule in Schedule II, if the
Corporation has materially breached any written agreement with the Participant,
and as a result Participant's relationship with the Corporation or any
subsidiary or other affiliate thereof is terminated, then to the extent provided
in such written agreement the Option shall become fully vested upon such
termination of relationship. However, in no event may any Option be exercised
by any person after the Expiration Date.
6. NON-ASSIGNABILITY OF OPTION. Interests in the Option shall not be subject
---------------------------
to sale, transfer, pledge, assignment or alienation other than by will or the
laws of descent and distribution regardless of any interest therein of the
Participant's spouse or such spouse's successor in interest.
7. ADJUSTMENTS UPON SPECIFIED CHANGES. As set forth in Section 4.2 of the
----------------------------------
Plan, upon the occurrence of specified events relating to the Corporation's
stock, adjustments will be made in the number and kind of shares that may be
issuable under an Option to the extent deemed appropriate by the Committee. In
addition, upon the occurrence of specified events relating to the
2
Corporation, such as its dissolution or liquidation, a reorganization, merger or
consolidation in which it is not the surviving corporation, or upon sale of all
or substantially all of the Corporation's property, unless provision is
otherwise made and subject to the provisions of Section 4.4 of the Plan, the
Plan and any outstanding Options will terminate.
8. NO AUTOMATIC ACCELERATION. Options shall not be accelerated unless and
-------------------------
until the Board determines that there shall be an acceleration of Options in
accordance with Section 4.4 of the Plan.
9. PARTICIPANT NOT A STOCKHOLDER. Neither the Participant nor any other
-----------------------------
person entitled to exercise the Option shall have any of the rights or
privileges of a stockholder of the Corporation as to any shares of Stock not
actually issued and delivered to them. No adjustment will be made for dividends
or other rights for which the record date is prior to the date on which such
stock certificate(s) is issued even if such record date is subsequent to the
date upon which notice of exercise was delivered and the tender of payment was
accepted.
10. APPLICATION OF SECURITIES LAWS.
------------------------------
(a) No shares of Stock may be purchased pursuant to the Option unless and
until any then applicable requirements of the Securities and Exchange Commission
and any other regulatory agency, including any state securities law commissioner
having jurisdiction over the Corporation or such issuance, and any exchange upon
which Stock is listed, shall have been fully satisfied. The Participant
represents, agrees and certifies that if the Participant exercises the Option,
in whole or in part, the Participant will acquire the Stock issuable upon such
exercise for the purpose of investment and not with a view to resale or
distribution and that, as a condition to each such exercise, the Participant
will furnish to the Corporation a written statement to such effect, satisfactory
in form and substance to the Corporation.
(b) The Participant understands that the certificate(s) representing the
Stock acquired pursuant to the Option may bear a legend referring to the fact
that the Stock has not been registered under the Securities Act, and has not
been qualified under any state securities law and is subject to certain
restrictions on transfer and other limitations under the Securities Act and
state securities laws with respect to the transfer of such Stock, and the
Corporation may impose stop transfer instructions to implement such limitations,
if applicable. Any person(s) entitled to exercise the Option under the
provisions of Section 6 above shall be bound by and obligated under the
provisions of this Section 10 to the same extent as is the Participant.
(c) The Committee may impose such conditions on an Option or on its
exercise or acceleration or on the payment of any withholding obligation
(including restricting the time of exercise to specified periods) as may be
required to satisfy applicable regulatory requirements.
11. NOTICES. Any request or notice to be given hereunder shall be deemed
-------
given, and any election or exercise to be made or accomplished shall be deemed
made or accomplished, upon actual delivery thereof to the designated recipient,
or three days after deposit thereof in the United States mail, registered,
return receipt requested and postage prepaid, addressed, if to the Participant,
3
at the address given beneath the Participant's signature set forth below, and if
to the Corporation, at the executive offices of the Corporation.
12. EFFECT OF AWARD AGREEMENT. The Award Agreement shall be assumed by, be
-------------------------
binding upon and inure to the benefit of (i) any successor(s) of the Corporation
to the extent provided in Section 4.2(b) of the Plan, and (ii) any Beneficiary
or Personal Representative of the Participant as provided in Section 4.3 of the
Plan.
13. TAX WITHHOLDING. The provisions of Section 4.6 of the Plan are hereby
---------------
incorporated and shall govern any withholding that the Corporation employing the
Participant is required to make with respect to an exercise of the Option, as
well as the Corporation's right to condition a transfer of Class A Common Stock
or Class B Common Stock upon compliance with the applicable withholding
requirements of federal, state and local authorities.
14. TERMS OF PLAN GOVERN. The Option and this Award Agreement are subject
--------------------
to, and the Corporation and the Participant agree to be bound by, all of the
terms and conditions of the Plan. The Participant acknowledges receipt of a
copy of the Plan, which is made a part hereof by this reference. The rights of
the Participant are subject to limitations, adjustments, modifications,
suspension and termination in certain circumstances and upon the occurrence of
certain conditions as set forth in the Plan.
15. LAWS APPLICABLE TO CONSTRUCTION. The Option has been granted, executed
-------------------------------
and delivered as of the day and year first above written, and the
interpretation, performance and enforcement of the Option and this Award
Agreement shall be governed by the laws of the State of Delaware (excluding its
conflicts of law principles).
16. NOTICE OF DISPOSITION. The Participant agrees to notify the Corporation
---------------------
of any sale or other disposition of any shares of Stock received upon exercise
of the Option if such sale or disposition occurs within two years after the
Award Date or within one year after the date of exercise of the Option.
17. COUNTERPARTS. This Award Agreement may be executed and delivered in one
------------
or more counterparts, each of which shall be considered an original but which,
together, shall constitute one and the same document.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
4
IN WITNESS WHEREOF, the Corporation has caused this Award Agreement to be
executed on its behalf by a duly authorized officer and the Participant has
hereunto set his hand as of the date and year first above written.
IXL ENTERPRISES, INC.
BY: _________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, EXECUTIVE VICE PRESIDENT
PARTICIPANT
___________________________________________
[name]
___________________________________________
(Address)
___________________________________________
(City, State, Zip Code)
___________________________________________
(Social Security Number)
5
SCHEDULE I
NUMBER OF SHARES AND EXERCISE PRICE
[__________]
Number of Class B Option Shares Exercise Price Per Share
------------------------------- ------------------------
____ $____
6
SCHEDULE II
VESTING OF OPTION PERIOD
[___________]
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
7
EXHIBIT B
NON-QUALIFIED STOCK
OPTION AWARD AGREEMENT
THIS AWARD AGREEMENT is dated as of the ___ day of _______, 1998, by and
between iXL Enterprises, Inc., a Delaware corporation (the "Corporation") f/k/a
IXL Holdings, Inc., and _______________ (the "Participant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on ___________, 1998, pursuant to the Corporation's 1998 Non-Employee
Stock Option Plan (hereinafter, the term "Plan"; and such other capitalized
terms as used herein without definition having the meaning ascribed to them in
the Plan), the Committee of the Corporation's Board of Directors (the
"Committee") has granted to the Participant, effective as of __________, 1998
(the "Award Date"), a non-qualified stock option ("Option" or "Award") to
purchase all or any part of the total number of shares of Class B Common Stock,
$.01 par value of the Corporation ("Stock") set forth on Schedule I hereto upon
the terms and conditions hereinafter set forth; and
WHEREAS, the Participant and the Corporation desire to enter into a written
agreement in accordance with the Plan;
NOW THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom, the parties hereto agree
as follows:
1. GRANT OF OPTION. The Corporation has granted to the Participant, as a
---------------
matter of separate inducement and agreement in connection with the business
relationship between the Corporation and Participant, and not in lieu of any
compensation for their services, the right and option to purchase, in accordance
with the Plan and subject to the terms and conditions thereof and those
hereinafter set forth, all or any part of the total number of shares of Stock
set forth on Schedule I attached hereto and incorporated herein ("Schedule I"),
at the exercise price per share set forth on Schedule I (the "Price"),
exercisable from time to time subject to the provisions hereof prior to the
close of business on __________ (the "Expiration Date"). The Price has been
determined by the Committee in accordance with Section 3.2 of the Plan.
2. EXERCISABILITY OF OPTION. Except as otherwise provided herein, the Option
------------------------
may be exercised in accordance with the vesting schedule set forth on Schedule
II attached hereto and incorporated herein ("Schedule II"), and the Option may
only be exercised at any given time to the extent that the Option has vested in
accordance with Schedule II; provided, however, that the Option may be exercised
only prior to the Expiration Date, and may not be exercised as to less than 10
shares of Stock at any one time unless the number of shares purchased is the
total number at the time available for purchase under the Option. Furthermore,
the Option may be exercised only after the Stock into which the Option is
exercisable has been registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Corporation will register such Stock under the
Securities Act no later than the sixth anniversary of the date of grant; and in
any event, notwithstanding the
preceding sentence, the Option may be exercised after such sixth anniversary.
The Option may be exercised only as to whole shares; fractional share interests
shall be disregarded except that they may be accumulated. A condition to the
exercise of any Option shall be the execution by the Participant of the
Corporation's Second Amended and Restated Stockholders' Agreement dated December
17, 1997, as the same may be amended from time to time.
3. METHOD OF EXERCISE AND PAYMENT. Each exercise of any part of the Option
------------------------------
shall be by means of written notice of exercise duly delivered to the
Corporation, specifying the number of whole shares of Stock with respect to
which the Option is being exercised, together with any written statements
required pursuant to Section 10 below and payment of the Price in full (i) in
cash or by certified or cashier's check payable to the order of the Corporation,
(ii) if authorized by the Committee, by a promissory note made by the
Participant in favor of the Corporation, upon the terms and conditions
determined by the Committee, and secured by the Stock issuable upon exercise in
compliance with applicable law (including state corporate law and federal margin
requirements), or (iii) if authorized by the Committee and there is a public
market for the Stock, by delivery of shares of Stock already owned by the
Participant for at least six months.
4. CONTINUANCE OF RELATIONSHIP. Nothing contained herein or in the Plan
---------------------------
shall confer upon the Participant any right to continue in any business
relationship with the Corporation, or any subsidiary or other affiliate thereof,
or constitute any contract or agreement of engagement or employment. Nothing
contained herein or in the Plan shall interfere in any way with the right of the
Corporation to (i) terminate its relationship, if any, with the Participant, or
(ii) reduce any compensation received by the Participant from the rate in
existence on the Award Date; provided that nothing herein shall modify any
written agreement as may now exist or hereinafter be entered into between
Participant and the Corporation.
5. EFFECT OF TERMINATION OF RELATIONSHIP. If the Participant is engaged on
-------------------------------------
the date hereof as an independent contractor by the Corporation, or by any
subsidiary or other affiliate thereof, and later ceases to have a business
relationship with the Corporation, or any subsidiary or other affiliate thereof,
as either an independent contractor or an employee of any such entity, for any
reason other than breach by the Corporation of any written agreement in effect
between the Participant and the Corporation, the Option shall terminate to the
extent not vested. Notwithstanding the vesting schedule in Schedule II, if the
Corporation has materially breached any written agreement with the Participant,
and as a result Participant's relationship with the Corporation or any
subsidiary or other affiliate thereof is terminated, then to the extent provided
in such written agreement the Option shall become fully vested upon such
termination of relationship. However, in no event may any Option be exercised
by any person after the Expiration Date.
6. NON-ASSIGNABILITY OF OPTION. Interests in the Option shall not be subject
---------------------------
to sale, transfer, pledge, assignment or alienation other than by will or the
laws of descent and distribution regardless of any interest therein of the
Participant's spouse or such spouse's successor in interest.
7. ADJUSTMENTS UPON SPECIFIED CHANGES. As set forth in Section 4.2 of the
----------------------------------
Plan, upon the occurrence of specified events relating to the Corporation's
stock, adjustments will be made in the number and kind of shares that may be
issuable under an Option to the extent deemed appropriate by the Committee. In
addition, upon the occurrence of specified events relating to the
2
Corporation, such as its dissolution or liquidation, a reorganization, merger or
consolidation in which it is not the surviving corporation, or upon sale of all
or substantially all of the Corporation's property, unless provision is
otherwise made and subject to the provisions of Section 4.4 of the Plan, the
Plan and any outstanding Options will terminate.
8. NO AUTOMATIC ACCELERATION. Options shall not be accelerated unless and
-------------------------
until the Board determines that there shall be an acceleration of Options in
accordance with Section 4.4 of the Plan.
9. PARTICIPANT NOT A STOCKHOLDER. Neither the Participant nor any other
-----------------------------
person entitled to exercise the Option shall have any of the rights or
privileges of a stockholder of the Corporation as to any shares of Stock not
actually issued and delivered to them. No adjustment will be made for dividends
or other rights for which the record date is prior to the date on which such
stock certificate(s) is issued even if such record date is subsequent to the
date upon which notice of exercise was delivered and the tender of payment was
accepted.
10. APPLICATION OF SECURITIES LAWS.
------------------------------
(a) No shares of Stock may be purchased pursuant to the Option unless and
until any then applicable requirements of the Securities and Exchange Commission
and any other regulatory agency, including any state securities law commissioner
having jurisdiction over the Corporation or such issuance, and any exchange upon
which Stock is listed, shall have been fully satisfied. The Participant
represents, agrees and certifies that if the Participant exercises the Option,
in whole or in part, the Participant will acquire the Stock issuable upon such
exercise for the purpose of investment and not with a view to resale or
distribution and that, as a condition to each such exercise, the Participant
will furnish to the Corporation a written statement to such effect, satisfactory
in form and substance to the Corporation.
(b) The Participant understands that the certificate(s) representing the
Stock acquired pursuant to the Option may bear a legend referring to the fact
that the Stock has not been registered under the Securities Act, and has not
been qualified under any state securities law and is subject to certain
restrictions on transfer and other limitations under the Securities Act and
state securities laws with respect to the transfer of such Stock, and the
Corporation may impose stop transfer instructions to implement such limitations,
if applicable. Any person(s) entitled to exercise the Option under the
provisions of Section 6 above shall be bound by and obligated under the
provisions of this Section 10 to the same extent as is the Participant.
(c) The Committee may impose such conditions on an Option or on its
exercise or acceleration or on the payment of any withholding obligation
(including restricting the time of exercise to specified periods) as may be
required to satisfy applicable regulatory requirements.
11. NOTICES. Any request or notice to be given hereunder shall be deemed
-------
given, and any election or exercise to be made or accomplished shall be deemed
made or accomplished, upon actual delivery thereof to the designated recipient,
or three days after deposit thereof in the United States mail, registered,
return receipt requested and postage prepaid, addressed, if to the Participant,
3
at the address given beneath the Participant's signature set forth below, and if
to the Corporation, at the executive offices of the Corporation.
12. EFFECT OF AWARD AGREEMENT. The Award Agreement shall be assumed by, be
-------------------------
binding upon and inure to the benefit of (i) any successor(s) of the Corporation
to the extent provided in Section 4.2(b) of the Plan, and (ii) any Beneficiary
or Personal Representative of the Participant as provided in Section 4.3 of the
Plan.
13. TAX WITHHOLDING. The provisions of Section 4.6 of the Plan are hereby
---------------
incorporated and shall govern any withholding that the Corporation employing the
Participant is required to make with respect to an exercise of the Option, as
well as the Corporation's right to condition a transfer of Class A Common Stock
or Class B Common Stock upon compliance with the applicable withholding
requirements of federal, state and local authorities.
14. TERMS OF PLAN GOVERN. The Option and this Award Agreement are subject
--------------------
to, and the Corporation and the Participant agree to be bound by, all of the
terms and conditions of the Plan. The Participant acknowledges receipt of a
copy of the Plan, which is made a part hereof by this reference. The rights of
the Participant are subject to limitations, adjustments, modifications,
suspension and termination in certain circumstances and upon the occurrence of
certain conditions as set forth in the Plan.
15. LAWS APPLICABLE TO CONSTRUCTION. The Option has been granted, executed
-------------------------------
and delivered as of the day and year first above written, and the
interpretation, performance and enforcement of the Option and this Award
Agreement shall be governed by the laws of the State of Delaware (excluding its
conflicts of law principles).
16. NOTICE OF DISPOSITION. The Participant agrees to notify the Corporation
---------------------
of any sale or other disposition of any shares of Stock received upon exercise
of the Option if such sale or disposition occurs within two years after the
Award Date or within one year after the date of exercise of the Option.
17. COUNTERPARTS. This Award Agreement may be executed and delivered in one
------------
or more counterparts, each of which shall be considered an original but which,
together, shall constitute one and the same document.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
4
IN WITNESS WHEREOF, the Corporation has caused this Award Agreement to be
executed on its behalf by a duly authorized officer and the Participant has
hereunto set his hand as of the date and year first above written.
IXL ENTERPRISES, INC.
BY: ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, EXECUTIVE VICE PRESIDENT
PARTICIPANT
___________________________________________
[name]
___________________________________________
(Address)
___________________________________________
(City, State, Zip Code)
___________________________________________
(Social Security Number)
5
SCHEDULE I
NUMBER OF SHARES AND EXERCISE PRICE
[__________]
Number of Class B Option Shares Exercise Price Per Share
------------------------------- ------------------------
____ $____
6
SCHEDULE II
VESTING OF OPTION PERIOD
[___________]
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
Award Date to _________ - __%
7