EXHIBIT 10.49
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WARRANT AGREEMENT
among
iXL ENTERPRISES, INC.
and
GENERAL ELECTRIC CAPITAL CORPORATION
Dated as of
November 3, 1998
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WARRANT AGREEMENT
This WARRANT AGREEMENT is dated as of November 3,1998 (the "Agreement")
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and entered into by and among iXL Enterprises, Inc., a Delaware corporation (the
"Company"), and General Electric Capital Corporation ("GECC"), a Delaware
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corporation. Certain capitalized terms used herein are defined in Section 18.
Section 1. Issue of Warrants.
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1.1 Marketing Campaign. Promptly after the date hereof, the Company and
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GECC will discuss a marketing campaign to publicize the services of the Company
and Consumer Financial Network, Inc., a subsidiary of the Company (the
"Marketing Campaign"). If, upon the culmination of such discussions, the
Company, in its sole discretion, approves the Marketing Campaign proposed by
GECC for general use, the Company will issue to GECC warrants (the "Warrants")
to purchase 500,000 shares of the Class A Common Stock of the Company (the
"Common Stock"), par value $.0l per share (the "Warrant Shares").
1.2 Adjustment. The number of Warrant Shares issued pursuant to Section
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1.1 may be subject to adjustment as provided in Section 9 hereof.
Section 2. Warrant Certificates.
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2.1 Delivery of Warrant Certificates. If Warrants are to be issued
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pursuant to Section 1.1, the Company shall issue and deliver to GECC, within ten
Business Days after the determination by the Company that Warrants are to be
issued, a certificate evidencing the Warrants.
2.2 Form of Certificates. The certificate representing the Warrants
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("Warrant Certificate") shall be substantially in the form set forth as Exhibit
A attached hereto. The Warrant Certificate shall be dated the date of issuance
of the Warrants by the Company.
Section 3. Execution of Warrant Certificates. Each Warrant Certificate
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shall be signed on behalf of the Company by its Chairman of the Board or its
Chief Executive Officer, President or any Vice President. Each Warrant
Certificate shall also be signed on behalf of the Company by its Secretary or an
Assistant Secretary.
Section 4. Restrictions on Transfer; Legend. Subject to the conditions to
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and restrictions on transfer contained in the Second Amended and Restated
Stockholders Agreement of the Company, as such agreement may be amended from
time to time (the "Stockholders Agreement") which shall apply to each Holder of
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any Warrants (with respect to such Warrants) or Warrant Shares (with respect to
such Warrant Shares) as if such Holder were a "Chase Investor" thereunder and as
if such Warrants and Warrant Shares were "Stock" thereunder, the Company shall
from time to time register the transfer of any outstanding Warrant Certificate
and any certificate evidencing Warrant Shares in the applicable register to be
maintained by the Company upon surrender thereof accompanied by a written
instrument or instruments of transfer in form reason-ably satisfactory to the
Company, duly executed by the registered Holder or Holders thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney.
Notwithstanding the foregoing, each Holder of Warrants and Warrant Shares agrees
that it will not transfer such securities for 180 days after any public offering
of common stock (or security convertible with common stock) by the Company
unless the managing underwriter for such offering decides such restriction is
unnecessary, and each Holder agrees to execute any agreement or document
reasonably requested by any such underwriter which relates to such restriction.
Upon any such registration of transfer, a new Warrant Certificate or Stock
Certificate, as the case may be, shall be issued to the transferee Holder(s) and
the surrendered Warrant Certificate or certificate evidencing any Warrant
Shares, as the case may be, shall be canceled and disposed of by the Company.
Any attempted transfer in violation of the Stockholders' Agreement and this
Section 4 shall be null and void.
Upon original issuance thereof, and until such time as the same shall have
been registered under the Securities Act or Sold pursuant to Rule 144
promulgated thereunder (or any similar rule or regulation) each Warrant
Certificate shall bear the legend included on the first page of Exhibit A,
unless in such opinion of counsel, such legend is no longer required by the Act.
Section 5. Warrants; Exercise of Warrants. Subject to the terms of this
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Agreement, each Holder shall have the right, which may be exercised at any time
during the period commencing on the date hereof and ending at 5:00 p.m., New
York City time, on the date that is three years from the date hereof (the
"Expiration Date"), to receive from the Company the number of fully paid and
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nonassessable Warrant Shares which the Holder may at the time be entitled to
receive on exercise of such Warrants and payment of the Exercise Price (as
defined below) for such Warrant Shares. Each Warrant not exercised prior to 5:00
p.m., New York City time, on the Expiration Date shall become void and all
rights thereunder and all rights in respect thereof under this Agreement shall
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cease as of such time. No adjustments as to dividends will be made upon exercise
of the Warrants, except as otherwise expressly provided herein.
The price at which each Warrant shall be exercisable (the "Exercise
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Price") shall be equal to $10.00 per share of Common Stock.
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A Warrant may be exercised upon surrender to the Company at its office
designated for such purpose of the Warrant Certificate or Certificates to be
exercised with the form of election to purchase attached thereto duly filled in
and signed, and upon payment to the Company of the applicable Exercise Price for
the number of Warrant Shares in respect of which such Warrants are then
exercised. Payment of the aggregate Exercise Price shall be made, at the
election of the Holder, (i) in cash, by certified or official bank check payable
to the order of the Company, (ii) by delivering for surrender and cancellation
to the Company Warrants with an aggregate Surrender Value, as of the date of
such exercise, equal to the Exercise Price for the Warrants being exercised, or
(iii) any combination thereof. For the purposes of this paragraph, the
"Surrender Value" of any Warrant is equal to the fair market value (as
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determined in good faith by the board of directors of the Company), as of the
date of such surrender, of the Warrant Shares issuable upon the exercise of such
Warrant, minus the Exercise Price of such Warrant.
Subject to the provisions of this Section 5, upon such surrender of
Warrant Certificates and payment of the Exercise Price, the Company shall issue
and cause to be delivered, as promptly as practicable, to the Holder, or, upon
the written order of the Holder, to such other person or persons as such Holder
may designate, a certificate or certificates for the number of full Warrant
Shares issuable upon the exercise of such Warrants (and such other consideration
as may be deliverable upon exercise of such Warrants pursuant to the terms of
this Agreement) together with cash for fractional Warrant Shares as provided in
Section 10. The certificate or certificates for such Warrant Shares shall be
deemed to have been issued and the person so named therein shall be deemed to
have become a holder of record of such Warrant Shares as of the date of the
surrender of such Warrants and payment of the Exercise Price, irrespective of
the date of delivery of such certificate or certificates for Warrant Shares.
Each Warrant shall be exercisable, at the election of the Holder thereof,
either in full or from time to time in part and, in the event that a Warrant
Certificate is exercised in respect of fewer than all of the Warrant Shares
issuable on such exercise at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued and delivered pursuant to the provisions hereof.
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All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled and disposed of by the Company. The Company shall keep copies of this
Agreement and any notices given or received hereunder available for inspection
by the Holders during normal business hours at its office.
Section 6. Payment of Taxes. The Company will pay all documentary stamp
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taxes and other governmental charges (excluding all foreign, federal or state
income, franchise, property, estate, inheritance, gift or similar taxes) in
connection with the issuance or delivery of the Warrants hereunder, as well as
all such taxes attributable to the initial issuance or delivery of Warrant
Shares upon the exercise of Warrants and payment of the Exercise Price. The
Company shall not, however, be required to pay any tax that may be payable in
respect of any subsequent transfer of the Warrants or any transfer involved in
the issuance and delivery of Warrant Shares in a name other than that in which
the Warrants to which such issuance relates were registered, and, if any such
tax would otherwise be payable by the Company, no such issuance or delivery
shall be made unless and until the person requesting such issuance has paid to
the Company the amount of any such tax, or it is established to the reasonable
satisfaction of the Company that any such tax has been paid.
Section 7. Mutilated or Missing Warrant Certificates. If a mutilated
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Warrant Certificate is surrendered to the Company, or if the Holder of a Warrant
Certificate claims and submits an affidavit or other evidence satisfactory to
the Company to the effect that the Warrant Certificate has been lost, destroyed
or wrongfully taken, the Company shall issue a replacement Warrant Certificate.
If reasonably required by the Company, such Holder must provide an indemnity
bond, or other form of indemnity, sufficient in the reasonable judgment of the
Company to protect the Company from any loss which it may suffer if a Warrant
Certificate is replaced. If any Investor or any other Holder is the owner of any
such lost, stolen or destroyed Warrant Certificate, then the affidavit of an
authorized officer of such owner, setting forth the fact of loss, theft or
destruction and of its ownership of the Warrant Certificate at the time of such
loss, theft or destruction shall be accepted as satisfactory evidence thereof
and no further indemnity shall be required as a condition to the execution and
delivery of a new Warrant Certificate other than the unsecured written agreement
of such owner to indemnify the Company.
Section 8. Reservation of Warrant Shares. The Company shall at all times
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reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant
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Shares upon exercise of Warrants, the maximum number of shares of Common Stock
which may then be deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed, any transfer agent for any shares of the
Common Stock (the "Transfer Agent") will be irrevocably authorized and directed
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at all times to reserve such number of authorized shares as shall be required
for such purpose. The Company shall keep a copy of this Agreement on file with
any such Transfer Agent. The Company will supply any such Transfer Agent with
duly executed certificates for such purposes and will provide or otherwise make
available all other consideration that may be deliverable upon exercise of the
Warrants. The Company will furnish any such Transfer Agent a copy of all notices
of adjustments and certificates related thereto, transmitted to each Holder
pursuant to Section 11 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 9 hereof to reduce the Exercise Price below the then par value of the
Warrant Shares, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise Price
as so adjusted.
The Company covenants that all Warrant Shares and other capital stock
issued upon exercise of Warrants will, upon payment of the Exercise Price
therefor and issue thereof, be validly authorized and issued, fully paid,
nonassessable, free of preemptive rights and free, subject to Section 6 hereof,
from all taxes, liens, charges and security interests with respect to the issue
thereof, provided, that such Warrant Shares or other capital stock shall be
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treated as "Stock", and the Holders of Warrant Shares shall be subject to all
restrictions applicable to "Outside" Investors" pursuant to the Stockholders'
Agreement.
Section 9. Adjustment of Exercise Price and Warrant Number. The number of
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shares of Common Stock issuable upon the exercise of each Warrant (the "Warrant
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Number") is initially one. The Warrant Number is subject to adjustment from time
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to time upon the occurrence of the events enumerated in, or as otherwise
provided in, this Section 9.
(a) Adjustment for Change in Common Stock
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If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
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(2) subdivides or reclassifies its outstanding shares of Common
Stock into a greater number of shares;
(3) combines or reclassifies its outstanding shares of Common Stock
into a smaller number of shares; or
(4) issues by reclassification of its Common Stock any shares of its
capital stock (other than reclassification arising solely as a result
of a change in the par value or no par value of the Common Stock);
then the Warrant Number and the Exercise Price in effect immediately prior to
such action shall be proportionately adjusted so that the holder of any
Warrant thereafter exercised shall receive the aggregate number and kind of
shares of capital stock of the Company which it would have received
immediately following such action if such Warrant had been exercised
immediately prior to such action for the same aggregate consideration that
such holder would have paid if such Warrant had been exercised immediately
prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed
above shall occur.
The Company shall not issue shares of Common Stock as a dividend or
distribution on any class of capital stock, other than the Common Stock,
unless the Warrant Holders also receive such dividend or distribution on a
ratable basis or an appropriate adjustment to the Warrant Number and Exercise
Price is made under this Section 9.
(b) Notice of Adjustment
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Whenever the Warrant Number is adjusted, the Company shall provide the
notices required by Section 11 hereof.
(c) Voluntary Increase
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The Company from time to time may increase the Warrant Number by any
amount for any period of time (including, without limitation, permanently) if
the period is at least 20 business days and if the increase is irrevocable
during the period. Whenever
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the Warrant Number is increased, the Company shall mail to the Holders a notice
of the increase. The Company shall mail the notice at least 15 days before the
date the increased Warrant Number takes effect The notice shall state the
increased Warrant Number and the period it will be in effect.
An increase of the Warrant Number under this Subsection (c) (other than a
permanent increase) does not change or adjust the Warrant Number otherwise in
effect for purposes of subsection (a) of this Section 9.
(d) Reorganizations
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In case of any capital reorganization, other than in the cases referred to
in Section 9(a) hereof, or the consolidation or merger of the Company with or
into another corporation (other than a merger or consolidation in which the
Company is the continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock into shares of other
stock or other securities or property), or the sale of the property of the
Company as an entirety or substantially as an entirety (collectively, such
actions being hereinafter referred to as "Reorganizations"), there shall
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thereafter be deliverable upon exercise of any Warrant (in lieu of the number of
shares of Common Stock theretofore deliverable) the number of shares of stock or
other securities or property to which a holder of the number of shares of Common
Stock that would otherwise have been deliverable upon the exercise of such
Warrant would have been entitled upon such Reorganization if such Warrant had
been exercised in full immediately prior to such Reorganization. In the event
that the Warrants are not exercised in connection with such Reorganization,
appropriate adjustment, as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a duly adopted resolution
certified by the Company's Secretary or Assistant Secretary, shall be made in
the application of the provisions herein set forth with respect to the rights
and interests of Holders so that the anti-dilution provisions set forth in this
Section 9 shall thereafter be applicable, as nearly as possible, in relation to
any shares or other property thereafter deliverable upon exercise of Warrants.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof, (i) notice of such Reorganization
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shall be given to each of the Holders of the Warrants, and (ii) the successor
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corporation (if other than the Company) resulting from such Reorganization or
the corporation purchasing or leasing such assets or other appropriate
corporation or entity shall expressly assume, by a supplemental Warrant
Agreement or other acknowledgment executed and delivered to the Holder(s), the
obligation to deliver to each such Holder such shares of stock,
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securities or assets as, in accordance with the foregoing provisions, such
Holder may be entitled to purchase, and all other obligations and liabilities
under this Agreement
(e) Form of Warrants
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Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement but shall nevertheless be exercisable for the
adjusted number of Warrant Shares at the adjusted Exercise Price.
Section 10. Fractional Interests. The Company shall not be required to
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issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 10,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the fair market value (as
determined in good faith by the Board of Directors) of the Warrant Share so
issuable, multiplied by such fraction.
Section 11. Notices to Warrant Holders. Upon any adjustment pursuant to
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Section 9 hereof, the Company shall promptly thereafter (i) cause to be filed
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with the Company a certificate of an officer of the Company setting forth the
Warrant Number and Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based, and (ii) cause to be given to each of the Holders at its
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address appearing on the Warrant Register written notice of such adjustments.
Where appropriate, such notice may be given in advance and included as a part of
the notice required to be mailed under the other provisions of this Section 11.
In case:
(a) the Company shall authorize the issuance to all holders of shares of
Common Stock of rights, options or warrants to subscribe for or purchase shares
of Common Stock or of any other subscription rights or warrants;
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(b) the Company shall authorize the distribution to all holders of shares
of Common Stock of assets, including cash, evidences of its indebtedness, or
other securities;
(c) of any consolidation or merger to which the Company is a party and for
which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination),. or a tender offer or exchange offer for shares of
Common Stock;
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
(e) the Company proposes to take any action that would require an
adjustment to the Warrant Number pursuant to Section 9 hereof;
then the Company shall cause to be given to each of the Holders at its address
appearing on the Warrant Register, at least 20 days prior to the applicable
record date hereinafter specified, or the date of the event in the case of
events for which there is no record date, in accordance with the provisions of
Section 12 hereof, a written notice stating (i) the date as of which the holders
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of record of shares of Common Stock or the preferred stock of the Company to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, or (ii) the initial expiration date set forth in any tender offer or
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exchange offer for shares of Preferred Stock or Common Stock, or (iii) the date
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on which any such consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of shares of
Preferred Stock or Common Stock shall be entitled to exchange such shares for
securities or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up. The failure to give the notice required by this Section 11 or any defect
therein shall not affect the legality or validity of any distribution, right,
option, warrant, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up, or the vote upon any action.
Nothing contained in this Agreement or in any Warrant Certificate shall be
construed as conferring upon the Holders (prior to the exercise of such
Warrants) the right to vote or to consent or to receive notice as shareholder in
respect of the meetings of shareholders or the election of Directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company; provided, however, that nothing in the
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foregoing provision is intended to detract from any rights explicitly granted to
any Holder hereunder.
Section 12. Notices to the Company and Warrant Holders. All notices and
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other communications provided for or permitted hereunder shall be made by hand-
delivery, first-class mail, telex, telecopier, or overnight air courier
guaranteeing next day delivery:
(a) if to the GECC, to General Electric Capital Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax no: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.;
(b) if to the Company, to iXL Enterprises, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Fax no.(▇▇▇)▇▇▇-▇▇▇▇, Attention: M. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, One Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax no.(▇▇▇)▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. and Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax no.(▇▇▇)▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Esq., and with an additional copy to ▇▇▇▇▇ & Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax no: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed (so long as a
fax copy is sent and receipt acknowledged within two business days after
mailing); when answered back if telexed; when receipt acknowledged, if
telecopied; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery. The patties may
change the addresses to which notices are to be given by giving five days' prior
written notice of such change in accordance herewith.
Section 13. Representations and Warranties of the Company. The Company
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represents and warrants to GECC on the date hereof as follows:
(a) Due Incorporation and Good Standing. The Company has been duly
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incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to enter into
and perform its obligations under this Agreement.
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(b) Authority. The Company has all necessary corporate power and
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authority to execute and deliver this Agreement, and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement has been authorized by all necessary corporate
action on the part of the Company and no other corporate proceedings or
approvals are required on the part of the Company to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
authorized and validly executed and delivered by the Company and, assuming the
due authorization, execution and delivery thereof by GECC, will constitute a
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Company has duly authorized
and reserved a sufficient number of shares of Common Stock for issuance upon
exercise of the Warrants, and the Warrant Shares, when issued upon exercise of
the Warrants in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable, with no personal liability attached to the
ownership thereof.
(c) No Violation or Conflict: No Default.
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(i) The execution, delivery or performance of this Agreement by the
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Company and the consummation of the transactions contemplated hereby will not:
(A) violate or conflict with any provision of the certificate of
-
incorporation or by-laws of the Company or any of its subsidiaries;
(B) violate or conflict with any statute, law, rule or regulation
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or any judgment, decree, order, regulation or rule of any court or governmental
authority or body (collectively, "Laws") applicable to the Company or any of its
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subsidiaries or by which any of their respective properties or assets may be
subject, except where such violation would not reasonably be expected to have,
singly or in the aggregate, a material adverse effect on the Company; or
(C) violate, be in contact with, or constitute a breach or default
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(or any event which, with the passage of time or notice or both, would become a
default) under, or permit the termination of, or require the consent of any
person or entity under, result in the creation or imposition of any lien or
encumbrance upon any property of the Company or any of its subsidiaries under,
result in the loss (by the Company or any subsidiary) or modification in any
manner adverse to the Company and its subsidiaries of
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any right or benefit under, or give to any other person or entity any right of
termination, amendment, acceleration, repurchase or repayment, increased
payments or cancellation under, any mortgage, indenture, note, debenture,
agreement, lease, license, permit, franchise or other instrument or obligation,
whether written or oral, to which the Company or any of its subsidiaries is a
party or by which their properties may be bound or affected except as would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the Company.
(ii) The execution and delivery of this Agreement does not, and the
--
issuance of the Warrants and the performance of its obligations under this
Agreement will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental authority under any laws or
regulations, except for (i) required filings under the Securities Act or state
-
"blue sky" laws as a result of the exercise of rights under the Registration
Rights Agreement, or (ii) where the failure to obtain such consents, approvals,
--
authorizations or permits or to make such filings or notifications, would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the Company.
(d) Private Offering. Assuming the correctness of the representations
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and warranties set forth in Sections 14 hereof, the issuance of the Warrants to
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GECC hereunder will be exempt from the registration and prospectus delivery
requirements of the Securities Act.
(e) No Brokers. The Company has not engaged any broker, finder,
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commission agent or other such intermediary in connection with the issuance of
the Warrants and the transactions contemplated by this Agreement, and the
Company is under no obligation to pay any broker's or finder's fee or commission
or similar payment in connection with such transactions.
Section 14. Representations and Warranties of GECC. GECC represents and
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warrants to the Company that:
(a) Purchase for Own Account. GECC will purchase the Warrants solely
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for its own account and not as nominee or agent for any other person and not
with a view to, or for offer or sale in connection with, any current
distribution thereof (within the meaning of the Securities Act) that would cause
the original purchase of the Warrants and Warrant Shares to be in violation of
the securities laws of the United States of America or any state thereof,
without prejudice, however, to its right at all times to sell or otherwise
dispose of all or any part of such Warrants or the Warrant Shares pursuant to a
registration statement under the Securities Act or pursuant to an exemption from
the
12
registration requirements of the Securities Act, and subject, nevertheless, to
the disposition of its property being at all times within its control.
(b) Accredited Investor. GECC is knowledgeable, sophisticated and
-------------------
experienced in business and financial matters and in investing in privately held
business enterprises; it has previously invested in securities similar to the
Warrants and the Warrant Shares and it acknowledges that the Warrants and the
Warrant Shares, when issued, will not have been registered under the Securities
Act and understands that the Securities must be held indefinitely unless they
are subsequently registered under the Securities Act or such sale is permitted
pursuant to an available exemption from such registration requirement; it is
able to bear the economic risk of its investment in the Warrants and the Warrant
Shares and is presently able to afford the complete loss of such investment; and
it is an "accredited investor" as defined in Regulation D promulgated under the
Securities Act.
(c) Authorization. GECC has taken all actions necessary to authorize it
-------------
(j) to execute, deliver and perform all of its obligations under this Agreement
and (ii) to consummate the transactions contemplated hereby. This Agreement is a
legally valid and binding obligation of GECC enforceable against it in
accordance with its terms, except for (a) the effect thereon of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally and (b) limitations imposed by
federal or state law or equitable principles upon the specific enforceability of
any of the remedies, covenants or other provisions thereof and upon the
availability of injunctive relief or other equitable remedies.
Section 15. Certain Supplements and Amendments. The Company may from time
----------------------------------
to time supplement or amend this Agreement without the approval of any Holders
in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other provision
herein; provided that any such supplement or amendment shall not in any way
adversely affect the interests of the Holders.
Section 16. Information to Prospective Investors. Provided that a sale of
------------------------------------
the Warrants or the Warrant Shares pursuant to Rule 144A is available to the
Holders, until the closing of a Qualified Public Offering (as such term is
defined in the Stockholders' Agreement), the Company shall, upon the request of
any Holder, deliver to such Holder and any prospective purchaser designated by
such Holder promptly following the request of such Holder or such prospective
purchaser the information which such Holder or prospective purchaser may
reasonably request in order to comply with the information requirements of Rule
144A.
13
Each Holder is hereby authorized to deliver a copy of any financial
statement or any other information relating to the business, operations or
financial condition of the Company or each of its Subsidiaries which may be
furnished to it hereunder or otherwise, to any other Holder, any court,
Governmental Body claiming to have jurisdiction over such Holder, to the
National Association of Insurance Commissioners or similar organizations, as may
be required or appropriate in response to any summons or subpoena in connection
with any litigation, to the extent necessary to comply with any law, order,
regulation or ruling applicable to such Holder, or to any rating agency, order
to protect its investment hereunder; provided, however; that prior to disclosing
any such information, such Holder shall provide the Company with prompt written
notice so that the Company may seek a protective order or other appropriate
remedy if the Company reasonably determines that such information must be kept
confidential.
Each Holder is hereby authorized to deliver a copy of any financial
statement or any other information relating to the business, operations or
financial condition of the Company or each of its Subsidiaries which may be
furnished to it hereunder or otherwise, to any Person which shall, or shall have
any right or obligation to, succeed to all or any part of such Holder's interest
in the Warrants, the Warrant Shares and this Agreement or to any actual
purchaser or assignee thereof; provided, however, that no disclosure may be made
unless such other Person first executes a confidentiality agreement acceptable
to the Company with respect to any such information disclosed.
Section 17. Successors. All the covenants and provisions of this Agreement
----------
by or for the benefit of the Company and GECC shall bind and inure to the
benefit of their respective successors and assigns hereunder, provided, however,
that this Agreement shall not be assignable by any Holder if such Holder has not
complied with the transfer restrictions of Section 4 hereof. Any such assignment
in violation of Section 4 shall be null and void.
Section 18. Defined Terms. As used in this Agreement, the following terms
-------------
shall have the meanings ascribed to them below:
"Holder" or "Holders" means GECC and any transferee of GECC or a sub-
------ -------
sequent Holder that is or becomes, in accordance with Section 4 thereof, a
holder of any of the Warrants or Warrant Shares, in each case, so long as such
Person holds any Warrants or Warrant Shares.
"Registration Rights Agreement" shall mean the Registration Rights
-----------------------------
Agreement dated as of April 30, 1996, as amended, by and among the Company and
each of the other Persons listed on the signature pages thereto.
14
"Stockholders' Agreement" shall mean the Second Amended and Restated
-----------------------
Stockholders Agreement, dated as of December 17, 1997, among iXL and the
stockholders listed therein, as amended, modified or restated, from time to
time.
Section 19. Termination. This Agreement shall terminate if all Warrants
-----------
have been exercised or shall have expired or been canceled pursuant to this
Agreement.
SECTION 20. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK (PROVIDED THAT DETERMINATIONS RELATING TO
CORPORATE LAW SHALL BE CONSTRUED IN ACCORDANCE WITH THE DELAWARE GENERAL
CORPORATION LAW). THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND THE WARRANTS, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AGREES THAT IT WILL NOT
COMMENCE ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OTHER JURISDICTION. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY HOLDER OF A WARRANT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
EACH OF THE PARTIES HERETO HEREBY WAIVES THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING
TO THE SUBJECT MATTER OF THE HOLDER'S INVESTMENT IN THE COMPANY CONTEMPLATED
HEREBY. THE SCOPE OF THIS JURY TRIAL WAIVER
15
SHALL BE LIMITED TO DISPUTES BETWEEN THE COMPANY AND THE HOLDERS AND SHALL NOT
EXTEND TO DISPUTES BETWEEN THE COMPANY AND ANY OTHER PERSON.
Section 21. Benefits of This Agreement. Nothing in this Agreement shall be
--------------------------
construed to give to any person or corporation other than the Company and the
Holders any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders.
Section 22. Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 23. Amendments and Waivers. Subject to Section 15, the Company
----------------------
agrees it will not solicit, request or negotiate for or with respect to any
proposed waiver or amendment of any of the provisions of this Agreement or any
Warrant unless each Holder (irrespective of the amount of Warrants then owned by
it) shall substantially concurrently be informed thereof by the Company and
shall be afforded the opportunity of considering the same and shall be supplied
by the Company with sufficient in-formation (including any offer of
remuneration) to enable it to make an informed decision with respect thereto
which information shall be tile same as that supplied to the other Holders. The
Company will not, directly or indirectly, pay or cause to be paid any
remuneration whether by way of supplement or additional interest fee or
otherwise, to any Holder as consideration for or as an inducement to the
entering into by such Holder of any waiver or amendment of any of the terms and
provisions of this Agreement or any Warrant unless such remunerations is
concurrently paid on the same terms, ratably to each Holder whether or not such
Holder signs such waiver or consent, provided that the foregoing is not intended
to preclude the adoption of any amendment or the giving of any waiver by the
Holders of a majority of the Warrants to the extent permitted by the other
provisions of this Section 23.
16
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to
be duly executed as of the day and year first above written.
iXL ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Dept Ops Manager
EXHIBIT A
[Form of Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [ ],
1998, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED
EXCEPT IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE ACT, OR IN COMPLIANCE WITH RULE 144 OR PURSUANT TO ANOTHER
EXEMPTION THEREFROM. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A WARRANT AGREEMENT, DATED AS OF [ ], 1998, BETWEEN IXL ENTERPRISES, INC.
(THE "COMPANY")AND GENERAL ELECTRIC CAPITAL CORPORATION. THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN SUCH AGREEMENT AND THE
COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF THIS CERTIFICATE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST.
No. _____ _______ Warrants
Warrant Certificate
IXL ENTERPRISES, INC.
This Warrant Certificate certifies that General Electric Capital
Corporation, a Delaware corporation, or registered assigns, is the registered
holder of the number of Warrants (the "Warrants") set forth above to purchase
--------
Class A Common Stock, par value $.0l per share (the "Common Stock"), of win
------------
Enterprises, Inc., a Delaware corporation (the "Company"). Each Warrant entitles
-------
the Holder upon exercise to receive from the Company one fully paid and
nonassessable share of Common Stock (a "Warrant Share"), at an exercise price
-------------
(the "Exercise Price") of $____ payable in lawful money of the United States of
--------------
America, upon surrender of this Warrant Certificate and payment of the Exercise
Price at the office of the Company designated for such purpose, but only subject
to the conditions set forth herein and in the Warrant Agreement referred to
hereinafter. The number of Warrant Shares issuable upon exercise of the Warrants
is subject to adjustment upon the occurrence of certain events, as set forth in
the Warrant Agreement.
18
Each Warrant is exercisable at any time during the period commencing on the date
hereof and ending at 5:00 p.m., New York City time, on ______-, _____ [i.e. 36
months after the date of the Warrant Agreement].
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants, and are issued or to be issued pursuant to a
Warrant Agreement dated as of November __ 1998 (the "Warrant Agreement"), duly
------- -----------
executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company. Capitalized terms used and not
defined herein shall have the meaning ascribed thereto in the Warrant Agreement.
The holder of Warrants evidenced by this Warrant Certificate may exercise
such Warrants under and pursuant to the terms and conditions of the Warrant
Agreement by surrendering this Warrant Certificate, with the form of election to
purchase set forth hereon (and by this reference made a part hereof) properly
completed and executed, together with payment of the Exercise Price made, at the
election of the Holder, (j) in cash, by certified or official bank check payable
to the order of the Company, (ii) by delivering for surrender and cancellation
to the Company Warrants with an aggregate Surrender Value (as defined in Section
5 of the Warrant Agreement), as of the date of such exercise, equal to the
Exercise Price for the Warrants being exercised or (iii) any combination
thereof. In the event that upon any exercise of Warrants evidenced hereby the
number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued by the Company to the holder hereof or
its registered assignee a new Warrant Certificate evidencing the number of
Warrants not exercised.
Warrant Certificates, when surrendered at the office of the Company by the
registered holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Subject to the terms and conditions of the Warrant Agreement, upon due
presentation for registration of transfer of this Warrant Certificate at the
office of the Company a new Warrant Certificate or Warrant Certificates of like
tenor and evidencing
19
in the aggregate a like number of Warrants shall be issued to the transferee(s)
in exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other governmental
charge imposed in connection therewith.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for tile purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
IN WITNESS WHEREOF, iXl Enterprises, Inc. has caused this Warrant
Certificate to be signed by its [ ].
Dated: [ ], 1998
iXL ENTERPRISES, INC.
By ___________________________
Name:
Title:
By ___________________________
Name:
Title:
20
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _______shares of Common
Stock and herewith tenders payment for such shares to the Company in the form of
a certified or official bank check payable to the order of the Company in the
amount of $ ____, and Warrants to purchase Warrant Shares with an aggregate
Surrender Value (as defined in Section 5 of the Warrant Agreement) of $_______.
The undersigned requests that a certificate for such shares be registered
in the name of______________ whose address is ____________________________ and
that such shares be delivered to _________________, whose address is
If said number of shares is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
________________________, whose address is _______________________________, and
that such Warrant Certificate be delivered to _______________, whose address is
____________________________.
[HOLDER]
___________________________
By:
Title:
Date: _________________
21
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant Certificate)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto
_______________________ whose address is _______________________ and whose
social security number or other identifying number is ___________________, the
within Warrant Certificate, together with all right, title and interest therein
and to the Warrants represented thereby, and does hereby irrevocably constitute
and appoint ___________________, attorney, to transfer said Warrant Certificate
on the books of the within-named Company, with full power of substitution in the
premises.
[HOLDER]
___________________________
By:
Title:
Date: _______________
22