EXHIBIT 10.44
WARRANT AWARD AGREEMENT
This Warrant Award Agreement dated as of March 12, 1998 by and between IXL
Holdings, Inc. (the "Company") and Chase Venture Capital Associates, L.P.
("Chase").
WHEREAS, pursuant to that certain Securities Purchase Agreement dated as of
December 17, 1997 between the Company and Chase Venture Capital Associates,
L.P., Flatiron Partners, LLC, and Greylock IX Limited Partnership (the
"Securities Purchase Agreement"), the Company has issued and sold to such
investors the Securities described therein;
WHEREAS, in connection with the Securities Purchase Agreement, the Company
and Chase Venture Capital Associates, L.P., Flatiron Partners, LLC, and Greylock
IX Limited Partnership have entered into that certain Warrant Agreement dated as
of December 17, 1997 (the "Primary Warrant Agreement"), pursuant to which the
Company issued and sold to such investors warrants (the "Primary Warrants") to
purchase 8,875 shares of the Class B Convertible Preferred Stock, par value
$.01, of the Company (the "Class B Preferred Stock");
WHEREAS, the Company wishes to award Chase additional warrants to purchase
3,500 shares of Class B Preferred Stock at an exercise price of $500 per share
in the event certain conditions precedent are satisfied;
In consideration of the parties entering into the Securities Purchase
Agreement and the Warrant Agreement, and for other good and valuable
consideration, the parties agree as follows:
1. In the event that:
(a) Chase Manhattan Bank ("Chase Bank") or any of its
subsidiaries or affiliates or any of Chase Bank's portfolio companies
delivers to the Company or its subsidiaries, upon terms and conditions
acceptable to the Company, business which generates $10,000,000
recognizable in accordance with generally accepted accounting
principles as revenue by the Company in calendar year 1998,
AND
(b) (i) Chase Bank makes Consumer Financial Network, Inc.'s
("CFN") services available to the lesser of 50% or 100,000 of Chase
Bank's domestic United States employees by September 30, 1998, and
(ii) Chase Bank actively communicates to such employees, using
traditional methods of communication utilized by Chase Bank to
communicate with its employees at all levels of operational management
that CFN's services are available to such employees,
the Company shall execute a Warrant Agreement substantially in the form of
Exhibit A hereto (the "Secondary Warrant Agreement") pursuant to which, subject
to the terms and conditions thereof, the Company will issue to Chase warrants to
purchase 3,500 shares of Class B Preferred Stock at an exercise price of $500
per share.
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2. GOVERNING LAW; SUBMISSION TO JURISDICTION. 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.
3. 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.
4. AMENDMENTS. This Agreement shall not be amended without the prior
written consent of all parties hereto.
[Signatures on Following Page]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
set forth below as of the date first written above.
IXL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President & CFO
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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A Partner
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EXHIBIT A
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WARRANT AGREEMENT
among
IXL HOLDINGS, INC.
and the other
PARTIES NAMED HEREIN
Dated as of
__________, _____
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WARRANT AGREEMENT
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This WARRANT AGREEMENT is dated as of __________, _____ (the "Agreement") and
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entered into by and among IXL Holdings, Inc., a Delaware corporation (the
"Company"), and the purchasers party hereto (each, an "Investor" and
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collectively, the "Investors"). All capitalized terms used but not defined
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herein shall have the meanings ascribed to them in the Purchase Agreement (as
hereinafter defined).
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of December 17,
1997 (the "Purchase Agreement") by and among the Company and the Investors, the
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Company is issuing to the Investors certain Warrants, as hereinafter described
(the "Warrants"), to purchase an aggregate of 3,500 shares (subject to
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adjustment as provided herein) of Class B Convertible Preferred Stock, par value
$.01 per share (the "Class B Preferred Stock"), of the Company (the shares of
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Class B Preferred Stock issuable upon exercise of the Warrants being referred to
herein as the "Warrant Shares");
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NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
SECTION 1. Warrant Certificates. The Company will issue and deliver a
certificate or certificates evidencing the Warrants (the "Warrant Certificates")
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pursuant to the terms of the Purchase Agreement. Such certificate or
certificates shall be substantially in the form set forth as Exhibit A attached
hereto. Warrant Certificates shall be dated the date of issuance by the
Company.
SECTION 2. Execution of Warrant Certificates. Warrant Certificates 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 3. Restrictions on Transfer; Registration of Transfers and Exchanges.
Prior to any proposed transfer of the Warrants or the Warrant Shares, unless
such transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), the transferring
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Holder will deliver to the Company an opinion of counsel, reasonably
satisfactory in form and substance to the Company, to the effect that the
Warrants or Warrant Shares, as applicable, may be sold or otherwise transferred
without registration under the Securities Act; provided, however, that, with
respect to transfers by the Investors or their Affiliates and Related Persons,
no such opinion shall be required in connection with any transfer to the Company
or to a Permitted Transferee. 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.
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Subject to the conditions to 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 the
Holders of the Warrants as if such Holders were "Chase Investors," as defined in
the Stockholders Agreement, the Company shall from time to time register the
transfer of any outstanding Warrant Certificates in the Warrant Register to be
maintained by the Company upon surrender thereof accompanied by a written
instrument or instruments of transfer in form reasonably 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.
Upon any such registration of transfer, a new Warrant Certificate shall be
issued to the transferee Holder(s) and the surrendered Warrant Certificate shall
be canceled and disposed of by the Company. Any attempted transfer in violation
of the Stockholders Agreement shall be null and void.
SECTION 4. Warrants; Exercise of Warrants. Subject to the terms of this
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 December 17, 2007 (the "Expiration Date"), to receive from
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the Company the number of fully paid and nonassessable Warrant Shares (and such
other consideration) which the Holder may at the time be entitled to receive on
exercise of such Warrants and payment of the Exercise Price for such Warrant
Shares. Each Warrant not exercised prior to 5:00 p.m., New York time, on the
Expiration Date shall become void and all rights thereunder and all rights in
respect thereof under this Agreement shall 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 Price")
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shall be equal to $500.00 per share of Class B Preferred Stock.
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 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 defined in the
Stockholders' Agreement), 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 Section 5 hereof, 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 or upon the written order
of the Holder and in such name or names 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) together with cash for fractional
Warrant Shares as provided in
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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 of this Section and of Section 2
hereof.
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 5. Payment of Taxes. The Company will pay all documentary stamp
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 6. Dividends. At any time and from time to time that the Fair Market
Value (as defined in the Stockholders' Agreement) of a Warrant Share exceeds the
Exercise Price per share, the Company shall not make any distributions on the
Common Stock or the Preferred Stock (as such terms are defined in the
Stockholders' Agreement) unless there is contemporaneously declared and paid a
dividend on each Warrant equal to the distribution paid per share of Class B
Preferred Stock.
SECTION 7. Mutilated or Missing Warrant Certificates. If a mutilated 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 institutional Holder (or
nominee thereof) is the owner of any such lost, stolen or destroyed Warrant
Certificate, then the affidavit of an authorized officer
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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
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Class B Preferred Stock or its authorized and issued
Class B Preferred Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Class B Preferred Stock which may then be
deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed, any transfer agent for the Preferred Stock and
each transfer agent for any shares of the Company's capital stock issuable upon
the exercise of any of the Warrants (collectively, the "Transfer Agent") will be
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irrevocably authorized and directed 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 5 hereof, from all taxes,
liens, charges and security interests with respect to the issue thereof, but
such Warrant Shares shall be subject to the applicable terms and conditions of
the Stockholders Agreement.
SECTION 9. Adjustment of Exercise Price and Warrant Number. The number of
shares of Class B Preferred Stock issuable upon the exercise of each Warrant
(the "Warrant Number") is initially one. The Warrant Number is subject to
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adjustment from time to time upon the occurrence of the events enumerated in, or
as otherwise provided in, this Section 9.
(a) Adjustment for Change in Capital Stock
If the Company:
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(1) pays a dividend or makes a distribution on its Class B
Preferred Stock in shares of its Class B Preferred Stock;
(2) subdivides or reclassifies its outstanding shares of Class B
Preferred Stock into a greater number of shares;
(3) combines or reclassifies its outstanding shares of Class B
Preferred Stock into a smaller number of shares; or
(4) issues by reclassification of its Class B Preferred 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
Class B Preferred 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 Class B Preferred Stock as
a dividend or distribution on any class of capital stock other than Class B
Preferred Stock unless the Warrant Holders also receive such dividend or
distribution on a ratable basis or the 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 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.
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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 Preferred Stock or 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"),
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there shall thereafter be deliverable upon exercise of any Warrant (in lieu of
the number of shares of Class B Preferred Stock theretofore deliverable) the
number of shares of stock or other securities or property to which a holder of
the number of shares of Class B Preferred 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 case of any 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 provisions set forth herein 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 shall be given to each of the Holders of the Warrants, and (ii)
the successor 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 acknowledgement executed and delivered to the
Holder(s), the obligation to deliver to each such Holder such shares of stock,
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.
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SECTION 10. Fractional Interests. The Company shall not be required to
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
Section 9 hereof, the Company shall promptly thereafter (i) cause to be filed
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
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 Class B Preferred Stock of rights, options or warrants to subscribe for or
purchase shares of Class B Preferred Stock or of any other subscription rights
or warrants;
(b) The Company shall authorize the distribution to all holders of
shares of Class B Preferred 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 Class B Preferred 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 Class B Preferred 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
of
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record of shares of Preferred Stock or Common Stock 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 exchange offer for
shares of Preferred Stock or Common Stock, or (iii) the date 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 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
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 Investors, to the address specified on the signature page
executed by each such Investor, with a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.; and
(b) if to the Company, IXL Holdings, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, One Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., and with an additional copy to ▇▇▇▇▇ &
Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 parties 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. 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
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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 14. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company shall bind and inure to the benefit of its
respective successors and assigns hereunder.
SECTION 15. Termination. This Agreement shall terminate if all Warrants
have been exercised or shall have expired or been canceled pursuant to this
Agreement.
SECTION 16. GOVERNING LAW; SUBMISSION TO JURISDICTION. 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.
SECTION 17. 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 18. 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.
-9-
SECTION 19. Amendments and Waivers. Subject to Section 13, 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 information (including any offer of remuneration)
to enable it to make an informed decision with respect thereto which information
shall be the same as that supplied to each other Holder. 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 any 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 19.
[Signature pages follow]
-10-
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 HOLDINGS, INC.
By: ______________________________
Title: ______________________________
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
its General Partner
By: ___________________________
A Partner
-11-
EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
__________, _____, 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 __________, AMONG THE
ISSUER OF SUCH SECURITIES (THE "COMPANY"), THE INVESTORS REFERRED TO THEREIN AND
THE OTHER PARTIES THERETO. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SPECIFIED IN SUCH AGREEMENTS 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 AGREEMENTS WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
THE SHARES ISSUABLE UPON EXERCISE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE PREFERENCES, POWERS, QUALIFICATIONS AND RIGHTS OF
EACH CLASS AND SERIES AS SET FORTH IN THE COMPANY'S CERTIFICATE OF
INCORPORATION. THE COMPANY WILL FURNISH A COPY OF THE CERTIFICATE OF
INCORPORATION TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST.
No._____ _____ Warrants
Warrant Certificate
IXL HOLDINGS, INC.
This Warrant Certificate certifies that ___________________, or registered
assigns, is the registered holder of the number of Warrants (the "Warrants") set
---------
forth above to purchase Class B Preferred Stock, par value $.01 per share (the
"Class B Preferred Stock"), of IXL Holdings, 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 Class B Preferred Stock (a
"Warrant Share"), at an exercise price (the "Exercise Price") of $500.00 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. Each
Warrant is exercisable at any time
-12-
during the period commencing and ending at 5:00 p.m., New York City time, on
December 17, 2007.
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 __________, _____ (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, (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 defined in Section
4 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 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 the 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.
-13-
IN WITNESS WHEREOF, IXL Holdings, Inc. has caused this Warrant Certificate
to be signed by its Chairman of the Board, President or Vice President and by
its Secretary or Assistant Secretary.
Dated: [ ], _____
IXL HOLDINGS, INC.
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
-14-
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 Class B
Preferred 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 4 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 Class B
Preferred 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 ________________________________.
Signature(s):________________________________
NOTE: The above signature(s) must
correspond with the name written upon the
face of this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatever. If this
Warrant is held of record by two or more
joint owners, all such owners must sign.
Date: _____________
-15-
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.
Signature(s): ___________________________________________
NOTE: The above signature(s) must correspond
with the name written upon the face of this
Warrant Certificate in every particular,
without alteration or enlargement or any
change whatever. If this Warrant is held of
record by two or more joint owners, all such
owners must sign.
Date: ____________
-16-
PURCHASE AGREEMENT
PURCHASE AGREEMENT (the "Agreement") dated as of July 15, 1998, among
CHASE CAPITAL PARTNERS, a New York general partnership ("CCP"), CHASE VENTURE
CAPITAL ASSOCIATES, L.P., a California limited partnership ("CVCA" or the
"Seller") and CB CAPITAL INVESTORS, L.P., a Delaware limited partnership ("CB
Capital" or the "Buyer").
WHEREAS, CVCA owns the following securities (collectively, the
"Securities") of iXL Holdings, Inc., a Delaware corporation (the "Company"):
. 46,153 shares of Class B Preferred Stock (certificate B-1);
. 6,390 Warrants to purchase Class B Preferred Stock;
. 9,232 shares of Class C Preferred Stock (certificate C-1); and
. Right to acquire additional Warrants to purchase Class B Preferred
Stock of the Company pursuant to Warrant Award Agreement dated as
of March 12, 1998.
WHEREAS, the parties hereto deem it desirable and in their respective
best interests to enter into this Agreement to transfer the Securities from CVCA
to CB Capital.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Purchase and Sale.
-----------------
(a) CVCA hereby sells the Securities to CB Capital, and CB Capital
hereby purchases the Securities from CVCA, for a purchase price of
$17,917,812.44, which purchase price equals the fair market value of the
Securities, as determined by the parties hereto.
(b) CCP hereby consents to the sale of the Securities to CB Capital.
(c) This Agreement shall constitute a stock power authorizing the
Company to record on its books and records the transfer of the Securities from
CVCA to CB Capital.
(d) All transfers of Securities contemplated herein shall be deemed to
occur on the date hereof. All necessary bookkeeping entries shall be made
accordingly.
2. Buyers Representations.
----------------------
The Buyer represents and warrants that it is purchasing the Securities
for its own account, for investment purposes and not with a view to the
distribution thereof. The Buyer agrees that it will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
of the Securities (or solicit any offers to buy, purchase, or otherwise acquire
or take a pledge of any of its Securities, except in compliance with the
Securities Exchange Act of 1933, as amended (the "Securities Act") and the
Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations under the
Securities Act and the Exchange Act. The Buyer represents and warrants that it
has acquired such information about the Company, and has had an opportunity to
ask such questions of the Company's officers, as it has deemed necessary in
order to make an informal investment decision concerning the Securities. The
Buyer further represents and warrants that it is an "accredited investor" (as
such term is defined by Rule 501 of the Securities Act) and it has such
knowledge and sophistication necessary to use such knowledge to make an informed
investment decision and that it has the ability to bear the economic risks of
any such investment.
3. The Sellers Representations.
---------------------------
The Seller represents and warrants as follows:
(a) It owns (and upon completion of the transactions contemplated
herein, the Purchaser will acquire), beneficially and of record, the Securities
free and clear of all encumbrances (other than transfer restrictions pursuant to
the Securities Act and encumbrances pursuant to the Second Amended and Restarted
Stockholders Agreement dated as of December 17, l977, as amended, among the
Company and the stockholders party thereto (the "Stockholders Agreement");
(b) The transfer of Securities to the Buyer is (i) exempt from the
registration requirements of the Securities Act and (ii) permitted by the
Stockholders Agreement, and
(c) No consents are necessary for CVCA to sell the Securities.
4. Miscellaneous.
-------------
(a) This Agreement may be executed in two or more counterparts, any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together when delivered shall constitute one and the
same agreement.
(b) This Agreement contains the complete agreement among the parties
and supersedes any prior understandings, agreements or representations by or
between the parties, written or oral which may have related to the subject
matter hereof in any way.
(c) This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
(d) This Agreement may only be amended in a writing executed by all
parties hereto.
* * *
2
IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement on the date first written above.
CHASE CAPITAL PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director/
Chief Administrative Officer
CHASE VENTURE CAPITAL
ASSOCIATES ,L.P.
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director/
Chief Administrative Officer
CB CAPITAL INVESTORS, L.P.
By: CB CAPITAL INVESTORS, INC.
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
3
The Company, in reliance upon the representations set forth in
Sections II and III above, hereby waives compliance with the requirements set
forth in the Stockholders Agreement.
iXL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
4