<PAGE>
As filed with the Securities and Exchange Commission on November 18, 1999
Registration Statement No. 333-88847
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Amendment No. 2 to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
iXL Enterprises, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 7373 58-2234342
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
--------------
1900 Emery St., NW
Atlanta, GA 30318
(800) 573-5544
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------
U. BERTRAM ELLIS, JR.
Chief Executive Officer
iXL Enterprises, Inc.
1900 Emery St., NW
Atlanta, GA 30318
(404) 267-3800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
JAMES S. ALTENBACH GREGORY C. SMITH
Minkin & Snyder Skadden, Arps, Slate,
One Buckhead Plaza Meagher & Flom LLP
3060 Peachtree Road, Suite 1100 525 University Avenue
Atlanta, GA 30305 Palo Alto, CA 94301
(404) 261-8000 (650) 470-4500
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
--------------
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, all of which will
be paid by iXL. All amounts are estimates, other than the registration fee, the
NASD fee, and the NASDAQ listing fee.
<TABLE>
<S> <C>
Registration fee................................................. $ 76,648
NASD fee......................................................... 15,000
NASDAQ listing fee............................................... 17,500
Accounting fees and expenses..................................... 40,000
Legal fees and expenses.......................................... 250,000
Director and officer insurance expenses.......................... --
Printing and engraving........................................... 500,000
Transfer Agent fees and expenses................................. 15,000
Blue sky fees and expenses....................................... 5,000
Miscellaneous expenses........................................... 200,852
----------
Total.......................................................... $1,120,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers.
iXL's Certificate of Incorporation and Bylaws provide that officers and
directors who are made a party to or are threatened to be made a party to or is
otherwise involved in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was an officer or a director of iXL or is or was serving at the request
of iXL as a director or an officer of another corporation or of a partnership,
joint venture, trust, or other enterprise, including service with respect to an
employee benefit plan (an "indemnitee"), whether the basis of such proceeding
is alleged action in an official capacity as a director or officer or in any
other capacity while serving as a director or officer, shall be indemnified and
held harmless by iXL to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits iXL
to provide broader indemnification rights than permitted prior thereto),
against all expense, liability, and loss (including, without limitation,
attorneys' fees, judgments, fines, excise taxes or penalties, and amounts paid
or to be paid in settlement) incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue with respect to an
indemnitee who has ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that iXL shall indemnify any such indemnitee in connection with a
proceeding initiated by such indemnitee only if such proceeding was authorized
by the Board of Directors. The right to indemnification includes the right to
be paid by iXL for expenses incurred in defending any such proceeding in
advance of its final disposition. Officers and directors are not entitled to
indemnification if such persons did not meet the applicable standard of conduct
set forth in the Delaware General Corporation Law for officers and directors.
Section 145 of the Delaware General Corporation Law provides, among other
things, that iXL may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of iXL) by reason
of the fact that the person is or was a director, officer, agent or employee of
iXL or is or was serving at the iXL's request as a director, officer, agent, or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. The power to indemnify
II-1
<PAGE>
applies if such person is successful on the merits or otherwise in defense of
any action, suit or proceeding, or if such person acted in good faith and in a
manner he reasonably believed to be in the best interest, or not opposed to the
best interest, of iXL, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The power to
indemnify applies to actions brought by or in the right of iXL as well, but
only to the extent of defense expenses (including attorneys' fees but excluding
amounts paid in settlement) actually and reasonably incurred and not to any
satisfaction of a judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to iXL, unless the court believes that in light of all the circumstances
indemnification should apply.
The indemnification provisions contained in iXL's Certificate of
Incorporation and Bylaws are not exclusive of any other rights to which a
person may be entitled by law, agreement, vote of stockholders or disinterested
directors or otherwise. In addition, iXL maintains insurance on behalf of its
directors and executive officers insuring them against any liability asserted
against them in their capacities as directors or officers or arising out of
such status.
Item 15. Recent Sales of Unregistered Securities.
The following is a summary of transactions by iXL since its inception
involving sales of iXL's securities that were not registered under the
Securities Act of 1933.
1. On April 12, 1996, iXL issued and sold 300 shares of common stock in a
private placement to U. Bertram Ellis, Jr., James V. Sandry and James S.
Altenbach, each a founder of iXL for an aggregate of $300 in reliance on the
exemption from registration provided by Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
2. On April 30, 1996, iXL issued and sold 101,500 shares of its Class A
Convertible Preferred Stock, in a private placement to eight investors for an
aggregate of $10,150,000 in reliance on the exemption from registration
provided by Section 4(2) of the Securities Act and Rule 506 of Regulation D
promulgated thereunder. The eight investors were Kelso Investment Associates
V, L.P., Kelso Equity Partners V, L.P., U. Bertram Ellis, Jr., James V. Sandry,
James S. Altenbach and three other investors.
3. On April 30, 1996, iXL issued and sold 3,959,500 shares of common
stock in a private placement to ten investors in connection with the
acquisition of iXL Interactive Excellence, Inc., Creative Video Library, Inc.,
Creative Video, Inc. and Entrepreneur Television, Inc. Each of the investors
was a stockholder of one of the acquired corporations. The issuance of common
stock was made in reliance on Section 4(2) of the Securities Act and Rule 506
of Regulation D promulgated thereunder.
4. During the period from April 30, 1996 through September 30, 1999, iXL
granted for no cash consideration options to purchase an aggregate of
26,955,164 shares of common stock to 1,589 employees pursuant to the IXL
Holdings, Inc. 1996 Stock Option Plan in reliance on Rule 701 promulgated under
the Securities Act and under Section 4(2) of the Securities Act. Options issued
for 17,414,662 shares of common stock cannot be exercised prior to the earlier
of the registration of the underlying common stock under the Securities Act or
six years from the date of issuance.
5. On September 30, 1996, iXL issued and sold 10,000 shares of its Class
A Convertible Preferred Stock for $1,000,000 in a private placement to U.
Bertram Ellis, Jr., James V. Sandry and James S. Altenbach, and 25,000 shares
of common stock for $25,000 in a private placement to one additional executive
officer of iXL, each in reliance on the exemption from registration provided by
Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated
thereunder.
6. On December 16, 1996, iXL issued and sold 50,000 shares of common
stock in a private placement to one stockholder of Consumer Financial Network,
Inc. in connection with the acquisition of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
II-2
<PAGE>
7. On February 15, 1997, iXL issued and sold 40,000 shares of common
stock in a private placement to two members of Webbed Feet, LLC in connection
with the acquisition of that company by iXL. This issuance of common stock was
made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
8. On April 4, 1997, iXL issued and sold 454,400 shares of its common
stock in a private placement to one stockholder of The Whitley Group, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
9. From April 4, 1997 through August 29, 1997, iXL issued and sold an
aggregate of 57,760 shares of its Class A Convertible Preferred Stock for an
aggregate of $14,440,000 to 38 investors in reliance on Section 4(2) of the
Securities Act and Rule 506 of Regulation D promulgated thereunder. The 38
investors were Kelso Investment Associates V, L.P., Kelso Equity Partners V,
L.P., six directors or executive officers of iXL and 30 other persons.
10. On May 31, 1997, iXL issued and sold 3,416,700 shares of common
stock, and warrants to purchase 230,900 shares of common stock in a private
placement to 11 stockholders of BoxTop Interactive, Inc. in connection with the
acquisition of that corporation by iXL. This issuance of securities was made in
reliance on Section 4(2) of the Securities Act and Rule 506 of Regulation D
promulgated thereunder.
11. On July 28, 1997, iXL issued and sold 283,900 shares of common stock
in a private placement to five stockholders of Swan Interactive Media, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
12. From December 17, 1997 through December 23, 1997, iXL issued and sold
in a private placement to four investors (i) 83,075 shares of its Class B
Convertible Preferred Stock, and warrants to purchase 10,650 shares of Class B
Convertible Preferred Stock for an aggregate of $26,999,375 and (ii) 9,232
shares of its Class C Convertible Preferred Stock, for an aggregate of
$3,000,400 in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder. The investors were Chase Venture Capital
Associates, L.P., Flatiron Partners, LLC, Greylock IX Limited Partnership and
General Electric Capital Corporation.
13. On January 23, 1998, iXL issued and sold 271,356 shares of common
stock in a private placement to two stockholders of Small World Software, Inc.
in connection with the acquisition of that corporation. This issuance of common
stock was made in reliance on Section 4(2) of the Securities Act and Rule 506
of Regulation D promulgated thereunder.
14. On February 5, 1998, iXL issued and sold 344,270 shares of common
stock in a private placement to 18 members of Green Room Productions, L.L.C. in
connection with the acquisition of that company by iXL. This issuance of common
stock was made in reliance on Section 4(2) of the Securities Act and Rule 506
of Regulation D promulgated thereunder.
15. From February 19, 1998 through February 27, 1998, iXL issued and sold
in a private placement an aggregate of (a) 3,192 shares of its Class A
Convertible Preferred Stock and (b) 15,692 shares of its Class B Convertible
Preferred Stock plus warrants to purchase 1,810 shares of Class B Convertible
Preferred Stock for an aggregate of $6,137,300 to 13 investors in reliance on
the exemption from registration provided by Section 4(2) of the Securities Act
and Rule 506 of Regulation D promulgated thereunder. The investors were Mellon
Ventures II, L.P., Thomson U.S. Inc. and 11 other persons who were either then
executive officers or employees of iXL, family members of executive officers or
employees of iXL or existing stockholders of iXL.
16. On March 27, 1998, iXL issued and sold 266,000 shares of common stock
in a private placement to Continental Communications Group, Inc. in connection
with the acquisition of certain assets of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
II-3
<PAGE>
17. On May 8, 1998, iXL issued and sold 155,200 shares of common stock in
a private placement to five stockholders of Spin Cycle Entertainment, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
18. On May 12, 1998, iXL issued and sold 195,834 shares of common stock
in a private placement to three stockholders of InTouch Interactive, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
19. On May 12, 1998, iXL issued and sold 359,584 shares of common stock
in a private placement to four stockholders of Digital Planet in connection
with the acquisition of that corporation by iXL. This issuance of common stock
was made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
20. On May 14, 1998, iXL issued and sold 740,000 shares of common stock
in a private placement to two stockholders of Micro Interactive, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
21. On May 20, 1998, iXL issued and sold an aggregate of 539 shares of
Class A Convertible Preferred Stock in a private placement to four investors
for an aggregate consideration of $175,175. This issuance of common stock was
made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
22. From June 29, 1998 through September 18, 1998, iXL issued and sold an
aggregate of 4,300 shares of Class A Convertible Preferred Stock in a private
placement to 53 investors, including David E. Clauson and William C. Nussey,
for an aggregate consideration of $4,300,000. This issuance was made in
reliance on Section 4(2) of the Securities Act and Rule 506 of Regulation D
promulgated thereunder.
23. On July 2, 1998, iXL issued and sold 877,898 shares of common stock
in a private placement to six stockholders of CommerceWAVE, Inc. in connection
with the acquisition of that corporation by iXL. This issuance of common stock
was made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
24. On July 8, 1998, iXL issued and sold 50,000 shares of common stock in
a private placement to two stockholders of Wissing & Laurence, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
25. On July 16, 1998, iXL issued and sold 200,000 shares of common stock
in a private placement to two stockholders of 601 Design, Inc. in connection
with the acquisition by iXL of certain assets of the 601 Design business. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
26. On July 22, 1998, iXL issued and sold 378,999 shares of common stock
in a private placement to six stockholders of Image Communications, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
27. On July 28, 1998, iXL issued and sold 37,107 shares of common stock
in a private placement to two Spanish stockholders of Campana New Media, S.L.
and The Other Media, S.L. This issuance of common stock was made in reliance on
Section 4(2) of the Securities Act or, in the alternative, on the Securities
Act not being applicable to this transaction.
II-4
<PAGE>
28. On July 30, 1998, iXL issued and sold 674,132 shares of common stock
in a private placement to two stockholders of Spinners Incorporated in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
29. From August 14, 1998 through August 31, 1998, iXL issued and sold an
aggregate of 35,700 shares of Class D Nonvoting Preferred Stock, par value $.01
per share, in a private placement to 10 accredited investors for an aggregate
consideration of $35,700,000 in reliance on Section 4(2) of the Securities Act.
The investors were CB Capital Investors, LP, The Flatiron Fund 1998/99, LLC,
Friends of Flatiron, LLC, Mellon Ventures II, L.P., Thomson U.S. Inc., General
Electric Capital Corporation, Kelso Investment Associates V, L.P., Kelso Equity
Partners V, L.P., U. Bertram Ellis, Jr. and James S. Altenbach.
30. On September 4, 1998, iXL issued and sold 762,622 shares of common
stock in a private placement to two stockholders of Tekna, Inc. in connection
with the acquisition of that corporation by iXL. This issuance of common stock
was made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
31. On September 7, 1998, iXL issued and sold 321,428 shares of common
stock in a private placement to four German stockholders of LAVA Gesellschaft
fur Digitale Medien GmbH in connection with the acquisition of that corporation
by iXL. This issuance of common stock was made in reliance on Section 4(2) of
the Securities Act or, in the alternative, on the Securities Act not being
applicable to this transaction.
32. On September 9, 1998, iXL issued and sold 113,823 shares of common
stock and warrants to purchase 9,106 shares of common stock in a private
placement to four securities holders of Larry Miller Productions, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
33. On September 10, 1998, iXL issued and sold 42,852 shares of common
stock in a private placement to one British stockholder of Denovo New Media
Limited in connection with the acquisition of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act or in the alternative, on the Securities Act not being applicable to this
transaction.
34. On September 10, 1998, iXL issued and sold 275,000 shares of common
stock in a private placement to one stockholder of Exchange Place Solutions,
Inc. in connection with the acquisition of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
35. On September 18, 1998, iXL issued and sold 271,787 shares of common
stock in a private placement to three stockholders of Pantheon Interactive,
Inc. in connection with the acquisition of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
36. On September 18, 1998, iXL issued and sold 269,421 shares of common
stock in a private placement to six members of Two-Way Communications, L.L.C.
in connection with the acquisition of that company by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
37. On September 22, 1998, iXL issued and sold 701,375 shares of common
stock in a private placement to one member of NetResponse, L.L.C. in connection
with the acquisition of that company by iXL. This issuance of common stock was
made in reliance on Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
II-5
<PAGE>
38. On September 23, 1998, iXL issued and sold 358,551 shares of common
stock in a private placement to one stockholder of Ionix Development
Corporation in connection with the acquisition of that corporation by iXL. This
issuance of common stock was made in reliance on Section 4(2) of the Securities
Act and Rule 506 of Regulation D promulgated thereunder.
39. On September 24, 1998, iXL issued and sold 378,066 shares of common
stock in a private placement to three stockholders of Pequot Systems, Inc. in
connection with the acquisition of that corporation by iXL. This issuance of
common stock was made in reliance on Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
40. On October 15, 1998, iXL issued and sold 2,000 shares of common stock
in a private placement to one investor in connection with a joint marketing
relationship. This issuance of common stock was made in reliance on Section
4(2) of the Securities Act.
41. On December 14, 1998, iXL issued for no cash consideration warrants
to purchase 500,000 shares of common stock in a private placement to General
Electric Capital Corporation in reliance on Section 4(2) of the Securities Act.
42. During the period from December 10, 1998 through September 30, 1999,
iXL granted for no cash consideration options to purchase an aggregate of
665,964 shares of common stock to 33 non-employee directors or consultants of
iXL pursuant to the iXL Enterprises, Inc. 1998 Non-Employee Stock Option Plan
in reliance on the exemption from registration provided by Section 4(2) of the
Securities Act. Options issued for 451,064 shares of common stock cannot be
exercised prior to the earlier of the registration of the underlying common
stock under the Securities Act or six years from the date of issuance.
43. On December 31, 1998, iXL issued for no cash consideration warrants
to purchase 500,000 shares of common stock in a private placement to Delta Air
Lines, Inc., in reliance on the exemption from registration provided by Section
4(2) of the Securities Act. These warrants were issued in connection with a
services agreement between iXL, Inc. and Delta Air Lines, Inc.
44. From January 15, 1999 through January 19, 1999, iXL issued and sold
22,825 shares of Class A Convertible Preferred Stock in a private placement to
Greystone Capital Partners I, L.P., Trigon Healthcare, Inc., Cox Technology
Investments, Inc., General Electric Capital Assurance Company and 23 other
investors, for an aggregate consideration of $22,825,000 in reliance on the
exemption from registration provided by Section 4(2) of the Securities Act and
Rule 506 of Regulation D promulgated thereunder.
45. On May 3, 1999, iXL issued for no cash consideration warrants to
purchase 1,000,000 shares of common stock in a private placement to GE Capital
Equity Investments, Inc. in reliance on the exemption from registration
provided by Section 4(2) of the Securities Act and Rule 506 of Regulation D
promulgated thereunder. These warrants were issued in connection with a
services agreement between iXL-New York, Inc. and General Electric Capital
Corporation.
46. On June 8, 1999, iXL issued to GE Capital Equity Investments, Inc.
and General Electric Pension Trust (1) 2,000,000 shares of common stock for
cash consideration of $24,000,000 and (2) warrants to purchase 1,500,000 shares
of common stock (for no cash consideration), each in reliance on the exemption
from registration provided by Section 4(2) of the Securities Act and Rule 506
of Regulation D promulgated thereunder.
47. During the period from February 3, 1999 through September 30, 1999,
iXL granted for no cash consideration options to purchase an aggregate of
5,188,267 shares of common stock to 759 employees pursuant to the iXL
Enterprises, Inc. 1999 Stock Option Plan in reliance on the exemption from
registration provided by Section 4(2) of the Securities Act. These options
cannot be exercised prior to the registration of the underlying common stock
under the Securities Act.
II-6
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
a. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Form of U.S. Purchase Agreement
1.2 Form of International Purchase Agreement
2.1 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Creative Video Library, Inc. and its stockholders for the
purchase of all of the issued and outstanding capital stock of
Creative Video Library, Inc.+
2.2 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Creative Video, Inc. and its stockholders for the purchase of
all of the issued and outstanding capital stock of Creative Video,
Inc.+
2.3 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., IXL Interactive Excellence, Inc. and its stockholders for the
purchase of all of the issued and outstanding Stock of IXL Interactive
Excellence, Inc.+
2.4 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Entrepreneur Television, Inc. and its stockholders for the
purchase of all of the issued and outstanding capital stock of
Entrepreneur Television, Inc.+
2.5 Purchase and Sale Agreement, dated as of June 5, 1996, by and among
IXL Acquisition Corp., Memphis On Line, Inc. Southern On Line Systems,
Inc., and Southern Tel Supply, Inc.+
2.6 Agreement and Plan of Merger, dated as of December 13, 1996, by and
among IXL Merger Corp., the Registrant, Consumer Financial Network,
Inc., Mellett, Reene & Smith, LLC, Derek V. Smith, Michael W. Reene
and Edwin R. Mellett.+
2.7 Asset Purchase Agreement, dated as of February 14, 1997, by and
between iXL Enterprises, Inc., iXL, Inc., Webbed Feet, LLC, F. Blair
Schmidt-Fellner and Michael Brendon Dowdle.+
2.8 Agreement and Plan of Merger, dated as of April 4, 1997, by and
between iXL Enterprises, Inc., IXL Merger Corp. II, Inc., The Whitley
Group, Inc. and William C. Whitley.+
2.9 Agreement of Plan of Merger, dated as of May 30, 1997, by and between
iXL Enterprises, Inc., IXL Merger Corp. III, Inc., BoxTop Interactive,
Inc., and the Shareholders of Boxtop Interactive, Inc.+
2.10 Agreement and Plan of Merger, dated as of July 28, 1997, by and
between iXL Enterprises, Inc., IXL Merger Corp. IV, Inc., Mark
Swanson, N. Blake Patton, Marc Sirkin, Edwin Davis, Estate of
Robert H. Kriebel and Swan Interactive Media, Inc.+
2.11 Agreement and Plan of Merger, dated as of January 23, 1998, by and
between iXL Enterprises, Inc., iXL-New York, Inc., Small World
Software, Inc., and the Shareholders of Small World.+
2.12 Asset Purchase Agreement, dated as of February 5, 1998, by and between
iXL Enterprises, Inc., iXL-San Francisco, Inc., Green Room
Productions, L.L.C. and the Controlling Members.+
2.13 Asset Purchase Agreement, dated as of March 27, 1998, by and between
iXL Enterprises, Inc., iXL-Denver, Inc., Continental Communications
Group, Inc., d/b/a Customer Communications Group, Inc. and John R.
Klug.+
2.14 Agreement and Plan of Merger, dated as of May 4, 1998, by and between
iXL Enterprises, Inc., iXL-New York, Inc., Micro Interactive, Inc. and
the Micro Shareholders.+
2.15 Agreement and Plan of Merger, dated as of May 8, 1998, by and between
iXL Enterprises, Inc., iXL-Los Angeles, Inc., Spin Cycle Entertainment
and the SCE Shareholders.+
2.16 Agreement and Plan of Merger, dated as of May 12, 1998, by and between
iXL Enterprises, Inc., iXL-Los Angeles, Inc., Digital Planet and the
Digital Shareholders.+
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
2.17 Agreement and Plan of Merger, dated as of May 12, 1998, by and between
InTouch Interactive, Inc., iXL Enterprises, Inc., iXL-Charlotte, Inc.,
and the InTouch Shareholders.+
2.18 Share Sale and Purchase Agreement dated as of 11 May, 1998 between,
iXL London Limited, and Derek Scanlon.+
2.19 Agreement and Plan of Merger, dated as of July 2, 1998, by and between
CommerceWAVE, Inc., iXL Enterprises, Inc., iXL-San Diego, Inc., and
the CommerceWAVE shareholders.+
2.20 Agreement and Plan of Merger, dated as of July 8, 1998, by and between
iXL Enterprises, Inc., iXL-New York, Inc., Wissing & Laurence, Inc.
and the W&L Shareholders.+
2.21 Asset Purchase Agreement, dated as of July 16, 1998, by and among
Robert Ortiz and John Tierney, iXL Enterprises, Inc. and iXL-New York,
Inc.+
2.22 Agreement and Plan of Merger, dated as of July 22, 1998, by and
between Image Communications, Inc., iXL Enterprises, Inc., iXL-DC,
Inc., and the Image Shareholders.+
2.23 Share Purchase Agreement, dated as of July 28, 1998, by and among iXL
Enterprises, Inc., iXL-Madrid, S.A., Campana New Media, S.L, The Other
Media, S.L., the Campana Companies Beneficial Owners and the Campana
Companies Shareholders.+
2.24 Agreement and Plan of Merger, dated as of July 30, 1998, by and among
Spinners Incorporated, iXL Enterprises, Inc., iXL-Boston, Inc. and the
Spinners Shareholders.+
2.25 Agreement and Plan of Merger, dated as of September 4, 1998, by and
among iXL Enterprises, Inc., iXL-Richmond, Inc., Tekna, Inc., and the
Tekna Shareholders.+
2.26 Share Sale and Purchase Agreement, dated as of September 7, 1998, by
and between iXL Enterprises, Inc., Jens Bley, Manfred Otterbreit,
Stephan Balzerand Matthias Oelmann.+
2.27 Agreement and Plan of Merger dated as of September 9, 1998 by and
among iXL Enterprises, Inc., iXL-Boston, Inc., Larry Miller
Productions, Inc., and the LMP Principals.+
2.28 Agreement and Plan of Merger, dated as of September 10, 1998, by and
between iXL Enterprises, Inc., iXL, Inc., Exchange Place Solutions,
Inc., and the Exchange Place Shareholder.+
2.29 Agreement and Plan of Merger, dated as of September 18, 1998, by and
among iXL Enterprises, Inc., iXL-San Francisco, Inc., Pantheon
Interactive, Inc., and the Pantheon Shareholders.+
2.30 Agreement and Plan of Merger, dated as of September 18, 1998, by and
among iXL Enterprises, Inc., iXL-Chicago, Inc., Two-Way
Communications, L.L.C., and the TWC Members.+
2.31 Agreement and Plan of Merger, dated as of September 22, 1998, by and
between iXL Enterprises, Inc., iXL-DC, Inc., NetResponse, L.L.C., and
Next Century Communications Corp.+
2.32 Agreement and Plan of Merger, dated as of September 23, 1998, by and
among iXL Enterprises, Inc., iXL-Chicago, Inc., Ionix Development,
Corporation, and the Ionix Shareholder.+
2.33 Agreement and Plan of Merger, dated as of September 24, 1998, by and
between iXL Enterprises, Inc., iXL-Connecticut, Inc., Pequot Systems,
Inc. and the Pequot Shareholders.+
2.34 Agreement and Plan of Merger, dated as of October 4, 1999, by and
between iXL Enterprises, Inc., iXL-Massachusetts, Inc. and Tessera
Enterprise Systems, Inc.+++
3.1 Amended and Restated Certificate of Incorporation.++
3.2 Amended and Restated Bylaws.++
4.1 Form of Common Stock Certificate.+
4.2 Form of Mandatorily Exercisable Common Stock Warrant Agreement.+
4.3 Form of Class B Convertible Preferred Stock Warrant Agreement.+
4.4 Form of Class A Common Stock Warrant Agreement.+
4.5 Form of Class B Common Stock Warrant Agreement.+
4.6 Investor Stockholders Agreement, dated as of April 30, 1996, as
amended.+
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.7 Third Amended and Restated Stockholders' Agreement.++
5.1 Opinion of Minkin & Snyder, a Professional Corporation.
10.1 Employment Agreement between Boxtop Interactive, Inc. and Kevin Wall,
dated as of August 1, 1996, as amended, together with related
agreements.
10.2 Employment Agreement dated as of May 1, 1998 between iXL, Inc. and
William C. Nussey.+
10.3 Employment Agreement dated August 17, 1998 between iXL, Inc. and David
Clauson.+
10.4 Employment Agreement dated November 28, 1999 between Consumer
Financial Network, Inc. and C. Cathleen Raffaeli.+
10.5 iXL Enterprises, Inc. 1996 Stock Option Plan, together with related
agreements.+
10.6 iXL Enterprises, Inc. 1998 Non-Employee Stock Option Plan, together
with related agreements.+
10.7 iXL Enterprises, Inc. 1999 Employee Stock Option Plan.+
10.8 Advisory Agreement dated as of April 30, 1996 by and between IXL
Holdings, Inc. and Kelso & Company, together with form of amendment.+
10.9 Consulting Agreement dated as of February 5, 1999 by and between iXL
Enterprises, Inc. and Kelso & Company.+
10.10 Promissory Note, dated as of January 14, 1997, made by IXL-Memphis,
Inc. in favor of First Tennessee Bank National Association, in the
original principal amount of $499,000 and agreements related thereto.+
10.11 Promissory Note, dated as of May 30, 1997, in the principal aggregate
amount of $50,000 in favor of the Registrant from Kevin Wall.+
10.12 Promissory Note, dated as of September 15, 1997, in the principal
aggregate amount of $500,000 in favor of U. Bertram Ellis from iXL
Enterprises, Inc.+
10.13 Promissory Note, dated as of September 18, 1997, in the principal
aggregate amount of $300,000 in favor of James Rocco from iXL
Enterprises, Inc.+
10.14 Promissory Note, dated as of September 29, 1997, in the principal
aggregate amount of $100,000 in favor of James S. Altenbach from iXL
Enterprises, Inc.+
10.15 Promissory Note, dated as of October 10, 1997, in the principal
aggregate amount of $1,000,000 in favor of U. Bertram Ellis, Jr. from
iXL Enterprises, Inc.+
10.16 Promissory Note, dated as of October 30, 1997, in the principal
aggregate amount of $1,000,000 in favor of U. Bertram Ellis, Jr. from
iXL Enterprises, Inc.+
10.17 Promissory Note, dated as of November 25, 1997, in the principal
aggregate amount of $1,000,000 in favor of U. Bertram Ellis, Jr. from
iXL Enterprises, Inc.+
10.18 Promissory Note, dated as of December 3, 1997, in the principal
aggregate amount of $1,300,000 in favor of U. Bertram Ellis, Jr. from
iXL Enterprises, Inc.+
10.19 Promissory Note, dated as of June 19, 1998, in the principal aggregate
amount of $4,000,000 in favor of Deborah Hicks Ellis from iXL
Enterprises, Inc. and certain of its subsidiaries and related
agreements.+
10.20 Promissory Note, dated as of July 20, 1998, in the principal aggregate
amount of $2,000,000 in favor of U. Bertram Ellis, Jr. from iXL
Enterprises, Inc.+
10.21 Credit Agreement, dated as of July 29, 1998, as amended and restated
as of November 30, 1998, among iXL Enterprises, Inc., the Lenders
party thereto and The Chase Manhattan Bank as Administrative Agent and
related agreements.+
10.22 Promissory Note, dated as of September 18, 1998, between David Clauson
(as Maker) and iXL Enterprises, Inc. together with Stock Pledge
Agreement.+
10.23 Subscription Agreement for Common Stock dated April 12, 1996 between
iXL Enterprises, Inc. and U. Bertram Ellis, Jr.+
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.24 Subscription Agreement for Common Stock dated April 12, 1996 between
iXL Enterprises, Inc. and James S. Altenbach.+
10.25 Subscription Agreement for Class A Convertible Preferred Stock dated
April 30, 1996 between iXL Enterprises, Inc. and U. Bertram Ellis,
Jr.+
10.26 Subscription Agreement for Class A Convertible Preferred Stock dated
April 30, 1996 between iXL Enterprises, Inc. and U. Bertram Ellis,
Jr., James V. Sandry and James S. Altenbach.+
10.27 Subscription Agreement for Class A Convertible Preferred Stock dated
June 3, 1996 between iXL Enterprises, Inc. and James S. Altenbach.+
10.28 Subscription Agreement for Class A Convertible Preferred Stock dated
April 4, 1997 between iXL Enterprises, Inc. and Kelso Investment
Associates V, L.P.+
10.29 Subscription Agreement for Class A Convertible Preferred Stock dated
April 4, 1997 between iXL Enterprises, Inc. and Kelso Equity Partners
V, L.P.+
10.30 Subscription Agreement for Class A Convertible Preferred Stock dated
April 4, 1997 between iXL Enterprises, Inc. and U. Bertram Ellis, Jr.+
10.31 Subscription Agreement for Class A Convertible Preferred Stock dated
April 4, 1997 between iXL Enterprises, Inc. and James S. Altenbach.+
10.32 Intentionally Omitted.
10.33 Subscription Agreement for Class A Convertible Preferred Stock dated
August 25, 1998 between iXL Enterprises, Inc. and William C. Nussey.+
10.34 Subscription Agreement for Class A Convertible Preferred Stock dated
September 18, 1998 between iXL Enterprises, Inc. and David Clauson.+
10.35 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Creative Video Library, Inc. and its stockholders for the
purchase of all of the issued and outstanding capital stock of
Creative Video Library, Inc. (contained in Exhibit 2.1).+
10.36 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Creative Video, Inc. and its stockholders for the purchase of
all of the issued and outstanding capital stock of Creative Video,
Inc. (contained in Exhibit 2.2).+
10.37 Exchange Agreement, dated April 30, 1996, between iXL Enterprises,
Inc., Entrepreneur Television, Inc. and its stockholders for the
purchase of all of the issued and outstanding capital stock of,
Entrepreneur Television, Inc. (contained in Exhibit 2.3).+
10.38 Agreement and Plan of Merger, dated May 30, 1997, by and among iXL
Enterprises, Inc., iXL Merger Corp. III, Inc., Boxtop Interactive,
Inc., and the Stockholders of Boxtop Interactive, Inc. (contained in
Exhibit 2.9).+
10.39 Securities Purchase Agreement, dated December 17, 1997, among iXL
Enterprises, Inc. and Chase Venture Capital Associates, L.P., Flatiron
Partners, LLC and Greylock IX Limited Partnership and related
agreement.+
10.40 Warrant Agreement, dated as of December 17, 1997, by and among iXL
Enterprises, Inc., Chase Venture Capital Associates, L.P., Flatiron
Partners, L.L.C., and Greylock IX Limited Partnership.+
10.41 Securities Purchase Agreement, dated December 23, 1997, among iXL
Enterprises, Inc. and General Electric Capital Corporation.+
10.42 Warrant Award Agreement dated as of December 23, 1997 by and between
iXL Enterprises, Inc. and General Electric Capital Corporation.+
10.43 Warrant Agreement, dated as of December 23, 1997, by and between iXL
Enterprises, Inc. and General Electric Capital Corporation.+
10.44 Warrant Award Agreement dated as of March 12, 1998 by and between iXL
Enterprises, Inc. and Chase Venture Capital Associates, L.P., and
related agreement.+
</TABLE>
II-10
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.45 Securities Purchase Agreement, dated March 30, 1998, between iXL
Enterprises, Inc. and Kevin Wall for the purchase of shares of iXL
Enterprises, Inc.'s Common Stock.+
10.46 Securities Purchase Agreement, dated August 14, 1998, among iXL
Enterprises, Inc. and CB Capital Investors, L.P., The Flatiron Fund
1998/99, LLC, Friends of Flatiron, LLC, and Mellon Ventures II, L.P.+
10.47 Securities Purchase Agreement, dated January 15, 1999, among iXL
Enterprises, Inc. and the Purchasers listed therein for the purchase
of shares of iXL Enterprises, Inc.'s Class A Convertible Preferred
Stock.+
10.48 Stock Purchase Agreement dated November 3, 1998, between Consumer
Financial Network, Inc. and General Electric Capital Corporation for
the purchase of shares of Series A Convertible Preferred Stock, $.01
par value per share, of Consumer Financial Network, Inc.+
10.49 Warrant Agreement, dated as of November 3, 1998, among iXL
Enterprises, Inc. and General Electric Capital Corporation.+
10.50 Stockholders' Agreement dated November 3, 1999 among Consumer
Financial Network, Inc., iXL Enterprises, Inc. and General Electric
Capital Corporation.+
10.51 Guaranty of License Agreement dated April 27, 1998 between Consumer
Financial Network, Inc. and Charter Federal Savings & Loan Association
of West Point, Georgia.+
10.52 Lease Agreement dated January 8, 1997 between Park Place Emery, L.L.C.
and iXL, Inc., as amended.+
10.53 Amended and Restated Registration Rights Agreement dated as of October
28, 1999 among iXL Enterprises, Inc. and Kelso Investment Associates
V, L.P., Kelso Equity Partners V, L.P., and certain other stockholders
of iXL Enterprises, Inc., together with the First Amendment to such
agreement, dated November 2, 1999.*
10.54 Indemnification Agreement dated June 8, 1999 by and among iXL
Enterprises, Inc. and the Indemnitees named therein.++
10.55 Amended and Restated Registration Rights Agreement by and among iXL
Enterprises, Inc., Consumer Financial Network, Inc., GE Capital Equity
Investments, Inc., General Electric Pension Trust and General Electric
Capital Corporation.++
10.56 Master Services Agreement dated April 7, 1999 by and between iXL-New
York, Inc. and General Electric Capital Corporation.+
10.57 Warrant Agreement dated April 7, 1999 by and between iXL Enterprises,
Inc. and GE Capital Equity Investments, Inc.+
10.58 Stock Purchase Agreement dated April 7, 1999 by and between Consumer
Financial Network, Inc., GE Capital Equity Investments, Inc., and
General Electric Pension Trust.+
10.59 Securities Purchase Agreement dated April 7, 1999 by and among iXL
Enterprises, Inc., GE Capital Equity Investments, Inc., and the
General Electric Pension Trust.+
10.60 Warrant Agreement dated June 8, 1999 by and between iXL Enterprises,
Inc. and GE Capital Equity Investments, Inc.++
10.61 Investor Agreement dated June 8, 1999 by and between GE Capital Equity
Investments, Inc., the General Electric Pension Trust, iXL
Enterprises, Inc., and Consumer Financial Network, Inc.++
10.62 Amended and Restated Stockholders' Agreement among Consumer Financial
Network, Inc., iXL Enterprises, Inc., GE Capital Equity Investments,
Inc., the General Electric Pension Trust and General Electric Capital
Corporation, as amended.++
10.63 Information Services Agreement dated June 30, 1997 among Consumer
Financial Network, Inc., CFN Agency, Inc. and Electric Insurance
Company.+
10.64 Master Service Agreement dated as of December 31, 1998 by and between
iXL, Inc. and Delta Air Lines, Inc.+
</TABLE>
II-11
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.65 Warrant Agreement dated December 31, 1998 by and between iXL
Enterprises, Inc. and Delta Air Lines, Inc.+
10.66 Letter Agreement for Marketing Services dated May 11, 1999 by and
between iXL Enterprises, Inc. and GE Capital Equity Investments, Inc.+
10.67 U.S. Purchase Agreement dated as of June 2, 1999 by and among iXL
Enterprises, Inc. and the underwriters listed therein.++
10.68 International Purchase Agreement dated as of June 2, 1999 by and among
iXL Enterprises, Inc. and the underwriters listed therein.++
10.69 iXL Enterprises, Inc. 1999B Employee Stock Option Plan.*
21.1 Subsidiaries of the Company.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of PricewaterhouseCoopers LLP.*
23.3 Consent of Minkin & Snyder, a Professional Corporation (contained in
Exhibit 5.1).
24.1 Power of Attorney.**
27.1 Financial Data Schedule.+
</TABLE>
- --------
+ Incorporated by reference to iXL's Registration Statement on Form S-1 (No.
333-71937).
++ Incorporated by reference to iXL's Registration Statement on Form S-4 (No.
333-81731).
+++ Incorporated by reference to iXL's Form 8-K dated October 12, 1999.
* Filed previously.
** Included on the signature pages to the initial filing of this Form S-1 filed
October 12, 1999.
b. Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing certificates in such denominations and registered
in such names as required by the underwriters to permit prompt delivery to each
purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions described in Item 14, or otherwise,
the registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable. In the event that a claim
for indemnification by the registrant against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of any
action, suit, or proceeding) is asserted by such director, or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or
(4) or 497 (h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Amendment No. 2 to registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Atlanta, State of Georgia, on November 18, 1999.
iXL Enterprises, Inc.,
a Delaware corporation
/s/ M. Wayne Boylston
By: _________________________________
Name:M. Wayne Boylston
Title:Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to registration statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ U. Bertram Ellis, Jr.* Chief Executive Officer
______________________________________ (Principal Executive
U. Bertram Ellis, Jr. Officer)
/s/ M. Wayne Boylston Chief Financial Officer November 18, 1999
______________________________________ (Principal Financial
M. Wayne Boylston Officer)
/s/ Jeffrey T. Arnold* Director
______________________________________
Jeffrey T. Arnold
/s/ Frank K. Bynum, Jr.* Director
______________________________________
Frank K. Bynum, Jr.
/s/ Jerome D. Colonna* Director
______________________________________
Jerome D. Colonna
/s/ William C. Nussey* Director
______________________________________
William C. Nussey
</TABLE>
II-13
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas G. Rosencrants* Director
______________________________________
Thomas G. Rosencrants
/s/ Jeffrey C. Walker* Director
______________________________________
Jeffrey C. Walker
/s/ Thomas R. Wall, IV* Director
______________________________________
Thomas R. Wall, IV
/s/ Gary C. Wendt* Director
______________________________________
Gary C. Wendt
/s/ M. Wayne Boylston Director November 18, 1999
______________________________________
*By: M. Wayne Boylston
Attorney-in-Fact
</TABLE>
II-14
<PAGE>
EXHIBIT 1.1
IXL ENTERPRISES, INC.
(a Delaware corporation)
5,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
Dated: November 18, 1999
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
U.S. PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties 3
------------------------------
(a) Representations and Warranties by the Company 3
(b) Representations and Warranties by the Selling Shareholders 13
(c) Officer's Certificates 15
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing 16
-----------------------------------------------
(a) Initial Securities 16
(b) Option Securities 16
(c) Payment 16
(d) Denominations; Registration 17
SECTION 3. Covenants of the Company 17
------------------------
(a) Compliance with Securities Regulations and Commission Requests 17
(b) Filing of Amendments 18
(c) Delivery of Registration Statements 18
(d) Delivery of Prospectuses 18
(e) Continued Compliance with Securities Laws 19
(f) Blue Sky Qualifications 19
(g) Rule 15819 19
(h) Use of Proceeds 19
(i) Listing 20
(j) Restriction on Sale of Securities 20
(k) Reporting Requirements 20
(l) Compliance with Rule 463 20
SECTION 4. Payment of Expenses 20
-------------------
(a) Expenses 20
(b) Expenses of the Selling Shareholders 21
(c) Termination of Agreement 21
(d) Allocation of Expenses 21
SECTION 5. Conditions of U.S. Underwriters' Obligations 21
--------------------------------------------
(a) Effectiveness of Registration Statement 21
(b) Opinions of Counsel for Company 22
(c) Opinion of Counsel for the Selling Shareholders 22
(d) Opinion of Counsel for U.S. Underwriters 22
(e) Officers' Certificate 22
(f) Certificate of Selling Shareholders 23
(g) Accountants' Comfort Letters 23
(h) Bring-down Comfort Letters 23
(i) Approval of Listing 23
(j) No Objection 23
(k) Lock-up Agreements 23
(l) Purchase of Initial International Securities 23
(m) Conditions to Purchase of International Option Securities 24
(n) Additional Documents 24
(o) Termination of Agreement 25
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 6. Indemnification 25
---------------
(a) Indemnification of U.S. Underwriters by the Company and Certain
Selling Shareholders 25
(b) Indemnification of U.S. Underwriters by Selling Shareholders Not
Listed on Schedule E hereto 26
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders 27
(d) Actions against Parties; Notification 27
(e) Settlement without Consent if Failure to Reimburse 28
(f) Order of Priority for Indemnification 28
(g) Other Agreements with Respect to Indemnification 28
SECTION 7. Contribution 28
------------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 30
--------------------------------------------------------------
SECTION 9. Termination of Agreement 30
------------------------
(a) Termination; General 30
(b) Liabilities 30
SECTION 10. Default by One or More of the U.S. Underwriters 31
-----------------------------------------------
SECTION 11. Default by One or More of the Selling Shareholders or the Company 31
-----------------------------------------------------------------
SECTION 12. Notices 32
-------
SECTION 13. Parties 32
-------
SECTION 14. GOVERNING LAW AND TIME 33
----------------------
SECTION 15. Effect of Headings 33
------------------
</TABLE>
SCHEDULE A Sch A-1
SCHEDULE B Sch B-1
SCHEDULE C Sch C-1
SCHEDULE D Sch D-1
SCHEDULE E Sch E-1
Exhibit A-1 A-1-1
Exhibit A-2 A-2-1
Exhibit A-3 A-3-1
Exhibit A-4 A-4-1
Exhibit B B-1
Exhibit C C-1
ii
<PAGE>
IXL ENTERPRISES, INC.
(a Delaware corporation)
5,600,000 Shares of Common Stock
(Par Value $0.01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
November 18, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
BancBoston Robertson Stephens Inc.
First Union Securities, Inc.
The Robinson-Humphrey Company, LLC
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
iXL Enterprises, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders") confirm their
respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch, Donaldson, Lufkin & Jenrette
Securities Corporation, BancBoston Robertson Stephens Inc., First Union
Securities, Inc., and The Robinson-Humphrey Company, LLC are acting as
representatives (in such capacity, the "U.S. Representatives"), with respect to
(i) the sale by the Company and Selling Shareholders, acting severally and not
jointly, and the purchase by the U.S. Underwriters, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01
per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 840,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 5,600,000 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all or
any part of the 840,000 shares of Common Stock subject to the option described
in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter called,
collectively, the "U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the sale by the Company and the Selling Shareholders of an
aggregate of 1,400,000 shares of Common Stock (the "Initial International
Securities") through arrangements with certain underwriters outside the United
States and Canada (the "International Managers") for which Merrill Lynch
International, Donaldson, Lufkin & Jenrette International, BancBoston Robertson
Stephens International Ltd and
1
<PAGE>
The Robinson-Humphrey Company, LLC are acting as lead managers (the "Lead
Managers") and the grant by the Company to the International Managers, acting
severally and not jointly, of an option to purchase all or any part of the
International Managers' pro rata portion of up to 210,000 additional shares of
Common Stock solely to cover over-allotments, if any (the "International Option
Securities" and, together with the U.S. Option Securities, the "Option
Securities"). The Initial International Securities and the International Option
Securities are hereinafter called the "International Securities". It is
understood that the Company is not obligated to sell and the U.S. Underwriters
are not obligated to purchase, any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities, and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a public
offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-88847) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated November 4, 1999 and preliminary
International Prospectus dated November 4, 1999, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all
2
<PAGE>
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
1. SECTION Representations and Warranties.
------------------------------
2.
(a) Representations and Warranties by the Company. The Company represents and
warrants to each U.S. Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b), hereof and agrees with each U.S. Underwriter, as
follows:
(i) Compliance with Registration Requirements. Each of the Registration
-----------------------------------------
Statement and any Rule 462(b) Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither of the Prospectuses nor
any amendments or supplements thereto (including the prospectus wrapper
relating to sales of Securities in Canada (except as it relates
specifically to matters of Canadian law)), at the time the Prospectuses or
any amendments or supplements thereto were issued and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If Rule 434 is used, the Company will comply
with the requirements of Rule 434 and the Prospectuses shall not be
"materially different", as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or the
U.S. Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through the
U.S. Representatives expressly for use in the Registration Statement or the
U.S. Prospectus.
The Company has filed a registration statement pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "1934 Act"), to
register the Common Stock, and such registration statement has been
declared effective.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied as to
form when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectuses to be delivered to the
Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the preliminary prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any U.S. Underwriter through the U.S. Representatives expressly for use
in the preliminary prospectus.
3
<PAGE>
(i) Independent Accountants. The accountants who certified the financial
-----------------------
statements and supporting schedules included in the Registration Statement
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(i) Financial Statements. The financial statements of the Company and its
--------------------
consolidated subsidiaries included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present fairly
in all material respects the financial position of the Company and its
consolidated Subsidiaries (as defined below) at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated Subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles (GAAP) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly, in all material respects, in
accordance with GAAP the information required to be stated therein. The
selected consolidated financial data, the summary consolidated financial
information, and the capitalization information included in the
Prospectuses present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of the
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses, other than the quarterly pro
forma information set forth in the Prospectuses under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. No financial statements are required to be included in
the Registration Statement that have not been so included.
(i) Subsidiary Financial Statements. The financial statements of the
-------------------------------
Company's Subsidiaries included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present fairly
in all material respects the financial position of such Subsidiaries and
their respective consolidated Subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of such
Subsidiaries and their respective consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved.
(i) No Material Adverse Change in Business. Since the respective dates as
---------------------------------------
of which information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(i) Good Standing of the Company. The Company has been duly incorporated
----------------------------
and is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to
result in a Material Adverse Effect.
<PAGE>
(i) Good Standing of Subsidiaries. Each subsidiary of the Company (other
-----------------------------
than subsidiaries in which the Company has only a minority ownership
interest) (each such subsidiary individually a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporaton in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to
result in a Material Adverse Effect; except for the pledge of the
Subsidiaries stock pursuant to the Credit Facility (as such term is defined
in the Registration Statement) or as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any subsidiary or other party. The only Subsidiaries of
the Company are the Subsidiaries listed on Exhibit 21 to the Registration
Statement. Except as described in the Prospectuses, or except as would not
be required to be described, the Company has no agreements, commitments, or
understandings with respect to acquiring the business, stock or material
assets, except those assets acquired in the ordinary course of business, of
any other person or entity.
(i) Capitalization. The authorized, issued and outstanding capital stock
--------------
of the Company is as set forth in the Prospectuses under the caption
"Capitalization", and, after giving effect to the offering will be as set
forth as "Pro Forma As Adjusted" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses, and except for 10,000,000 shares
of Common Stock registered pursuant to a shelf Registration Statement on
Form S-4 for use in future acquisitions), and the number of authorized,
issued and outstanding options and other rights is set forth in the
footnotes under such caption. To the knowledge of the Company, the shares
of issued and outstanding capital stock of the Company and its subsidiary
Consumer Financial Network, Inc., have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any security holder of the Company.
The shares of issued and outstanding capital stock of the Company have been
issued in compliance, in all material respects, with all federal and state
securities laws. Except as disclosed in the Prospectuses, there are no
outstanding options to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of the
Company's or its Subsidiaries' capital stock or any such options, rights,
convertible securities or obligations. The description of the Company's
stock option and purchase plans and the options or other rights granted and
exercised thereunder set forth in the Prospectuses accurately and fairly
describe, in all material respects, the information required to be shown
with respect to such plans, arrangements, options and rights.
(i) Authorization of Agreement. This Agreement and the International
--------------------------
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(i) Authorization and Description of Securities. The Securities to be
-------------------------------------------
purchased by the U.S. Underwriters and the International Managers from the
Company and the Selling Shareholders have been duly authorized for issuance
and sale to the U.S. Underwriters pursuant to this Agreement and the
International Managers pursuant to the International Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the International Purchase Agreement, respectively,
against payment of the consideration set forth herein and the International
Purchase
<PAGE>
Agreement, respectively, will be validly issued, fully paid and
non-assessable; the Common Stock conforms in all material respects to all
statements relating thereto contained in the Prospectuses and such
description conforms in all material respects to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; the
issuance of the Securities is not subject to preemptive rights, co-sale
rights, rights of first refusal or similar rights of any security holder of
the Company or other party and, except as disclosed in the Registration
Statement, the issuance of the Securities is not subject to registration
rights. The Securities will be sold free and clear of all liens,
encumbrances, equities or claims.
(i) Absence of Defaults and Conflicts. Neither the Company nor any of its
---------------------------------
Subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the International
Purchase Agreement and the consummation of the transactions contemplated in
this Agreement, the International Purchase Agreement and in the
Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in
the Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement and the International
Purchase Agreement have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to, the Agreements and
Instruments (except for such violations, conflicts, breaches or defaults or
liens, charges or encumbrances that would not reasonably be expected to
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
Subsidiary or any applicable law, statute binding upon, or, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations,
except for such defaults, which would not reasonably be expected to result
in a Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary.
(i) Absence of Labor Dispute. No labor dispute with the employees of the
------------------------
Company or any Subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
(i) Absence of Proceedings. There is no action, suit, proceeding, inquiry
----------------------
or investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any Subsidiary,
which is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which would reasonably be expected to result in a
Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and the
International Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
<PAGE>
routine litigation incidental to the business, would not reasonably be
expected to result in a Material Adverse Effect.
(i) Accuracy of Exhibits. There are no contracts or documents which are
--------------------
required to be described in the Registration Statement or the Prospectuses
or to be filed as exhibits thereto which have not been so described and
filed as required. The contracts so filed as exhibits are accurate and
complete, in all material respects; all such contracts are in full force
and effect on the date hereof, and neither the Company or any of its
Subsidiaries or, to the Company's best knowledge, any other party is in
breach of or default under any material provisions of such contracts the
result of which would reasonably be likely to result in a Material Adverse
Effect.
(i) Possession of Intellectual Property. The Company and its Subsidiaries
-----------------------------------
own or possess or have access to adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), United States trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them except
as would not reasonably be expected to have a Material Adverse Effect, and
neither the Company nor any of its Subsidiaries has received any notice or
is otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(i) Absence of Further Requirements. No filing with, or authorization,
-------------------------------
approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary or required
to be made or obtained by the Company for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the International Purchase Agreement, except (i) such as have
been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws or (ii)
such as have been described in the Registration Statement.
(i) Possession of Licenses and Permits. The Company and its Subsidiaries
----------------------------------
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not reasonably be expected to have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(i) Title to Property. The Company and its Subsidiaries have good and
-----------------
marketable title to all real property owned by the Company and its
Subsidiaries and valid title to all other properties and assets owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectuses or (b) would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on the value of such property or assets and would not reasonably be
expected to interfere with the use made and proposed to be made of such
property by the Company or any of its Subsidiaries; and all of the leases
<PAGE>
and subleases material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectuses, are in full
force and effect, except for such failure to be in force as would not
reasonably be expected to have a Material Adverse Effect and neither the
Company nor any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(i) Tax Returns and Payment of Taxes. The Company and its Subsidiaries
--------------------------------
have timely filed all Federal, state, local and foreign tax returns that
are required to be filed or have duly requested extensions thereof and all
such tax returns are true, correct and complete, except to the extent that
any failure to file or request an extension, or any incorrectness would not
reasonably be expected to result in a Material Adverse Effect. The Company
and its Subsidiaries have timely paid all taxes shown as due on such filed
tax returns (including any related assessments, fines or penalties), except
to the extent that any such taxes are being contested in good faith and by
appropriate proceedings, or to the extent that any failure to pay would not
reasonably be expected to result in a Material Adverse Effect; and adequate
charges, accruals and reserves have been provided for in the financial
statements referred to in Section 1(a)(iii) above in accordance with GAAP
in respect of all Federal, state, local and foreign taxes for all periods
as to which the tax liability of the Company or any of its Subsidiaries has
not been finally determined or remains open to examination by applicable
taxing authorities. The Company is not a "United States real property
holding corporation" within the meaning of Section 897(c)(3) of the
Internal Revenue Code of 1986, as amended.
(i) Insurance. The Company and each of its Subsidiaries are insured by
---------
insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are prudent and customary
in the businesses in which they are engaged; and neither the Company nor
any of its Subsidiaries has any reason to believe that any of them will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business except where the failure to renew or
maintain such coverage would not reasonably be expected to result in a
Material Adverse Effect. The officers and directors of the Company are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for
officers and directors liability insurance of a public company and as would
cover claims which could be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will not be
able to renew its existing directors and officers liability insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to cover its officers and
directors.
(i) No Stabilization or Manipulation. Neither the Company nor, to the
--------------------------------
knowledge of the Company, any of its directors, officers or affiliates has
taken nor will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M
under the 1934 Act.
(i) Investment Company Act. The Company is not, and upon the issuance and
----------------------
sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectuses, will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(i) Environmental Laws. Except as described in the Registration Statement
------------------
and except as would not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, (A) neither the Company nor any of
its Subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or
<PAGE>
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(i) Registration Rights. Except as described in the Prospectuses, there
-------------------
are no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(i) Certain Transactions. Except as disclosed in the Prospectuses or
--------------------
except as not reasonably required to be disclosed in the Prospectuses,
there are no outstanding loans, advances, or guarantees of indebtedness by
the Company to or for the benefit of any of the executive officers or
directors of the Company or any of the members of the families of any of
them.
(i) Accounting and Other Controls. The Company has established for itself
-----------------------------
and each Subsidiary and, with respect to future acquisitions, will
establish, a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions were, are or, in the case of
such future acquisitions, will be executed in accordance with management's
general or specific authorization; (ii) transactions were, are or, in the
case of such future acquisitions, will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is or, in the case of such future acquisitions, will
be permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets was, is or,
in the case of such future acquisitions, will be compared with existing
assets at reasonable intervals and appropriate action was, is or, in the
case of such future acquisitions, will be taken with respect to any
differences.
(i) Regulations. The Company and CFN have not been advised, and have no
-----------
reason to believe, that either they or any of their subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, all applicable local, state and federal laws
and regulations; except where failure to be so in compliance would not
reasonably be expected to result in a Material Adverse Effect.
(a) Representations and Warranties by the Selling Shareholders . Each
Selling Shareholder (except in the case of Section 1(b)(i)(1) hereto, only each
such Selling Shareholder listed on Schedule E hereto) severally represents and
warrants to each Underwriter as of the date hereof, and as of the Closing Time,
and agrees with each Underwriter, as follows:
(b)
(i) Accurate Disclosure.
-------------------
(1) In the case of each such Selling Shareholder listed on
Schedule E hereto, to the best knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in
<PAGE>
Section 1(a) hereof are true and correct; such Selling Shareholder has reviewed
and is familiar with the Registration Statement and the Prospectus and neither
the Prospectus nor any amendments or supplements thereto includes any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; such Selling Shareholder is not prompted
to sell the Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary which is not set forth in
the Prospectus.
(2) In the case of each such Selling Shareholder not listed on
Schedule E hereto, the written information furnished by such Selling Shareholder
to the Company expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(i) Authorization of Agreements. Each Selling Shareholder has the full
---------------------------
right, power and authority to enter into this Agreement and a Custody
Agreement and Power of Attorney (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by such
Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a material breach of, or material default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder or
any property or assets of such Selling Shareholder pursuant to any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound,
or to which any of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws or other organizational instrument of such Selling
Shareholder, if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(i) Good and Marketable Title. Such Selling Shareholder has and will at
-------------------------
the Closing Time have good and marketable title to the Securities to be
sold by such Selling Shareholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(i) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney and Custody
Agreement with U. Bertram Ellis, Jr. and M. Wayne Boylston as attorneys-in-
fact (each, an "Attorney-in-Fact") and SunTrust Bank, Atlanta, as
depositary (the "Depositary"); the Depositary is authorized to deliver the
Securities to be sold by such Selling Shareholder hereunder and to accept
payment therefor; and the Attorney-in-Fact is authorized to execute and
deliver this Agreement and the certificate referred to in Section 5(f) or
that may be required pursuant to Section 5(n) on behalf of such Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Shareholder hereunder, to determine
the purchase price to be paid by the Underwriters to such Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the delivery
of the Securities to be sold by such Selling Shareholder hereunder, to
accept payment therefor, and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
<PAGE>
(i) Absence of Manipulation. Such Selling Shareholder has not taken, and
-----------------------
will not take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(i) Restriction on Sale of Securities. During a period of 90 days from
---------------------------------
the date of the Prospectus, such Selling Shareholder will not, without the
prior written consent of Merrill Lynch, directly or indirectly, (i) offer
to sell, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant for the sale of, or otherwise transfer or dispose of any share
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, whether owned as of the date hereof or
hereafter acquired by such Selling Shareholder or with respect to which
such Selling Shareholder has or hereafter acquires the power of
disposition, or file or cause to be filed any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of
the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) transactions by any person other than the Company relating to
registered shares of Common Stock or other securities acquired in open
market transactions or (b) transfers of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock to a
member of such Selling Shareholder's immediate family or to a trust of
which such Selling Shareholder or an immediate family member is the
beneficiary (either one a "Transferee") provided that upon any such
transfer, the Transferee shall sign a letter substantially similar to the
letter agreement set forth as Exhibit C hereto agreeing not to sell, grant
any option to purchase, or otherwise transfer or dispose of any such Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock for the remainder of the above-referenced 90-day period.
(i) Certificates Suitable for Transfer. Certificates for all of the
----------------------------------
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Depositary with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(i) No Association with NASD. Neither such Selling Stockholder nor any of
------------------------
its affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has any
other association with (within the meaning of Article I, Section 1(m) of
the By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(a) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the
<PAGE>
Representatives or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby.
1. SECTION Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
2.
(a) Initial Securities. On the basis of the representations and warranties
------------------
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agrees to sell
to each U.S. Underwriter, severally and not jointly, and each U.S. Underwriter,
severally and not jointly, agrees to purchase from the Company and each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial U.S. Securities set forth in Schedule B opposite the name
of the Company or such Selling Shareholder, as the case may
be, which the number of the Initial Securities set forth in Schedule A opposite
the name of the Underwriter, plus any additional number of Initial U.S.
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject in each case, to such adjustments among the Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(a) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to each U.S. Underwriter,
severally and not jointly, to purchase up to an additional 840,000 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial U.S. Securities but not
payable on the U.S. Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S. Securities
upon notice by the Global Coordinator to the Company setting forth the number of
U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "Date of Delivery") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the U.S. Option Securities,
each of the U.S. Underwriters, acting severally and not jointly, will purchase
that proportion of the total number of U.S. Option Securities then being
purchased which the number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter bears to the total number of Initial
U.S. Securities, subject in each case to such adjustments as the Global
Coordinator in its discretion shall make to eliminate any sales or purchases of
fractional shares.
(b)
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Minkin
& Snyder, One Buckhead Plaza, 3860 Peachtree Road, Suite 1100, Atlanta, Georgia
30318, or at such other place as shall be agreed upon by the Global Coordinator
and the Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator and the
Company and the Selling Shareholders (such time and date of payment and delivery
being herein called "Closing Time").
(d)
(e) In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the purchase price
for, and delivery of certificates for, such U.S. Option Securities shall be made
at the above-mentioned offices, or at such other place as shall be agreed upon
by the Global Coordinator and the Company and the Selling Shareholders, on each
Date of Delivery as specified in the notice from the Global Coordinator to the
Company and the Selling Shareholders.
(f)
(g) Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to the bank accounts designated by
the Company and the Depositary pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the U.S.
<PAGE>
Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(h)
(i) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
1. SECTION Covenants of the Company. The Company covenants with each
------------------------
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company, after
consultation with the U.S. Representatives, will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company, after
consultation with the U.S. Representatives, will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b)
(c) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the U.S. Underwriters shall reasonably object.
(d)
(e) Delivery of Registration Statements. The Company has furnished or will
deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
<PAGE>
(f)
(g) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably
request. The U.S. Prospectus and any amendments or supplements thereto furnished
to the U.S. Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(h)
(i) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the U.S. Underwriters or
for the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably request.
(j)
<PAGE>
(k) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(l) Rule 158. The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(m)
(n) Use of Proceeds. The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectuses under
"Use of Proceeds".
(o)
(p) Listing. The Company will use its best efforts to effect and maintain the
quotation of the Securities on the Nasdaq National Market or the listing of the
Securities on the New York Stock Exchange and will file with the Nasdaq National
Market or the New York Stock Exchange, as applicable, all documents and notices
required by such exchange of companies that have securities that are traded in
the over-the-counter market and quotations for which are reported by the Nasdaq
National Market or which are listed on the New York Stock Exchange, as the case
may be. The parties understand that this covenant shall terminate upon a "going
private transaction" or the sale or merger of the Company or similar
transaction.
(q)
(r) Restriction on Sale of Securities . During a period of 90 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, directly or indirectly, (i) offer to sell,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise transfer or dispose of any share of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
of itself or any Subsidiary or file any registration statement under the 1933
Act with respect to any of the foregoing, or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or under the International Purchase Agreement, (B) any shares of
Common Stock issued by the Company upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof and referred to in
the Prospectuses, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans or other stock
option plans of the Company referred to in the Prospectuses, (D) the filing of
Registration Statements on Form S-4 covering up to 10,000,000 shares of Common
Stock to be issued by the Company, or (E) the filing of a Registration Statement
on Form S-8 covering up to 41,000,000 shares of Common Stock granted under the
Company's stock option plans, plus additional shares to be registered under the
Tessera Stock Option Plan to be assumed by the Company.
(s)
(t) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(u)
(v) Compliance with Rule 463. The Company will file with the Commission such
reports and report the use of proceeds of the sale of the Securities as may be
required pursuant to Rule 463 of the 1933 Act Regulations.
<PAGE>
(i) SECTION Payment of Expenses. Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, the printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, the preparation, issuance and delivery of the certificates
for the Securities to the Underwriters, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Securities to the Underwriters and the transfer of the Securities between
the U.S. Underwriters and the International Managers, the fees and disbursements
of the Company's counsel, accountants and other advisors, the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, the preparation and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, the
fees and expenses of any transfer agent or registrar for the Securities, the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, the transportation and other expenses incurred by the Company in
connection with presentations to prospective purchasers of the Securities and
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(a) Expenses of the Selling Shareholders. The Selling Shareholders, severally
and not jointly, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) the fees and disbursements of
their respective counsel and accountants.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company and the Selling Shareholders shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
(c)
(d) Allocation of Expenses. The provisions of this Section shall not affect any
agreement that the Company and the Selling Shareholders may make for the sharing
of such costs and expenses.
1. SECTION Conditions of U.S. Underwriters' Obligations. The obligations
--------------------------------------------
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b)
<PAGE>
(c) Opinions of Counsel for Company. At Closing Time, the U.S. Representatives
shall have received the favorable opinion, dated as of Closing Time, of (i)
Minkin & Snyder, a Professional Corporation, counsel for the Company, (ii)
Morris, Manning & Martin, L.L.P., special counsel for the Company, (iii) Hudson
Cook, LLP, special counsel for the Company and (iv) Goodwin, Procter & Hoar,
LLP, special counsel for the Company, in each case in form and substance
reasonably satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of each such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibits A-1 to A-4 hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably request.
(d)
(e) Opinion of Counsel for the Selling Shareholders. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of counsel for each of the Selling Shareholders, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letters for each of the other Underwriters to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(f)
(g) Opinion of Counsel for U.S. Underwriters. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters, in customary form and covering such matters as
the U.S. Underwriters may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the U.S. Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(h)
(i) Officers' Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Representatives shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(j)
(k) Certificate of Selling Shareholders. At Closing Time, the Representatives
shall have received a certificate of an Attorney-in-Fact on behalf of each
Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(l)
(m) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and substance
reasonably satisfactory to the U.S. Representatives, together with signed or
reproduced copies of such letter for each of the other U.S. Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectuses.
(n)
(o) Bring-down Comfort Letters. At Closing Time, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to
the effect that it reaffirms the statements made
<PAGE>
in the letter furnished pursuant to subsection (g) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to Closing Time.
(p)
(q) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(r)
<PAGE>
(s) No Objection. The NASD has confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(t)
(u) Lock-up Agreements. At the date of this Agreement, the U.S. Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the stockholders and option holders of any securities of the Company
and its Subsidiaries listed on Schedule D hereto.
(v)
(w) Purchase of Initial International Securities. Contemporaneously with the
purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(x)
(y) Conditions to Purchase of U.S. Option Securities. In the event that the
U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company and the Selling Shareholders contained herein and
the statements in any certificates furnished by the Company or any Subsidiary of
the Company and the Selling Shareholders hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the U.S.
Representatives shall have received:
(z)
(i) Officers' Certificate. A certificate, dated such Date of Delivery, of
---------------------
the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(i) Opinions of Counsel for Company. The favorable opinion of each of (a)
-------------------------------
Minkin & Snyder, a Professional Corporation, counsel for the Company, (b)
Morris, Manning & Martin, L.L.P., special counsel for the Company, (c)
Hudson Cook, LLP, special counsel for the Company and (d) Goodwin, Procter
& Hoar, LLP, special counsel for the Company, in each case in form and
substance reasonably satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(i) Opinion of Counsel for U.S. Underwriters. The favorable opinion of
----------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(i) Bring-down Comfort Letters. A letter from PricewaterhouseCoopers LLP
--------------------------
in form and substance reasonably satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the U.S. Representatives pursuant to
Section 5(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(a) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the U.S. Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the U.S. Representatives and counsel for
the U.S. Underwriters.
(b)
(c) Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of U.S. Option Securities on a
Date of Delivery which is after the Closing Time, the obligations of the several
U.S. Underwriters
<PAGE>
to purchase the relevant Option Securities, may be terminated by the U.S.
Representatives by notice to the Company at any time at or prior to Closing Time
or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
1. SECTION Indemnification.
---------------
2.
(a) Indemnification of U.S. Underwriters by the Company and Certain Selling
Shareholders. The Company and the Selling Shareholders listed on Schedule E
hereto, jointly and severally, agree to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company and the counsel for the Selling Shareholders; and
(i) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this indemnity agreement shall not apply to
--------------- -------
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Company by any U.S. Underwriter through the U.S. Representatives
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the U.S. Prospectus (or any
amendment or supplement thereto); provided, however, that no such Selling
-------- -------
Shareholder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Selling Shareholder from the sale
of Securities pursuant to this Agreement; and provided further that the
-------- -------
Company and such Selling Shareholders will not be liable to any U.S.
Underwriter with respect to any U.S. Prospectus to the extent that the
Company or such Selling Shareholders shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the
fact that such U.S. Underwriter, in contravention of a requirement of this
Agreement or applicable law, sold Securities to a person to whom such U.S.
Underwriter failed to send or give, at or prior to the Closing Date, a copy
of the Final Prospectus, as then amended or supplemented if: (i) the
Company has previously furnished copies thereof (sufficiently in advance of
the Closing Date to allow for distribution by the Closing Date) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter resulted from an untrue statement or omission of a material
fact contained in or omitted from the Preliminary Prospectus which was
corrected in the Final Prospectus as, if applicable, amended or
supplemented prior to the Closing Date
<PAGE>
and such Final Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person and (ii) such failure to
give or send such Final Prospectus by the Closing Date to the party or
parties asserting such loss, liability, claim, damage or expense would have
constituted a defense to the claim asserted by such person.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of a U.S.
Underwriter or who controls an underwriter within the meaning of Section 15
of 1933 Act or Section 20 of the 1934 Act and who, at the date of this
Agreement, is a director or officer of the Company or controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, such indemnity agreement is subject to the undertaking of the Company
in the Registration Statement under Item 14 thereof.
(a) Indemnification of U.S. Underwriters by Selling Shareholders Not Listed on
Schedule E hereto. Each Selling Shareholder (other than those Selling
Shareholders listed on Schedule E hereto, which shareholders are subject to the
provisions of Section 6(a) hereof) severally, but not jointly, agrees to
indemnify and hold harmless each U.S. Underwriter and the other Selling
Shareholders, and each of their respective directors and officers, and each
person, if any, who controls any U.S. Underwriter or any other Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Selling Shareholder
furnished to the Company by such Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto); provided,
--------
however, that no such Selling Shareholder shall be liable for any claims
- -------
hereunder in excess of the amount of net proceeds received by such Selling
Shareholder from the sale of Securities pursuant to this Agreement.
(b)
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto).
(d)
(e) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel
<PAGE>
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(f)
(g) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(h)
(i) Order of Priority for Indemnification. The U.S. Underwriters shall seek
indemnification to which they are entitled under Sections 6(a) and 6(b) hereof
or contribution under Section 7 hereof first from the Company. In the event that
the U.S. Underwriters are unable (or reasonably believe they will be unable to)
obtain such indemnification or contribution from the Company, the U.S.
Underwriters may then seek indemnification or contribution from the Selling
Shareholders.
(j)
(k) Other Agreements with Respect to Indemnification. The provisions of this
Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
1. SECTION Contribution. If the indemnification provided for in Section
------------
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the U.S. Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the U.S. Underwriters on the other
hand in connection with the statements or omissions, which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the U.S. Underwriters on the other hand in connection with
the offering of the U.S. Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the U.S. Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders and the total
underwriting discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate public offering
price of the U.S. Securities as set forth on such cover.
<PAGE>
The relative fault of the Company and the Selling Shareholders on the one
hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Selling Shareholders
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the U.S. Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any reasonable legal or other expenses
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (x) no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission and (y) no
Selling Shareholder shall be required to contribute any amount in excess of such
Selling Shareholder's net proceeds (after deducting the underwriting discount,
but before deducting expenses) from the sale of Securities pursuant to this
Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or such Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
1. SECTION Representations, Warranties and Agreements to Survive Delivery.All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any U.S. Underwriter or controlling person, or by or on behalf of the Company or
the Selling Shareholders, and shall survive delivery of the Securities to the
U.S. Underwriters.
<PAGE>
1. SECTION Termination of Agreement.
------------------------
2.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the U.S. Representatives, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(a) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
1. SECTION Default by One or More of the U.S. Underwriters. If one or
-----------------------------------------------
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of
U.S. Securities to be purchased on such date, each of the non-defaulting U.S.
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting U.S.
Underwriters, or
(b)
(c) if the number of Defaulted Securities exceeds 10% of the number of U.S.
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the U.S.
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting U.S. Underwriter.
(d)
(e) No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
(f)
(g) In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
and any Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or
<PAGE>
arrangements. As used herein, the term "U.S. Underwriter" includes any person
substituted for a U.S. Underwriter under this Section 10.
1. SECTION Default by One or More of the Selling Shareholders or the Company.
------------------------------------------------------------------
2.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the non-
defaulting Selling Shareholders, either (a) terminate this Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the Representatives, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(a) If the Company shall fail at Closing Time or at the Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any nondefaulting
party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
1. SECTION Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at 3300 Hillview
Avenue, Suite 150, Palo Alto, California 94304-1203, attention of Jack Weingart,
with a copy to Gregory C. Smith, Skadden, Arps, Slate, Meagher & Flom LLP, 525
University Avenue, Palo Alto, California, 94301; and notices to the Company
shall be directed to it at 1900 Emery Street, N.W., Atlanta, Georgia 30318,
attention of M. Wayne Boylston with copies to James S. Altenbach, Minkin &
Snyder, One Buckhead Plaza, 3060 Peachtree Road, Suite 1100, Atlanta, Georgia
30305; notices to the Selling Shareholders shall be directed to the Company at
1900 Emery Street N.W., Atlanta, Georgia 30318, attention of M. Wayne Boylston,
with copies to James S. Altenbach, Minkin & Snyder, One Buckhead Plaza, 3060
Peachtree Road, Suite 1100, Atlanta, Georgia 30305.
1. SECTION Parties. This Agreement shall each inure to the benefit of and be
-------
binding upon the U.S. Underwriters, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
U.S. Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any U.S. Underwriter shall be
deemed to be a successor by reason merely of such purchase.
1. SECTION GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
<PAGE>
1. SECTION Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the U.S. Underwriters, the
Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
IXL ENTERPRISES, INC.
By
Name:
Title:
By
As Attorney-in-Fact on behalf of the
Selling Shareholders named in Schedule B
hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
BANCBOSTON ROBERTSON STEPHENS INC.
FIRST UNION SECURITIES, INC.
THE ROBINSON-HUMPHREY COMPANY, LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
Name:
Title:
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
<PAGE>
SCHEDULE A
Number of
Initial U.S.
Name of Underwriter Securities
------------------- ------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated 1,540,000
Donaldson, Lufkin & Jenrette Securities Corporation 1,540,000
BancBoston Robertson Stephens Inc. 660,000
First Union Securities, Inc. 330,000
The Robinson-Humphrey Company, LLC 330,000
Hambrecht & Quist LLC 150,000
ING Baring Furman Selz LLC 150,000
SG Cowen Securities Corporation 150,000
J.C. Bradford & Co. 150,000
Dain Rauscher Incorporated 150,000
First Albany Corporation 150,000
Volpe Brown Whelan & Company, LLC 150,000
Wit Capital Corporation 150,000
---------
Total: 5,600,000
1
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Number of Maximum Number
Initial U.S. of U.S.
Securities Option
to be Sold Securities to
Be Sold
------------------- ----------------
<S> <C> <C>
IXL ENTERPRISES, INC. 1,600,000 840,000
SELLING SHAREHOLDERS
General Capital Assurance Company 50,370 --
GE Capital Equity Investments, Inc. 402,960 --
General Electric Pension Trust 100,740 --
Kevin M. Wall 402,962 --
James R. Rocco 241,775 --
Barry T. Sikes 89,094 --
@radical.media, Inc. 805 --
Karen Booth Adams 58,623 --
Karen Booth Adams Irrevocable Trust 40,296 --
James S. Altenbach 20,148 --
Steven P. Amedio 6,044 --
Jay Amos 2,014 --
Claire Lewis Arnold 4,030 --
Ashish Bahl 110,813 --
Steven C. Baum 74,547 --
Jens Bley 4,835 --
Robert Bowman 26,192 --
Robert Burk (Trustee of the Burk Family Trust 1,482 --
dated 8/17/82)
Burton Technology Partners, Ltd. 2,080 --
Eric Butz 4,030 --
David M. Carroll 4,030 --
Steven E. Chamberlain 1,007 --
Stefan Chopin 20,148 --
David E. Clauson 40,296 --
Steven K. Conine 40,747 --
Barbara B. Cook 20,148 --
Cox Technology Investments, Inc. 80,592 --
Larry Culbertson 18,133 --
Josiah Cushing 1,029 --
Richard M. Cyert (Estate of) 10,880 --
Guy Davidson 30,221 --
Kevin Davis 3,042 --
Burton F. Dodd 2,014 --
Anne Nancy Donohue 1,612 --
David E. Easterly 1,007 --
</TABLE>
1
<PAGE>
Dennis S. Ferraro 2,014 --
Finn Partners 80,592 --
William Stephen Floyd 161,183 --
Mary M. Fowlkes 53,726 --
Joelle G. Fox 4,271 --
Eric H. Freedman 40,296 --
James P. Ganley 4,835 --
Robert Gear 605 --
Michael Gilles 1,834 --
Juergen Goersch 6,094 --
Henry Goldberg 1,612 --
Glenn Golenberg 6,044 --
Jeffrey R. and Pamela Gordon, tenants by the 12,089
entirety --
William A. Grana, Jr. 806 --
Paul Grand 35,560 --
David Greeley 4,586 --
Joshua Greer 46,458 --
Guren Family Trust 1,612 --
Lisa L. Hendricks 69,873 --
Mark W. Hennessy 2,821 --
Peter R. Hennessy 2,418 --
Michael Hettwer 60,444 --
Jeffrey S. Hosley 242 --
Frank W. Hulse 998 --
Investar Burgeon Venture Capital, Inc. 4,766 --
Stephen P. Jackson 7,311 --
Mark Jacobstein 41,004 --
Jeffrey Janer 41,279 --
Teresa Joel 32,237 --
Kurt A. Keilhacker 6,206 --
Robert H. Kriebel (Estate of) 5,722 --
William A. Lackey 2,014 --
William M. Lackey 6,044 --
John Laurence 4,869 --
Lazarus Family Investments, LLC 806 --
M.R.W. Ventures, LLC 4,433 --
Norman S. Matthews 16,118 --
Robert H. McEver 605 --
John P. McEvoy 4,030 --
John F. McGillicuddy 14,103 --
Jacob McGowan 13,449 --
Mellon Ventures II, L.P. 120,888 --
2
<PAGE>
William Melton 47,661 --
MKA Partners, L.P. 18,133 --
Colin Morris 2,014 --
Mario M. Morino Trust 8,756 --
Scott Murphy 39,490 --
Richard Nailling 78,980 --
Mathias Oelmann 3,022 --
Robert O'Leary 1,007 --
Robert Ortiz 8,059 --
Manfred Ottenbreit 6,044 --
Pete T. Patterson 806 --
N. Blake Patton 2,216 --
Lisa Peddy 20,148 --
Stephanie A.H. Petersen 665 --
Randall M. Pipp 26,346 --
Michel Rapoport 4,030 --
John Rocco 2,821 --
David M. Roderick 4,030 --
James V. Sandry 10,074 --
Derek Scanlon 806 --
Michael E. Schaefer 12,089 --
F. Blair Schmidt-Fellner 2,152 --
Janet E. Schoff 8,059 --
Michael Schwartz 4,030 --
Niraj S. Shah 40,296 --
Mary Jane Shapiro 5,822 --
Melissa Shenkin 4,916 --
Stephen D. Silbert 5,037 --
Gary E. Snyder 1,612 --
Mark Swanson 40,296 --
Thomson U.S. Inc. 434,058 --
John Tierney 8,059 --
Gregory Waldbaum 7,899 --
Leonard N. Waldbaum 5,762 --
Scott Walker 4,030 --
WebListing Corporation Profit Sharing Plan 23,291 --
Weissmann, Wolff, Bergman, Coleman & Silverman, LLP 12,874 --
James L. Whims 6,206 --
William C. Whitley 72,613 --
Armistead Whitney 377 --
Garland Wong 79,041 --
3
<PAGE>
Harold B. Wright 4,030 --
Wyler Irrevocable Trust FBO Molly Wyler, Emily
Wyler, Talli Wyler 4,030 --
David Wyler 80,592 --
Charles Zug 2,078 --
---------- -------
4,000,000 0
Total 5,600,000 840,000
4
<PAGE>
SCHEDULE C
IXL ENTERPRISES, INC.
5,600,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The public offering price per share for the Securities, determined as
provided in said Section 2, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $[ ], being an amount equal to the public
offering price set forth above less $0.[ ] per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
1
<PAGE>
SCHEDULE D
Persons and entities
subject to lock-up
"@radical.media, Inc."
Adams, Karen Booth
Adams, Karen Booth Irrevocable Trust
Altenbach, James S.
ALTRU Trust, an Irrevocable Trust
Amedio, Steven P.
Amos, Jay
Arnold, Claire Lewis
Bahl, Ashish
Baum, Steven C.
Bley, Jens
Bowman, Robert
Burk, Robert (Trustee of the Burk Family
Trust dated 8/17/82)
Butz, Eric
Campbell, Gordon A.
Carroll, David M.
Chamberlain, Steven E.
Clauson, David
Conine, Steven K.
Cox Technology Investments, Inc.
Cushing, Josiah
Cyert, Richard M. (Estate of)
Davidson, C.L., III
Davidson, Guy
Davis, Kevin
Davis, Norwood H., III
Dodd, Burton F.
Easterly, David E.
Ellis, Robert
Finn Partners
Flatiron Associates, LLC
Flatiron Fund 1998/99, LLC
Flatiron Fund, LLC
Floyd, William Stephen
Fowlkes, Mary M.
Fox, Joelle G.
Freedman, Eric H.
Fuchs, Michael
Ganley, James P.
Gear, Robert
Golenberg, Glenn
Golenberg, Glenn Inter Vivos Trust dated
4/27/93 - Glenn Golenberg, Trustee
Gordon, Jeffrey R.
Gordon, Jeffrey R. and Pamela, tenants by
the entirety
Grand, Paul
Greeley, David
Greer, Joshua
Greystone Capital Partners, I.L.P.
Guren Family Trust
Hardesty, Patricia (Trust)
Hendricks, Lisa L.
Hennessy Cadillac, Inc.
Hennessy, Mark W.
Hennessy, Peter R.
Hennessy, Stephen R.
Henritze, Fred H.
Hodgson, Thom J.
Investar Burgeon Venture Capital, Inc.
Jacobstein, Mark
Janer, Jeffrey
Joel, Teresa
Keilhacker, Kurt A.
Kraft Enterprises Ltd.
Kriebel, Robert H. (Estate of)
Lackey, Wiliam A.
Lamon, Hollis M.
Laurence, John
Love Family Partnership - VI, LLP
Marks, Marilyn R.
McEver, Robert H.
McEvoy, John P.
McGillicuddy, John F.
Melton, William
MKA Partners, L.P.
Morris, Colin
Murphy, Scott
Nailing, Richard
Next Century Communications Corp.
Oelmann, Matthias
O'Leary, Robert
Ortiz, Daniella (Trust)
Ortiz, Justin (Trust)
Ortiz, Robert
Ottenbreit, Manfred
Parent, Kyle
Peddy, Lisa
Petersen, Stephanie A.H.
Pipp, Randall M.
Rapoport, Michel
Rocco, Anthony (Trust)
Roco, Christopher (Trust)
1
<PAGE>
Rocco, James
Rocco, James (Trust)
Rocco, Marge (Trust)
Rocco, Mario (Trust)
Rocco, Patricia Ann (Trust)
Roderick, David M.
Scanlon, Derek
Schaefer, Michael E.
Schmidt-Fellner, F. Blair
Schoff, Janet E.
Schwartz, Michael
Shah, Niraj S.
Shapiro, Mary Jane
Shenkin, Melissa
Sikes, Barry
Silbert, Stephn D.
Stern, Michael J.
Swanson, Mark
Thompson, Timothy E.
Thomson U.S. Inc.
Tierney, John
Waldbaum, Gregory
Walker, Scott
Wall 1999 Family Trust
Weller, Kathryn Arendall
Whitley, William C.
Wong, Garland
Wright, Harold B.
Wyler Irrevocable Trust FBO Molly Wyler,
Emily Wyler, Talli Wyler
Wyler, David
Zug, Charles
<PAGE>
SCHEDULE E
List of Selling Shareholders who
are Executive Officers of the Company
David E. Clauson
James R. Rocco
Barry T. Sikes
Kevin M. Wall
1
<PAGE>
Exhibit A-1
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(i) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted
and as described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreement.
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule A
attached hereto which to our knowledge is each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(i) On December 31, 1998 and Pro Forma for issuances of capital stock
occurring between January 1, 1999 and the Closing, the authorized, issued
and outstanding capital stock of the Company was and is as described in the
Prospectuses under the caption entitled "Capitalization" and, after giving
effect to the offering will be as described as Pro Forma as Adjusted under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements, or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses, and except for 10,000,000 shares of Common Stock
registered pursuant to Registration Statements on Form S-4 for use in
future acquisitions), and the number of authorized, issued and outstanding
options and other rights to acquire capital stock is as described under
such caption. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and to our knowledge none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. Except as
disclosed in the Prospectuses, to our knowledge, there are no outstanding
options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or, any
contracts or commitments to issue or sell, shares of the Company's or its
Subsidiaries' capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock option
and purchase plans, and the options or other rights granted and exercised
thereunder, set forth in the Prospectuses accurately and fairly presents in
all material respects the information required to be shown with respect to
such plans, options and rights.
(i) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder. The Common Stock conforms in all material respects as to
legal matters to all statements relating thereto contained in the
Prospectuses and such descriptions conform to the rights set forth in the
instruments defining the same.
(i) To our knowledge, the sale of the Securities by the Company and the
sale of the Securities by the Selling Shareholders is not subject to
preemptive rights, co-sale rights, rights of first refusal or similar
1
<PAGE>
rights of any security holder of the Company, and except as disclosed in
the Prospectuses, is not subject to registration rights. The Securities
will be sold free and clear of all liens, encumbrances, equities or claims.
(i) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction listed on Schedule A attached hereto
which to our knowledge is each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not reasonably be expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to our knowledge, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; to our knowledge none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. To our knowledge, except as described in
the Prospectuses or except as not required to be disclosed in the
Prospectuses, the Company has no written agreement, commitment or
understanding with respect to acquiring the business, stock, or material
assets, except assets acquired in the ordinary course of business, of any
other person or entity.
(i) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses and each amendment or supplement to the
Registration Statement and Prospectuses as of their respective effective or
issue dates (other than the financial statements and notes thereto, other
financial information and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(i) If Rule 434 has been relied upon, the Prospectuses were not
"materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(i) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the General
Corporation Law of the State of Delaware, with any applicable requirements
of the charter and by-laws of the Company and the requirements of the
Nasdaq National Market.
(i) To our knowledge, other than as set forth in the Prospectuses, there
is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any Subsidiary is a party, or to
which the property of the Company or any Subsidiary is subject, before or
brought by any court or governmental agency or body (domestic or foreign),
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the
2
<PAGE>
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the Company
of its obligations thereunder.
(i) The information in the Prospectuses under (A) "Certain Transactions,"
and "Management" and (B) in the Registration Statement under Item 14, to
the extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(i) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
(i) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its Subsidiaries are a party are accurate
in all material respects; to our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto are correct in
all material respects.
(i) To our knowledge, neither the Company nor any Subsidiary is in
violation of its charter or by-laws.
(i) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any federal or Georgia court or
governmental authority or agency, (other than under the 1933 Act and the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations which have
been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we need express no opinion) is necessary
or required to be obtained by the Company or any of its Subsidiaries in
connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance or sale of the Securities
to the Underwriters.
(i) The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument listed on the Exhibit Index to the S-1 Registration Statement,
to which the Company or any Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not reasonably be
expected to have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any Subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or material decree, known to us, of the General Corporation Law
of the State of Delaware, any Georgia or United States federal court,
government or government instrumentality having jurisdiction over the
Company or any Subsidiary or any of their respective properties, assets or
operations.
(i) To our knowledge, except as described in the Prospectuses, there are
no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
3
<PAGE>
(i) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(i) CFN has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and
has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectuses, except to the limited extent stated in paragraph
(iv), the second sentence of paragraph (v), paragraph (xiv) and the first clause
of paragraph (xvi) above. In the course of our review and discussion of the
contents of the Registration Statement and the Prospectuses with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to our attention
which cause us to believe that the Registration Statement (other than the
financial statements and notes thereto, other financial information and
supporting schedules contained therein or omitted therefrom, as to which we
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectuses (other than the financial statements and
notes thereto, other financial information and supporting schedules contained
therein or omitted therefrom, as to which we express no belief), as of their
dates and as of the date hereof, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
4
<PAGE>
Exhibit A-2
FORM OF OPINION OF MORRIS,
MANNING & MARTIN, L.L.P.
TO BE DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation," only
insofar as those statements constitute a summary of principles of insurance
laws or regulations applicable to the CFN Agency, Inc. business fairly and
accurately represent the material insurance laws and regulations applicable
to the operation of CFN Agency, Inc. business and, to the best of our
actual knowledge, there are no state insurance statutes or regulations
material to the operation of CFN Agency, Inc. business that are required to
be described in the Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that the
statements made in the Prospectuses under the captions "Risk Factors-
Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation" at the
time the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, only insofar as those statements constitute a summary of
principles of state insurance laws or regulations to the CFN Agency, Inc.
business.
1
<PAGE>
Exhibit A-3
FORM OF OPINION OF
HUDSON COOK, LLP TO BE
DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation," insofar as those statements constitute a summary of
principles of auto loan broker laws or regulations applicable to the
business of CFN, fairly and accurately represent the material auto
loan broker laws and regulations applicable to the operation CFN's
business and to the best of our knowledge, there are no statutes or
regulations material to the operation of CFN's auto loan broker
business that are required to be described in the Prospectuses that
are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that
the statements made in the Prospectuses under the captions "Risk
Factors-- Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation," at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as those statements
constitute a summary of principles of auto loan broker laws or
regulations applicable to the business of CFN.
1
<PAGE>
Exhibit A-4
FORM OF OPINION OF
GOODWIN, PROCTER & HOAR, LLP
DELIVERED PURSUANT TO
SECTION 5(b)
(i) The statements made under "Risk Factors--Risks Relating to Our CFN
Subsidiary--Government regulation and Legal Uncertainties Related to
CFN Could Adversely Affect Our Business." and "Business--Consumer
Financial Network-- Government Regulation of Insurance, Auto Finance
and Mortgages" (the "Risk Factor Information") contained in the
Prospectus regarding residential mortgage issues insofar as those
statements constitute a summary of principles of mortgage loan laws or
regulations applicable to the business of CFN, fairly and accurately
represent the material mortgage loan laws and regulations applicable
to the operation of the CFN home finance program; and
(ii) On the basis of the information that we have gained in the course
of participating in the preparation of the Risk Factor Information,
nothing has come to our attention that would lead us to believe that
the statements made regarding residential mortgage issues in the Risk
Factor Information (i) in the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, insofar as
those statements constitute a summary of the principles of mortgage
loan laws or regulations applicable to the CFN home finance program,
or (ii) in the Prospectus, at the time the Prospectus was issued or at
the initial closing of the Offering, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading
insofar as those statements constitute a summary of the principles of
mortgage loan laws or regulations applicable to the CFN home finance
program. In rendering such opinion, we have relied as to matters of
fact (but not as to legal conclusions), to the extent we have deemed
proper, on certificates or affidavits of responsible officers of the
Company.
1
<PAGE>
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholders for the performance by each Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed
and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder,
enforceable in accordance with its terms.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Selling
Shareholders with their obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholders and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholders
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which any
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholders may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) By delivery of a certificate or certificates therefor such Selling
Shareholder will transfer to the Underwriters who have purchased such Securities
pursuant to the Purchase Agreement (without notice of any adverse claim to the
Securities) valid and marketable title to such Securities, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
2
<PAGE>
[Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(k)]
Exhibit C
October ___, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
BancBoston Robertson Stephens Inc.
First Union Securities, Inc.
The Robinson-Humphrey Company, LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
The undersigned, a security holder of iXL Enterprises, Inc., a Delaware
corporation (the "Company"), or one of its Subsidiaries (as such term is defined
in the Purchase Agreement (as defined herein)), understands that Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and
certain other underwriters propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Shareholders referred to
therein providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $0.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a security holder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 90 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer to sell, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file or cause to be filed
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
The foregoing paragraph shall not apply to (a) transactions by any
person other than the Company relating to registered shares of Common Stock or
other securities acquired in open market transactions or (b) transfers of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock to a member of the undersigned's immediate family or to a trust of
which the undersigned or an immediate family member is the beneficiary (either
one a "Transferee") provided that upon any such transfer, the Transferee shall
sign a letter substantially similar to this letter agreement agreeing not to
sell, grant any option to purchase, or otherwise transfer or dispose of any such
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for the remainder of the above-referenced 90-day period.
1
<PAGE>
The undersigned agrees that the provisions of this Agreement shall be
binding also upon the successors, assigns, heirs and personal representatives of
the undersigned and that any registration rights with respect to the offering of
Securities contemplated by the Purchase Agreement have been hereby waived.
Very truly yours,
Signature:
Print Name:
2
<PAGE>
EXHIBIT 1.2
IXL ENTERPRISES, INC.
(a Delaware corporation)
1,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
Dated: November 18, 1999
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
U.S. PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties 3
------------------------------
(a) Representations and Warranties by the Company 3
(b) Representations and Warranties by the Selling Shareholders 13
(c) Officer's Certificates 15
SECTION 2. Sale and Delivery to International Managers; Closing 16
----------------------------------------------------
(a) Initial Securities 16
(b) Option Securities 16
(c) Payment 16
(d) Denominations; Registration 17
SECTION 3. Covenants of the Company 17
------------------------
(a) Compliance with Securities Regulations and Commission Requests 17
(b) Filing of Amendments 18
(c) Delivery of Registration Statements 18
(d) Delivery of Prospectuses 18
(e) Continued Compliance with Securities Laws 19
(f) Blue Sky Qualifications 19
(g) Rule 158 19
(h) Use of Proceeds 19
(i) Listing 20
(j) Restriction on Sale of Securities 20
(k) Reporting Requirements 20
(l) Compliance with Rule 463 20
SECTION 4. Payment of Expenses 20
-------------------
(a) Expenses 20
(b) Expenses of the Selling Shareholders 21
(c) Termination of Agreement 21
(d) Allocation of Expenses 21
SECTION 5. Conditions of International Managers' Obligations 21
-------------------------------------------------
(a) Effectiveness of Registration Statement 21
(b) Opinions of Counsel for Company 22
(c) Opinion of Counsel for the Selling Shareholders 22
(d) Opinion of Counsel for International Managers 22
(e) Officers' Certificate 22
(f) Certificate of Selling Shareholders 23
(g) Accountants' Comfort Letters 23
(h) Bring-down Comfort Letters 23
(i) Approval of Listing 23
(j) No Objection 23
(k) Lock-up Agreements 23
(l) Purchase of Initial International Securities 23
(m) Conditions to Purchase of International Option Securities 24
(n) Additional Documents 24
(o) Termination of Agreement 25
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 6. Indemnification 25
---------------
(a) Indemnification of International Managers by the Company and Certain
Selling Shareholders 25
(b) Indemnification of International Managers by Selling Shareholders Not
Listed on Schedule E hereto 26
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders 27
(d) Actions against Parties; Notification 27
(e) Settlement without Consent if Failure to Reimburse 28
(f) Order of Priority for Indemnification 28
(g) Other Agreements with Respect to Indemnification 28
SECTION 7. Contribution 28
------------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 30
--------------------------------------------------------------
SECTION 9. Termination of Agreement 30
------------------------
(a) Termination; General 30
(b) Liabilities 30
SECTION 10. Default by One or More of the International Managers 31
----------------------------------------------------
SECTION 11. Default by One or More of the Selling Shareholders or the Company 31
-----------------------------------------------------------------
SECTION 12. Notices 32
-------
SECTION 13. Parties 32
-------
SECTION 14. GOVERNING LAW AND TIME 33
----------------------
SECTION 15. Effect of Headings 33
------------------
</TABLE>
SCHEDULE A Sch A-1
SCHEDULE B Sch B-1
SCHEDULE C Sch C-1
SCHEDULE D Sch D-1
SCHEDULE E Sch E-1
Exhibit A-1 A-1-1
Exhibit A-2 A-2-1
Exhibit A-3 A-3-1
Exhibit A-4 A-4-1
Exhibit B B-1
ii
<PAGE>
IXL ENTERPRISES, INC.
(a Delaware corporation)
1,400,000 Shares of Common Stock
(Par Value $0.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
November 18, 1999
MERRILL LYNCH INTERNATIONAL
Donaldson, Lufkin & Jenrette International
BancBoston Robertson Stephens International Ltd
The Robinson-Humphrey Company, LLC
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
iXL Enterprises, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders") confirm their
respective agreements with Merrill Lynch International ("Merrill Lynch") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, Donaldson, Lufkin & Jenrette International, BancBoston Robertson
Stephens International and The Robinson-Humphrey Company, LLC are acting as
representatives (in such capacity, the "Lead Managers"), with respect to (i) the
sale by the Company and Selling Shareholders, acting severally and not jointly,
and the purchase by the International Managers, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01
per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 210,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 1,400,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 210,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the sale by the Company and the Selling Shareholders of an aggregate of
5,600,000 shares of Common Stock (the "Initial U.S. Securities") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters") for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation, BancBoston
Robertson Stephens Inc., First Union Securities, Inc. and The Robinson-Humphrey
Company, LLC are acting as representatives (the "U.S. Representatives") and the
grant by the Company to the U.S. Underwriters, acting severally and not jointly,
of an option to purchase all or any part of the U.S. Underwriters' pro rata
portion of up to 840,000 additional shares of Common Stock solely to cover over-
allotments, if any (the "U.S. Option Securities" and, together with the
1
<PAGE>
International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Company is not obligated to sell and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-88847) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated November 4, 1999 and preliminary
International Prospectus dated November 4, 1999, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
2
<PAGE>
1. SECTION Representations and Warranties.
------------------------------
2.
(a) Representations and Warranties by the Company. The Company represents and
warrants to each International Manager as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
-----------------------------------------
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of Delivery),
the Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including the prospectus wrapper relating to sales of Securities in
Canada (except as it relates specifically to matters of Canadian law)), at
the time the Prospectuses or any amendments or supplements thereto were
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers expressly for use in the Registration
Statement or the International Prospectus.
The Company has filed a registration statement pursuant
to Section 12(b) of the Securities Exchange Act of 1934 (the "1934 Act"),
to register the Common Stock, and such registration statement has been
declared effective.
Each preliminary prospectus and the prospectuses filed
as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied as to form when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectuses to be
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T. The representations and warranties in this subsection shall not apply
to statements in or omissions from the preliminary prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by any International Manager through the Lead Managers
expressly for use in the preliminary prospectus.
3
<PAGE>
(i) Independent Accountants. The accountants who certified
-----------------------
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(i) Financial Statements. The financial statements of the Company
--------------------
and its consolidated subsidiaries included in the Registration Statement
and the Prospectuses, together with the related schedules and notes,
present fairly in all material respects the financial position of the
Company and its consolidated Subsidiaries (as defined below) at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles (GAAP) applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly, in all material
respects, in accordance with GAAP the information required to be stated
therein. The selected consolidated financial data, the summary consolidated
financial information, and the capitalization information included in the
Prospectuses present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of the
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses, other than the quarterly pro
forma information set forth in the Prospectuses under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. No financial statements are required to be included in
the Registration Statement that have not been so included.
(i) Subsidiary Financial Statements. The financial statements
-------------------------------
of the Company included in the Registration Statement and the Prospectuses,
together with the related schedules and notes, present fairly in all
material respects the financial position of such Subsidiaries and their
respective consolidated Subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of such
Subsidiaries and their respective consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved.
(i) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(i) Good Standing of the Company. The Company has been duly
----------------------------
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse Effect.
<PAGE>
(i) Good Standing of Subsidiaries. Each subsidiary of the Company
-----------------------------
(other than subsidiaries in which the Company has only a minority ownership
interest) (each such subsidiary individually a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse Effect; except for
the pledge of the Subsidiaries' stock pursuant to the Credit Facility (as
such term is defined in the Registration Statement) or as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. The only Subsidiaries of the Company are
the Subsidiaries listed on Exhibit 21 to the Registration Statement. Except
as described in the Prospectuses, or except as would not be required to be
described, the Company has no agreements, commitments, or understandings
with respect to acquiring the business, stock or material assets, except
those assets acquired in the ordinary course of business, of any other
person or entity.
(i) Capitalization. The authorized, issued and outstanding
--------------
capital stock of the Company is as set forth in the Prospectuses under the
caption "Capitalization," and, after giving effect to the offering will be
as set forth as "Pro Forma As Adjusted" under the caption "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectuses or pursuant to the exercise of convertible securities
or options referred to in the Prospectuses, and except for 10,000,000
shares of Common Stock registered pursuant to a shelf Registration
Statement on Form S-4 for use in future acquisitions), and the number of
authorized, issued and outstanding options and other rights is set forth in
the footnotes under such caption. To the knowledge of the Company, the
shares of issued and outstanding capital stock of the Company and its
subsidiary Consumer Financial Network, Inc., have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any security holder of the
Company. The shares of issued and outstanding capital stock of the Company
have been issued in compliance, in all material respects, with all federal
and state securities laws. Except as disclosed in the Prospectuses, there
are no outstanding options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares
of the Company's or its Subsidiaries' capital stock or any such options,
rights, convertible securities or obligations. The description of the
Company's stock option and purchase plans and the options or other rights
granted and exercised thereunder set forth in the Prospectuses accurately
and fairly describe, in all material respects, the information required to
be shown with respect to such plans, arrangements, options and rights.
(i) Authorization of Agreement. This Agreement and the
--------------------------
International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(i) Authorization and Description of Securities. The Securities
-------------------------------------------
to be purchased by the International Managers and the U.S. Underwriters
from the Company and the Selling Shareholders have been duly authorized for
issuance and sale to the International Managers pursuant to this Agreement
and the U.S. Underwriters pursuant to the U.S. Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the U.S. Purchase Agreement, respectively, against
payment of the consideration set forth herein and the U.S. Purchase
Agreement, respectively, will be validly issued, fully paid and non-
assessable; the Common Stock conforms in all material respects to
<PAGE>
all statements relating thereto contained in the Prospectuses and such
description conforms in all material respects to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; the
issuance of the Securities is not subject to preemptive rights, co-sale
rights, rights of first refusal or similar rights of any security holder of
the Company or other party and, except as disclosed in the Registration
Statement, the issuance of the Securities is not subject to registration
rights. The Securities will be sold free and clear of all liens,
encumbrances, equities or claims.
(i) Absence of Defaults and Conflicts. Neither the Company nor any of
---------------------------------
its Subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S. Purchase
Agreement and the consummation of the transactions contemplated in this
Agreement, the U.S. Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the U.S. Purchase Agreement have been
duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for such
violations, conflicts, breaches or defaults or liens, charges or
encumbrances that would not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary or
any applicable law, statute binding upon, or, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations, except for
such defaults, which would not reasonably be expected to result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary.
(i) Absence of Labor Dispute. No labor dispute with the employees of
------------------------
the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
(i) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
<PAGE>
routine litigation incidental to the business, would not reasonably be
expected to result in a Material Adverse Effect.
(i) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required. The contracts so filed as exhibits are
accurate and complete, in all material respects; all such contracts are in
full force and effect on the date hereof, and neither the Company or any of
its Subsidiaries or, to the Company's best knowledge, any other party is in
breach of or default under any material provisions of such contracts the
result of which would reasonably be likely to result in a Material Adverse
Effect.
(i) Possession of Intellectual Property. The Company and its
-----------------------------------
Subsidiaries own or possess or have access to adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), United States trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them except as would not reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its Subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(i) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required to be made or obtained by the Company for the
performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities under this Agreement and
the U.S. Purchase Agreement or the consummation of the transactions
contemplated by this Agreement and the U.S. Purchase Agreement, except (i)
such as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations and foreign or state securities or blue sky
laws or (ii) such as have been described in the Registration Statement.
(i) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not reasonably be expected to have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(i) Title to Property. The Company and its Subsidiaries have good and
-----------------
marketable title to all real property owned by the Company and its
Subsidiaries and valid title to all other properties and assets owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectuses or (b) would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on the value of such property or assets and would not reasonably be
expected to interfere with the use made and proposed to be made of such
property by the Company or any of its Subsidiaries; and all of the leases
<PAGE>
and subleases material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectuses, are in full
force and effect, except for such failure to be in force as would not
reasonably be expected to have a Material Adverse Effect and neither the
Company nor any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(i) Tax Returns and Payment of Taxes. The Company and its
--------------------------------
Subsidiaries have timely filed all Federal, state, local and foreign tax
returns that are required to be filed or have duly requested extensions
thereof and all such tax returns are true, correct and complete, except to
the extent that any failure to file or request an extension, or any
incorrectness would not reasonably be expected to result in a Material
Adverse Effect. The Company and its Subsidiaries have timely paid all taxes
shown as due on such filed tax returns (including any related assessments,
fines or penalties), except to the extent that any such taxes are being
contested in good faith and by appropriate proceedings, or to the extent
that any failure to pay would not reasonably be expected to result in a
Material Adverse Effect; and adequate charges, accruals and reserves have
been provided for in the financial statements referred to in Section
1(a)(iii) above in accordance with GAAP in respect of all Federal, state,
local and foreign taxes for all periods as to which the tax liability of
the Company or any of its Subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities. The Company
is not a "United States real property holding corporation" within the
meaning of Section 897(c)(3) of the Internal Revenue Code of 1986, as
amended.
(i) Insurance. The Company and each of its Subsidiaries are insured
---------
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are prudent and customary
in the businesses in which they are engaged; and neither the Company nor
any of its Subsidiaries has any reason to believe that any of them will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business except where the failure to renew or
maintain such coverage would not reasonably be expected to result in a
Material Adverse Effect. The officers and directors of the Company are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for
officers and directors liability insurance of a public company and as would
cover claims which could be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will not be
able to renew its existing directors and officers liability insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to cover its officers and
directors.
(i) No Stabilization or Manipulation. Neither the Company nor, to the
--------------------------------
knowledge of the Company, any of its directors, officers or affiliates has
taken nor will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M
under the 1934 Act.
(i) Investment Company Act. The Company is not, and upon the issuance
----------------------
and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectuses, will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(i) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or
<PAGE>
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(i) Registration Rights. Except as described in the Prospectuses,
-------------------
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(i) Certain Transactions. Except as disclosed in the Prospectuses or
--------------------
except as not reasonably required to be disclosed in the Prospectuses,
there are no outstanding loans, advances, or guarantees of indebtedness by
the Company to or for the benefit of any of the executive officers or
directors of the Company or any of the members of the families of any of
them.
(i) Accounting and Other Controls. The Company has established for
-----------------------------
itself and each Subsidiary and, with respect to future acquisitions, will
establish, a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions were, are or, in the case of
such future acquisitions, will be executed in accordance with management's
general or specific authorization; (ii) transactions were, are or, in the
case of such future acquisitions, will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is or, in the case of such future acquisitions, will
be permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets was, is or,
in the case of such future acquisitions, will be compared with existing
assets at reasonable intervals and appropriate action was, is or, in the
case of such future acquisitions, will be taken with respect to any
differences.
(i) Regulations. The Company and CFN have not been advised, and have
-----------
no reason to believe, that either they or any of their subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, all applicable local, state and federal laws
and regulations; except where failure to be so in compliance would not
reasonably be expected to result in a Material Adverse Effect.
(a) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder (except in the case of Section 1(b)(i)(1) hereto, only each
such Selling Shareholder listed on Schedule E hereto) severally represents and
warrants to each Underwriter as of the date hereof, and as of the Closing Time,
and agrees with each Underwriter, as follows:
(b)
(i) Accurate Disclosure.
-------------------
(1) In the case of each such Selling Shareholder listed on
Schedule E hereto, to the best knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in
<PAGE>
Section 1(a) hereof are true and correct; such Selling Shareholder has reviewed
and is familiar with the Registration Statement and the Prospectuses and neither
the Prospectuses nor any amendments or supplements thereto include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; such Selling Shareholder is not prompted to sell
the Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary which is not set forth in
the Prospectuses.
(2) In the case of each such Selling Shareholder not listed on
Schedule E hereto, the written information furnished by such Selling Shareholder
to the Company expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectuses (or any amendment or supplement thereto) does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(i) Authorization of Agreements. Each Selling Shareholder has the
---------------------------
full right, power and authority to enter into this Agreement and a Custody
Agreement and Power of Attorney (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by such
Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a material breach of, or material default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder or
any property or assets of such Selling Shareholder pursuant to any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound,
or to which any of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws or other organizational instrument of such Selling
Shareholder, if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(i) Good and Marketable Title. Such Selling Shareholder has and will
-------------------------
at the Closing Time have good and marketable title to the Securities to be
sold by such Selling Shareholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(i) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney and Custody
Agreement with U. Bertram Ellis, Jr. and M. Wayne Boylston as
attorneys-in-fact (each, an "Attorney-in-Fact") and SunTrust Bank, Atlanta,
as depositary (the "Depositary"); the Depositary is authorized to deliver
the Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor; and the Attorney-in-Fact is authorized to execute
and deliver this Agreement and the certificate referred to in Section 5(f)
or that may be required pursuant to Section 5(n) on behalf of such Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Shareholder hereunder, to determine
the purchase price to be paid by the Underwriters to such Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the delivery
of the Securities to be sold by such Selling Shareholder hereunder, to
accept payment therefor, and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
<PAGE>
(i) Absence of Manipulation. Such Selling Shareholder has not taken,
-----------------------
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(i) Restriction on Sale of Securities. During a period of 90 days
---------------------------------
from the date of the Prospectuses, such Selling Shareholder will not,
without the prior written consent of Merrill Lynch, directly or indirectly,
(i) offer to sell, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of, or otherwise transfer or dispose
of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, whether owned as of the date
hereof or hereafter acquired by such Selling Shareholder or with respect to
which such Selling Shareholder has or hereafter acquires the power of
disposition, or file or cause to be filed any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of
the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) transactions by any person other than the Company relating to
registered shares of Common Stock or other securities acquired in open
market transactions or (b) transfers of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock to a
member of such Selling Shareholder's immediate family or to a trust of
which such Selling Shareholder or an immediate family member is the
beneficiary (either one a "Transferee") provided that upon any such
transfer, the Transferee shall sign a letter substantially similar to the
letter agreement set forth as Exhibit C hereto agreeing not to sell, grant
any option to purchase, or otherwise transfer or dispose of any such Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock for the remainder of the above-referenced 90-day period.
(i) Certificates Suitable for Transfer. Certificates for all of the
----------------------------------
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Depositary with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(i) No Association with NASD. Neither such Selling Stockholder nor
------------------------
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(a) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the
<PAGE>
Lead Managers or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby.
1. SECTION Sale and Delivery to International Managers; Closing.
----------------------------------------------------
2.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agrees to sell
to each International Manager, severally and not jointly, and each International
Manager, severally and not jointly, agrees to purchase from the Company and each
Selling Shareholder, at the price per share set forth in Schedule C, that
proportion of the number of Initial International Securities set forth in
Schedule B opposite the name of the Company or such Selling Shareholder, as the
case may be, which the number of the Initial Securities set forth in Schedule A
opposite the name of such International Manager, plus any additional number of
Initial International Securities which such International Manager may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial Securities, subject in each case, to such
adjustments among the International Managers as the Lead Managers in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
(a) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to each International Manager,
severally and not jointly, to purchase up to an additional 210,000 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Global Coordinator to the Company
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(b)
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Minkin
& Snyder, One Buckhead Plaza, 3860 Peachtree Road, Suite 1100, Atlanta, Georgia
30318, or at such other place as shall be agreed upon by the Global Coordinator
and the Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator and the
Company and the Selling Shareholders (such time and date of payment and delivery
being herein called "Closing Time").
(d)
(e) In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company and the
Selling Shareholders, on each Date of Delivery as specified in the notice from
the Global Coordinator to the Company and the Selling Shareholders.
(f)
<PAGE>
(g) Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to the bank accounts designated by
the Company and the Depositary pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the Lead
Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(h)
(i) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
1. SECTION Covenants of the Company. The Company covenants with each
------------------------
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company, after
consultation with the Lead Managers, will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company, after consultation
with the Lead Managers, will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b)
(c) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the International Managers shall reasonably object.
(d)
(e) Delivery of Registration Statements. The Company has furnished or will
deliver to the Lead Managers and counsel for the International Managers, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Lead Managers,
<PAGE>
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(f)
(g) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(h)
(i) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the U.S.
Purchase Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the International Managers or for
the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the International Managers such number of copies of
such amendment or supplement as the International Managers may reasonably
request.
(j)
(k) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(l)
<PAGE>
(m) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(n)
(o) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds."
(p)
(q) Listing. The Company will use its best efforts to effect and maintain
the quotation of the Securities on the Nasdaq National Market or the listing of
the Securities on the New York Stock Exchange and will file with the Nasdaq
National Market or the New York Stock Exchange, as applicable, all documents and
notices required by such exchange of companies that have securities that are
traded in the over-the-counter market and quotations for which are reported by
the Nasdaq National Market or which are listed on the New York Stock Exchange,
as the case may be. The parties understand that this covenant shall terminate
upon a "going private transaction" or the sale or merger of the Company or
similar transaction.
(r)
(s) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, directly or indirectly, (i) offer to sell,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise transfer or dispose of any share of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
of itself or any Subsidiary or file any registration statement under the 1933
Act with respect to any of the foregoing, or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or under the U.S. Purchase Agreement, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectuses, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans or other stock
option plans of the Company referred to in the Prospectuses, (D) the filing of
Registration Statements on Form S-4 covering up to 10,000,000 shares of Common
Stock to be issued by the Company, or (E) the filing of a Registration Statement
on Form S-8 covering up to 41,000,000 shares of Common Stock granted under the
Company's stock option plans, plus additional shares to be registered under the
Tessera Stock Option Plan to be assumed by the Company.
(t)
(u) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(v)
(w) Compliance with Rule 463. The Company will file with the Commission
such reports and report the use of proceeds of the sale of the Securities as may
be required pursuant to Rule 463 of the 1933 Act Regulations.
<PAGE>
(i) SECTION Payment of Expenses. Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, the printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters and the transfer of the Securities between the
International Managers and the U.S. Underwriters, the fees and disbursements of
the Company's counsel, accountants and other advisors, the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, the
preparation and delivery to the Underwriters of copies of the Blue Sky Survey
and any supplement thereto, the fees and expenses of any transfer agent or
registrar for the Securities, the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Securities, the transportation and other expenses
incurred by the Company in connection with presentations to prospective
purchasers of the Securities and the fees and expenses incurred in connection
with the inclusion of the Securities in the Nasdaq National Market.
(a) Expenses of the Selling Shareholders. The Selling Shareholders, severally
and not jointly, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) the fees and disbursements of
their respective counsel and accountants.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company and the Selling Shareholders shall reimburse the
International Managers for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the International Managers.
(c)
(d) Allocation of Expenses. The provisions of this Section shall not affect any
agreement that the Company and the Selling Shareholders may make for the sharing
of such costs and expenses.
2. SECTION Conditions of International Managers' Obligations.
-------------------------------------------------
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any Subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b)
<PAGE>
(c) Opinions of Counsel for Company. At Closing Time, the Lead Managers shall
have received the favorable opinion, dated as of Closing Time, of (i) Minkin &
Snyder, a Professional Corporation, counsel for the Company, (ii) Morris,
Manning & Martin, L.L.P., special counsel for the Company, (iii) Hudson Cook,
LLP, special counsel for the Company and (iv) Goodwin, Procter & Hoar, LLP,
special counsel for the Company, in each case in form and substance reasonably
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of each such letter for each of the other International
Managers to the effect set forth in Exhibits A-1 to A-4 hereto and to such
further effect as counsel to the International Managers may reasonably request.
(d)
(e) Opinion of Counsel for the Selling Shareholders. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time, of
counsel for each of the Selling Shareholders, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letters for each of the other Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(f)
(g) Opinion of Counsel for International Managers. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time, of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the International
Managers, together with signed or reproduced copies of such letter for each of
the other International Managers, in customary form and covering such matters as
the International Managers may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Lead Managers. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(h)
(i) Officers' Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Lead Managers shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(j)
(k) Certificate of Selling Shareholders. At Closing Time, the Lead Managers
shall have received a certificate of an Attorney-in-Fact on behalf of each
Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(l)
(m) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the Lead Managers shall have received from PricewaterhouseCoopers LLP
a letter dated such date, in form and substance reasonably satisfactory to the
Lead Managers, together with signed or reproduced copies of such letter for each
of the other International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(n)
(o) Bring-down Comfort Letters. At Closing Time, the Lead Managers shall have
received from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to
the effect that it reaffirms the statements made
<PAGE>
in the letter furnished pursuant to subsection (g) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to Closing Time.
(p)
(q) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(r)
<PAGE>
(s) No Objection. The NASD has confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(t) Lock-up Agreements. At the date of this Agreement, the Lead Managers shall
have received an agreement substantially in the form of Exhibit C hereto signed
by the stockholders and option holders of any securities of the Company and its
Subsidiaries listed on Schedule D hereto.
(u)
(v) Purchase of Initial International Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(w)
(x) Conditions to Purchase of International Option Securities. In the event
that the International Managers exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the International Option Securities,
the representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the Company
or any Subsidiary of the Company and the Selling Shareholders hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers shall have received:
(y)
(i) Officers' Certificate. A certificate, dated such Date of Delivery, of
---------------------
the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(i) Opinions of Counsel for Company. The favorable opinion of each of (a)
-------------------------------
Minkin & Snyder, a Professional Corporation, counsel for the Company, (b)
Morris, Manning & Martin, L.L.P., special counsel for the Company, (c)
Hudson Cook, LLP, special counsel for the Company and (d) Goodwin, Procter
& Hoar, LLP, special counsel for the Company, in each case in form and
substance reasonably satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(b) hereof.
(i) Opinion of Counsel for International Managers. The favorable opinion
---------------------------------------------
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the International
Managers, dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(i) Bring-down Comfort Letters. A letter from PricewaterhouseCoopers LLP
--------------------------
in form and substance reasonably satisfactory to the Lead Managers and
dated such Date of Delivery, substantially in the same form and substance
as the letter furnished to the Lead Managers pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(a) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the International Managers shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Lead Managers and counsel for the
International Managers.
(b)
(c) Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of International Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
Option Securities, may be terminated by the Lead Managers by notice to the
<PAGE>
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
1. SECTION Indemnification.
---------------
2.
(a) Indemnification of International Managers by the Company and Certain
Selling Shareholders. The Company and the Selling Shareholders listed on
Schedule E hereto, jointly and severally, agree to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company and the counsel for the Selling Shareholders; and
(ii) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this indemnity agreement shall not apply to
--------------- -------
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Company by any International Manager through the Lead Managers
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the International Prospectus
(or any amendment or supplement thereto); provided, however, that no such
-------- -------
Selling Shareholder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Selling Shareholder from the
sale of Securities pursuant to this Agreement; and provided further that
-------- -------
the Company and such Selling Shareholders will not be liable to any U.S.
Underwriter with respect to any U.S. Prospectus to the extent that the
Company or such Selling Shareholders shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the
fact that such U.S. Underwriter, in contravention of a requirement of this
Agreement or applicable law, sold Securities to a person to whom such U.S.
Underwriter failed to send or give, at or prior to the Closing Date, a copy
of the Final Prospectus, as then amended or supplemented if: (i) the
Company has previously furnished copies thereof (sufficiently in advance of
the Closing Date to allow for distribution by the Closing Date) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter resulted from an untrue statement or omission of a material
fact contained in or omitted from the Preliminary Prospectus which was
corrected in the Final Prospectus as, if applicable, amended or
supplemented prior to the Closing Date and such Final Prospectus was
required by law to be delivered at or prior to the written confirmation of
sale to such person and (ii) such failure to give or send such Final
Prospectus by
<PAGE>
the Closing Date to the party or parties asserting such loss, liability,
claim, damage or expense would have constituted a defense to the claim
asserted by such person.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an
International Manager or who controls an underwriter within the meaning of
Section 15 of 1933 Act or Section 20 of the 1934 Act and who, at the date
of this Agreement, is a director or officer of the Company or controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement under Item 14 thereof.
(a) Indemnification of International Managers by Selling Shareholders Not
Listed on Schedule E hereto. Each Selling Shareholder (other than those Selling
Shareholders listed on Schedule E hereto, which shareholders are subject to the
provisions of Section 6(a) hereof) severally, but not jointly, agrees to
indemnify and hold harmless each International Manager and the other Selling
Shareholders, and each of their respective directors and officers, and each
person, if any, who controls any International Manager or any other Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Selling
Shareholder furnished to the Company by such Selling Shareholder expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto); provided, however, that no such Selling Shareholder shall be liable
-------- -------
for any claims hereunder in excess of the amount of net proceeds received by
such Selling Shareholder from the sale of Securities pursuant to this Agreement.
(b)
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(d)
(e) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same
<PAGE>
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(f)
(g) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(h)
(i) Order of Priority for Indemnification. The International Managers shall
seek indemnification to which they are entitled under Sections 6(a) and 6(b)
hereof or contribution under Section 7 hereof first from the Company. In the
event that the International Managers are unable (or reasonably believe they
will be unable to) obtain such indemnification or contribution from the Company,
the International Managers may then seek indemnification or contribution from
the Selling Shareholders.
(j)
(k) Other Agreements with Respect to Indemnification. The provisions of this
Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
1. SECTION Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the International Managers on
the other hand in connection with the statements or omissions, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the International Managers on the other hand in connection
with the offering of the U.S. Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the International Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the Selling Shareholders and the
total underwriting discount received by the International Managers, in each case
as set forth on the cover of the International Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate public
offering price of the International Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or
<PAGE>
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company and the
Selling Shareholders or by the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Shareholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the International Managers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any reasonable legal or other expenses
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (x) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission and (y) no Selling Shareholder shall be required to contribute any
amount in excess of such Selling Shareholder's net proceeds (after deducting the
underwriting discount, but before deducting expenses) from the sale of
Securities pursuant to this Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
1. SECTION Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any International Manager or controlling person, or by or on behalf of the
Company or the Selling Shareholders, and shall survive delivery of the
Securities to the International Managers.
<PAGE>
1. SECTION Termination of Agreement.
------------------------
2.
(a) Termination; General. The Lead Managers may terminate this Agreement, by
notice to the Company and the Selling Shareholders, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
International Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Lead Managers, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(a) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
1. SECTION Default by One or More of the International Managers. If one or
----------------------------------------------------
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of
U.S. Securities to be purchased on such date, each of the non-defaulting
International Managers shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(b)
(c) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting International
Manager.
(d)
(e) No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
(f)
(g) In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers or
the Company and any Selling Shareholder shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or
<PAGE>
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
1. SECTION Default by One or More of the Selling Shareholders or the
---------------------------------------------------------
Company.
- -------
2.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the International Managers may, at option of
the Lead Managers, by notice from the Lead Managers to the Company and the non-
defaulting Selling Shareholders, either (a) terminate this Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the Lead Managers, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(a) If the Company shall fail at Closing Time or at the Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any nondefaulting
party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
1. SECTION Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the International Managers
shall be directed to the Lead Managers at 3300 Hillview Avenue, Suite 150, Palo
Alto, California 94304-1203, attention of Jack Weingart, with a copy to Gregory
C. Smith, Skadden, Arps, Slate, Meagher & Flom LLP, 525 University Avenue, Palo
Alto, California, 94301; and notices to the Company shall be directed to it at
1900 Emery Street, N.W., Atlanta, Georgia 30318, attention of M. Wayne Boylston
with copies to James S. Altenbach, Minkin & Snyder, One Buckhead Plaza, 3060
Peachtree Road, Suite 1100, Atlanta, Georgia 30305; notices to the Selling
Shareholders shall be directed to the Company at 1900 Emery Street N.W.,
Atlanta, Georgia 30318, attention of M. Wayne Boylston, with copies to James S.
Altenbach, Minkin & Snyder, One Buckhead Plaza, 3060 Peachtree Road, Suite 1100,
Atlanta, Georgia 30305.
1. SECTION Parties. This Agreement shall each inure to the benefit of and be
-------
binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
1. SECTION GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
<PAGE>
1. SECTION Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the International Managers,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
IXL ENTERPRISES, INC.
By
Name:
Title:
By
As Attorney-in-Fact on behalf of the
Selling Shareholders named in Schedule B
hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
BANCBOSTON ROBERTSON STEPHENS INTERNATIONAL LTD
THE ROBINSON-HUMPHREY COMPANY, LLC
By: MERRILL LYNCH INTERNATIONAL
By
Name:
Title:
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
<PAGE>
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
Merrill Lynch International 532,000
Donaldson, Lufkin & Jenrette International 532,000
BancBoston Robertson Stephens International Ltd. 224,000
The Robinson-Humphrey Company, LLC 112,000
----------
Total: 1,400,000
1
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Number of Initial Maximum Number of
International International Securities to
Securities to be Sold Be Sold
--------------------- ---------------------------
<S> <C> <C>
IXL ENTERPRISES, INC. 400,000 210,000
SELLING SHAREHOLDERS
General Capital Assurance Company 12,592 --
GE Capital Equity Investments, Inc. 100,741 --
General Electric Pension Trust 25,185 --
Kevin M. Wall 100,740 --
James R. Rocco 60,444 --
Barry T. Sikes 22,274 --
@radical.media, Inc. 202 --
Karen Booth Adams 14,656 --
Karen Booth Adams Irrevocable Trust 10,074 --
James S. Altenbach 5,037 --
Steven P. Amedio 1,511 --
Jay Amos 504 --
Claire Lewis Arnold 1,007 --
Ashish Bahl 27,704 --
Steven C. Baum 18,637 --
Jens Bley 1,209 --
Robert Bowman 6,548 --
Robert Burk (Trustee of the Burk Family Trust dated 8/17/82) 371 --
Burton Technology Partners, Ltd. 520 --
Eric Butz 1,007 --
David M. Carroll 1,007 --
Steven E. Chamberlain 252 --
Stefan Chopin 5,037 --
David E. Clauson 10,074 --
Steven K. Conine 10,187 --
Barbara B. Cook 5,037 --
Cox Technology Investments, Inc. 20,148 --
Larry Culbertson 4,533 --
Josiah Cushing 257 --
Richard M. Cyert (Estate of) 2,720 --
Guy Davidson 7,556 --
Kevin Davis 761 --
Burton F. Dodd 504 --
</TABLE>
1
<PAGE>
<TABLE>
<S> <C> <C>
Anne Nancy Donohue 403 --
David E. Easterly 252 --
Dennis S. Ferraro 504 --
Finn Partners 20,148 --
William Stephen Floyd 40,296 --
Mary M. Fowlkes 13,432 --
Joelle G. Fox 1,068 --
Eric H. Freedman 10,074 --
James P. Ganley 1,209 --
Robert Gear 151 --
Michael Gilles 459 --
Juergen Goersch 1,523 --
Henry Goldberg 403 --
Glenn Golenberg 1,511 --
Jeffrey R. and Pamela Gordon, tenants by the entirety 3,022 --
William A. Grana, Jr. 201 --
Paul Grand 8,890 --
David Greeley 1,147 --
Joshua Greer 11,614 --
Guren Family Trust 403 --
Lisa L. Hendricks 17,468 --
Mark W. Hennessy 705 --
Peter R. Hennessy 604 --
Michael Hettwer 15,111 --
Jeffrey S. Hosley 60 --
Frank W. Hulse 249 --
Investar Burgeon Venture Capital, Inc. 1,192 --
Stephen P. Jackson 1,828 --
Mark Jacobstein 10,251 --
Jeffrey Janer 10,320 --
Teresa Joel 8,059 --
Kurt A. Keilhacker 1,551 --
Robert H. Kriebel (Estate of) 1,431 --
William A. Lackey 504 --
William M. Lackey 1,511 --
John Laurence 1,217 --
Lazarus Family Investments, LLC 201 --
M.R.W. Ventures, LLC 1,108 --
Norman S. Matthews 4,030 --
Robert H. McEver 151 --
John P. McEvoy 1,007 --
John F. McGillicuddy 3,526 --
</TABLE>
2
<PAGE>
<TABLE>
<S> <C> <C>
Jacob McGowan 3,362 --
Mellon Ventures II, L.P. 30,222 --
William Melton 11,915 --
MKA Partners, L.P. 4,533 --
Colin Morris 504 --
Mario M. Morino Trust 2,189 --
Scott Murphy 9,872 --
Richard Nailling 19,745 --
Mathias Oelmann 756 --
Robert O'Leary 252 --
Robert Ortiz 2,015 --
Manfred Ottenbreit 1,511 --
Pete T. Patterson 201 --
N. Blake Patton 554 --
Lisa Peddy 5,037 --
Stephanie A.H. Petersen 166 --
Randall M. Pipp 6,587 --
Michel Rapoport 1,007 --
John Rocco 705 --
David M. Roderick 1,007 --
James V. Sandry 2,518 --
Derek Scanlon 201 --
Michael E. Schaefer 3,022 --
F. Blair Schmidt-Fellner 538 --
Janet E. Schoff 2,015 --
Michael Schwartz 1,007 --
Niraj S. Shah 10,074 --
Mary Jane Shapiro 1,456 --
Melissa Shenkin 1,229 --
Stephen D. Silbert 1,259 --
Gary E. Snyder 403 --
Mark Swanson 10,074 --
Thomson U.S. Inc. 108,515 --
John Tierney 2,015 --
Gregory Waldbaum 1,975 --
Leonard N. Waldbaum 1,441 --
Scott Walker 1,007 --
WebListing Corporation Profit Sharing Plan 5,823 --
Weissmann, Wolff, Bergman, Coleman & Silverman, LLP 3,218 --
James L. Whims 1,551 --
William C. Whitley 18,153 --
</TABLE>
3
<PAGE>
<TABLE>
<S> <C> <C>
Armistead Whitney 94 --
Garland Wong 19,760 --
Harold B. Wright 1,007 --
Wyler Irrevocable Trust FBO Molly Wyler, Emily Wyler, Talli Wyler 1,007 --
David Wyler 20,148 --
Charles Zug 520 --
---------------- ----------------
1,000,000 0
Total 1,400,000 210,000
</TABLE>
4
<PAGE>
SCHEDULE C
IXL ENTERPRISES, INC.
1,400,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The public offering price per share for the International Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $[ ], being an
amount equal to the public offering price set forth above less $0.[ ]
per share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option Securities.
1
<PAGE>
SCHEDULE D
Persons and entities
subject to lock-up
"@radical.media, Inc."
Adams, Karen Booth
Adams, Karen Booth Irrevocable Trust
Altenbach, James S.
ALTRU Trust, an Irrevocable Trust
Amedio, Steven P.
Amos, Jay
Arnold, Claire Lewis
Bahl, Ashish
Baum, Steven C.
Bley, Jens
Bowman, Robert
Burk, Robert (Trustee of the Burk Family
Trust dated 8/17/82)
Butz, Eric
Campbell, Gordon A.
Carroll, David M.
Chamberlain, Steven E.
Clauson, David
Conine, Steven K.
Cox Technology Investments, Inc.
Cushing, Josiah
Cyert, Richard M. (Estate of)
Davidson, C.L., III
Davidson, Guy
Davis, Kevin
Davis, Norwood H., III
Dodd, Burton F.
Easterly, David E.
Ellis, Robert
Finn Partners
Flatiron Associates, LLC
Flatiron Fund 1998/99, LLC
Flatiron Fund, LLC
Floyd, William Stephen
Fowlkes, Mary M.
Fox, Joelle G.
Freedman, Eric H.
Fuchs, Michael
Ganley, James P.
Gear, Robert
Golenberg, Glenn
Golenberg, Glenn Inter Vivos Trust dated
4/27/93 - Glenn Golenberg, Trustee
Gordon, Jeffrey R.
Gordon, Jeffrey R. and Pamela, tenants by
the entirety
Grand, Paul
Greeley, David
Greer, Joshua
Greystone Capital Partners, I.L.P.
Guren Family Trust
Hardesty, Patricia (Trust)
Hennessy Cadillac, Inc.
Hennessy, Mark W.
Hennessy, Peter R.
Hennessy, Stephen R.
Henritze, Fred H.
Hodgson, Thom J.
Investar Burgeon Venture Capital, Inc.
Jacobstein, Mark
Janer, Jeffrey
Janzen, Lisa
Joel, Teresa
Keilhacker, Kurt A.
Kraft Enterprises Ltd.
Kriebel, Robert H. (Estate of)
Lackey, Wiliam A.
Lamon, Hollis M.
Laurence, John
Love Family Partneship - VI, LLP
Marks, Marilyn R.
McEver, Robert H.
McEvoy, John P.
McGillicuddy, John F.
Melton, William
MKA Partners, L.P.
Morris, Colin
Murphy, Scott
Nailing, Richard
Next Century Communications Corp.
Oelmann, Matthias
O'Leary, Robert
Ortiz, Daniella (Trust)
Ortiz, Justin (Trust)
Ortiz, Robert
Ottenbreit, Manfred
Parent, Kyle
Peddy, Lisa
Petersen, Stephanie A.H.
Pipp, Randall M.
Rapoport, Michel
Rocco, Anthony (Trust)
Rico, Christopher (Trust)
1
<PAGE>
Rocco, James
Rocco, James (Trust)
Rocco, Marge (Trust)
Rocco, Mario (Trust)
Rocco, Patricia Ann (Trust)
Roderick, David M.
Scanlon, Derek
Schaefer, Michael E.
Schmidt-Fellner, F. Blair
Schoff, Janet E.
Schwartz, Michael
Shah, Niraj S.
Shapiro, Mary Jane
Shenkin, Melissa
Sikes, Barry
Silbert, Stephn D.
Stern, Michael J.
Swanson, Mark
Thompson, Timothy E.
Thomson U.S. Inc.
Tierney, John
Waldbaum, Gregory
Walker, Scott
Wall 1999 Family Trust
Weller, Kathryn Arendall
Whitley, William C.
Wong, Garland
Wright, Harold B.
Wyler Irrevocable Trust FBO Molly Wyler,
Emily Wyler, Talli Wyler
Wyler, David
Zug, Charles
<PAGE>
SCHEDULE E
List of Selling Shareholders who
are Executive Officers of the Company
David E. Clauson
James R. Rocco
Barry T. Sikes
Kevin M. Wall
1
<PAGE>
Exhibit A-1
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(i) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted
and as described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreement.
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule A
attached hereto which to our knowledge is each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(i) On December 31, 1998 and Pro Forma for issuances of capital stock
occurring between January 1, 1999 and the Closing, the authorized, issued
and outstanding capital stock of the Company was and is as described in the
Prospectuses under the caption entitled "Capitalization" and, after giving
effect to the offering will be as described as Pro Forma as Adjusted under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements, or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses, and except for 10,000,000 shares of Common Stock
registered pursuant to Registration Statements on Form S-4 for use in
future acquisitions), and the number of authorized, issued and outstanding
options and other rights to acquire capital stock is as described under
such caption. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and to our knowledge none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. Except as
disclosed in the Prospectuses, to our knowledge, there are no outstanding
options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or, any
contracts or commitments to issue or sell, shares of the Company's or its
Subsidiaries' capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock option
and purchase plans, and the options or other rights granted and exercised
thereunder, set forth in the Prospectuses accurately and fairly presents in
all material respects the information required to be shown with respect to
such plans, options and rights.
(i) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder. The Common Stock conforms in all material respects as to
legal matters to all statements relating thereto contained in the
Prospectuses and such descriptions conform to the rights set forth in the
instruments defining the same.
(i) To our knowledge, the sale of the Securities by the Company and the
sale of the Securities by the Selling Shareholders is not subject to
preemptive rights, co-sale rights, rights of first refusal or similar
1
<PAGE>
rights of any security holder of the Company, and except as disclosed in
the Prospectuses, is not subject to registration rights. The Securities
will be sold free and clear of all liens, encumbrances, equities or claims.
(i) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction listed on Schedule A attached hereto
which to our knowledge is each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not reasonably be expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to our knowledge, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; to our knowledge none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. To our knowledge, except as described in
the Prospectuses or except as not required to be disclosed in the
Prospectuses, the Company has no written agreement, commitment or
understanding with respect to acquiring the business, stock, or material
assets, except assets acquired in the ordinary course of business, of any
other person or entity.
(i) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses and each amendment or supplement to the
Registration Statement and Prospectuses as of their respective effective or
issue dates (other than the financial statements and notes thereto, other
financial information and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(i) If Rule 434 has been relied upon, the Prospectuses were not
"materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(i) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the General
Corporation Law of the State of Delaware, with any applicable requirements
of the charter and by-laws of the Company and the requirements of the
Nasdaq National Market.
(i) To our knowledge, other than as set forth in the Prospectuses, there
is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any Subsidiary is a party, or to
which the property of the Company or any Subsidiary is subject, before or
brought by any court or governmental agency or body (domestic or foreign),
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the
2
<PAGE>
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the Company
of its obligations thereunder.
(i) The information in the Prospectuses under (A) "Certain Transactions,"
and "Management" and (B) in the Registration Statement under Item 14, to
the extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(i) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
(i) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its Subsidiaries are a party are accurate
in all material respects; to our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto are correct in
all material respects.
(i) To our knowledge, neither the Company nor any Subsidiary is in
violation of its charter or by-laws.
(i) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any federal or Georgia court or
governmental authority or agency, (other than under the 1933 Act and the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations which have
been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we need express no opinion) is necessary
or required to be obtained by the Company or any of its Subsidiaries in
connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance or sale of the Securities
to the Underwriters.
(i) The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument listed on the Exhibit Index to the S-1 Registration Statement,
to which the Company or any Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not reasonably be
expected to have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any Subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or material decree, known to us, of the General Corporation Law
of the State of Delaware, any Georgia or United States federal court,
government or government instrumentality having jurisdiction over the
Company or any Subsidiary or any of their respective properties, assets or
operations.
(i) To our knowledge, except as described in the Prospectuses, there are
no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
3
<PAGE>
(i) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(i) CFN has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and
has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectuses, except to the limited extent stated in paragraph
(iv), the second sentence of paragraph (v), paragraph (xiv) and the first clause
of paragraph (xvi) above. In the course of our review and discussion of the
contents of the Registration Statement and the Prospectuses with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to our attention
which cause us to believe that the Registration Statement (other than the
financial statements and notes thereto, other financial information and
supporting schedules contained therein or omitted therefrom, as to which we
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectuses (other than the financial statements and
notes thereto, other financial information and supporting schedules contained
therein or omitted therefrom, as to which we express no belief), as of their
dates and as of the date hereof, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
4
<PAGE>
Exhibit A-2
FORM OF OPINION OF MORRIS,
MANNING & MARTIN, L.L.P.
TO BE DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation," only
insofar as those statements constitute a summary of principles of insurance
laws or regulations applicable to the CFN Agency, Inc. business fairly and
accurately represent the material insurance laws and regulations applicable
to the operation of CFN Agency, Inc. business and, to the best of our
actual knowledge, there are no state insurance statutes or regulations
material to the operation of CFN Agency, Inc. business that are required to
be described in the Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that the
statements made in the Prospectuses under the captions "Risk Factors-
Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation" at the
time the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, only insofar as those statements constitute a summary of
principles of state insurance laws or regulations to the CFN Agency, Inc.
business.
1
<PAGE>
Exhibit A-3
FORM OF OPINION OF
HUDSON COOK, LLP TO BE
DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation,"
insofar as those statements constitute a summary of principles of auto loan
broker laws or regulations applicable to the business of CFN, fairly and
accurately represent the material auto loan broker laws and regulations
applicable to the operation CFN's business and to the best of our
knowledge, there are no statutes or regulations material to the operation
of CFN's auto loan broker business that are required to be described in the
Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that the
statements made in the Prospectuses under the captions "Risk Factors--
Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation," at
the time the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, insofar as those statements constitute a summary of principles
of auto loan broker laws or regulations applicable to the business of CFN.
1
<PAGE>
Exhibit A-4
FORM OF OPINION OF
GOODWIN, PROCTER & HOAR, LLP
DELIVERED PURSUANT TO
SECTION 5(b)
(i) The statements made under "Risk Factors--Risks Relating to Our CFN
Subsidiary--Government regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business." and "Business--Consumer Financial
Network-- Government Regulation of Insurance, Auto Finance and Mortgages"
(the "Risk Factor Information") contained in the Prospectus regarding
residential mortgage issues insofar as those statements constitute a
summary of principles of mortgage loan laws or regulations applicable to
the business of CFN, fairly and accurately represent the material mortgage
loan laws and regulations applicable to the operation of the CFN home
finance program; and
(ii) On the basis of the information that we have gained in the course of
participating in the preparation of the Risk Factor Information, nothing
has come to our attention that would lead us to believe that the statements
made regarding residential mortgage issues in the Risk Factor Information
(i) in the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as those statements constitute a
summary of the principles of mortgage loan laws or regulations applicable
to the CFN home finance program, or (ii) in the Prospectus, at the time the
Prospectus was issued or at the initial closing of the Offering, included
or includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as those statements constitute a summary of the principles of
mortgage loan laws or regulations applicable to the CFN home finance
program. In rendering such opinion, we have relied as to matters of fact
(but not as to legal conclusions), to the extent we have deemed proper, on
certificates or affidavits of responsible officers of the Company.
1
<PAGE>
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholders for the performance by each Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed
and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder,
enforceable in accordance with its terms.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Selling
Shareholders with their obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholders and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholders
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which any
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholders may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) By delivery of a certificate or certificates therefor such Selling
Shareholder will transfer to the Underwriters who have purchased such Securities
pursuant to the Purchase Agreement (without notice of any adverse claim to the
Securities) valid and marketable title to such Securities, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
2
<PAGE>
[Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(k)]
Exhibit C
October ___, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
BancBoston Robertson Stephens Inc.
First Union Securities, Inc.
The Robinson-Humphrey Company, LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
The undersigned, a security holder of iXL Enterprises, Inc., a Delaware
corporation (the "Company"), or one of its Subsidiaries (as such term is defined
in the Purchase Agreement (as defined herein)), understands that Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and
certain other underwriters propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Shareholders referred to
to therein providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $0.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a security holder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 90 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer to sell, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file or cause to be filed
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
The foregoing paragraph shall not apply to (a) transactions by any
person other than the Company relating to registered shares of Common Stock or
other securities acquired in open market transactions or (b) transfers of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock to a member of the undersigned's immediate family or to a trust of
which the undersigned or an immediate family member is the beneficiary (either
one a "Transferee") provided that upon any such transfer, the Transferee shall
sign a letter substantially similar to this letter agreement agreeing not to
sell, grant any option to purchase, or otherwise transfer or dispose of any such
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for the remainder of the above-referenced 90-day period.
1
<PAGE>
The undersigned agrees that the provisions of this Agreement shall be
binding also upon the successors, assigns, heirs and personal representatives of
the undersigned and that any registration rights with respect to the offering of
Securities contemplated by the Purchase Agreement have been hereby waived.
Very truly yours,
Signature:
Print Name:
2
<PAGE>
Exhibit C C-1
iii
<PAGE>
[LETTERHEAD OF MINKIN & SNYDER]
November 18, 1999
iXL Enterprises, Inc.
1888 Emery Street
Atlanta, GA 30318
Re: iXL Enterprises, Inc. Registration Statement on Form S-1 (No.
333-88847)
Ladies and Gentlemen:
We have acted as counsel for iXL Enterprises, Inc., a Delaware
corporation (the "Company"), in connection with the underwritten public
offering (the "Offering") by the Company of up to 8,050,000 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock")
of the Company, including up to 1,050,000 Shares which may be offered
and sold upon the exercise of an over-allotment option granted to the
underwriters. The Shares are to be offered to the public pursuant to a
U.S. Purchase Agreement (the "U.S. Purchase Agreement") to be entered
into among the Company and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, BancBoston Robertson Stephens Inc., First Union Securities,
Inc., and The Robinson-Humphrey Company, as U.S. Representatives of the
several U.S. Underwriters named in Schedule A thereto, and an
International Purchase Agreement (the "International Purchase Agreement"
and together with the U.S. Purchase Agreement, the "Purchase
Agreements"), among the Company and Merrill Lynch International,
Donaldson, Lufkin & Jenrette International, BancBoston Robertson
Stephens International Ltd, and The Robinson-Humphrey Company, as Lead
Managers of the several International Managers named in Schedule A
thereto. The opinion set forth below is based on the assumption that at
least par value will be paid for the Shares.
With your permission, all assumptions and statements of reliance
herein have been made without any independent investigation or
verification on our part except to the extent otherwise expressly
stated, and we express no opinion with respect to the subject matter or
accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and
records of the Company, such certificates of public officials and such
other documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or
appropriate for the purposes of this opinion. In all examinations, we
have assumed the legal capacity of all natural persons executing
documents, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified copies of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to
<PAGE>
Page 2
the opinions expressed herein, we have relied upon, and assume the
accuracy of, representations and warranties contained in the documents
and certificates and oral or written statements and other information of
or from representatives of the Company and others and assume compliance
on the part of all parties to the documents with their covenants and
agreements contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion
that the Shares registered pursuant to the Registration Statement (when
issued, delivered and paid for in accordance with the terms of the
Purchase Agreements) will be duly authorized, validly issued, fully paid
and non-assessable.
The opinion expressed herein is limited to the General Corporation
Law of the State of Delaware, as currently in effect.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the Prospectus forming part of the
Registration Statement. In giving such consent, we do not hereby admit
that we are in the category of such persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended.
Yours very truly,
Minkin & Snyder, a professional
corporation
By: /s/ James S. Altenbach
----------------------------------
Vice President
<PAGE>
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT, (the "Agreement") is made and entered into as of
the 1st day of August 1996 between BoxTop Interactive, Inc., a California
corporation (the "Company"), and Kevin Wall, an individual ("Employee").
WHEREAS, the Company desires to retain the services of Employee and
Employee desires provide such services for the term of this Agreement;
WHEREAS, the Company and the Employee desire that this Agreement supersede
and replace in their entirety any and all employment, consulting or similar
agreements, understandings, or arrangements (whether written or oral) that may
heretofore have been entered into between the Company and Employee (all of such
agreements, understandings, and arrangements being hereinafter collectively
referred to as the "Old Agreement").
WHEREAS, the Company and Employee have determined that it is in their
respective best interests to enter into this Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Employment.
----------
1.1 Term: Duties.
------------
(a) The Company hereby employs Employee, and Employee hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement, for the period commencing on the date hereof (the "Effective Date")
and ending on the fourth anniversary of the Effective Date, unless earlier
terminated pursuant to the terms of this Agreement (the "Employment Term");
provided, however, that the Company may engage Employee as a consultant pursuant
to Section 2 below on the terms and conditions stated therein.
(b) During the Employment Term, Employee shall devote (i)
substantially all of his business time, attention and skill, and (ii) all of his
time and efforts in the interactive media field, to the Company; and shall
perform faithfully, loyally and efficiently as the Chairman of the Board and
Chief Executive Officer of the Company. In such capacity, he shall have such
duties and responsibilities consistent therewith and such other duties and
responsibilities as may from time to time be assigned
1
<PAGE>
to or vested in him by the Board of Directors (as such term is hereinafter
defined).
1.2 Compensation: Benefits
----------------------
(a) In consideration of the services rendered to or for the benefit
of the Company hereunder by Employee during the Employment Term, the Company
shall, during the Employment Term, pay Employee a salary (the "Salary") at the
annual rate of $250,000 during the first year of the term, $275,000 during the
second year of the term, $302,500 during the third year of the term and $332,750
during the last year of the term. The Salary shall be payable in approximately
equal installments in accordance with the Company's normal payroll practices for
its employees, but such installments shall be payable not less frequently than
monthly. The Salary, and all other forms of compensation paid to Employee
hereunder shall be subject to all applicable income taxes, payroll taxes and
other amounts required to be withheld by the Company pursuant to applicable law.
Employee shall be solely responsible for all income taxes, payroll taxes and
other amounts imposed on Employee by reasons of any cash or non-cash
compensation and benefits provided to Employee pursuant to this Agreement.
(b) In addition to the Salary, during the Employment Term, Employee
shall be entitled to:
(i) Vacation at the rate of four weeks per annum during the
Employment Term. In addition, Employee shall be entitled to the usual national
holidays with pay and reasonable sick leave, in each case in accordance with and
subject to the Company's normal policies applicable to its senior executives.
Vacation shall be accrued ratably during each year of the Employment Term during
which Employee renders services hereunder, subject to the limitations set forth
in this Section. Any accrued but unused vacation may be carried forward into
subsequent years, provided, however, that accrued but unused vacation available
--------- -------
to Employee may not, at any time, exceed a total of six weeks. Vacation shall
not be earned during any period in which accrued but unused vacation time totals
six weeks and shall not again be earned until accrued but unused vacation time
again declines below six weeks. Such vacation shall be taken at such time or
times so as not to interfere with Employee's duties hereunder.
(ii) Fully vested options to purchase 250,000 shares of Common
Stock of the Company, exercisable for ten years from the date hereof at an
exercise price of $1.10 per share. With additional stock options to be issued on
the first, second
2
<PAGE>
and third anniversary of this Agreement, in the amount of 100,000 shares each.
(iii) An automobile allowance of $1,000 per month, plus
automobile insurance for such automobile.
(iv) A cellular telephone and service, an ISDN telephone line
and a home telephone line to be dedicated to business.
(v) While traveling on Company business the Employee shall be
entitled to travel by first class air travel and stay in first class hotels.
(vi) Participate in such employee benefit and incentive
compensation plans or programs as may from time to time be established by the
Company and as are applicable to the Company's senior executives, in each case
(A) to the extent approved by the Board of Directors and (B) subject to
compliance with all applicable laws.
1.3 Termination of Employment
-------------------------
(a) Death or Disability. The Employment Term shall terminate
-------------------
automatically upon Employee's death. If, in the good faith opinion of the Board
of Directors, Employee shall be prevented from performing his duties and
responsibilities hereunder as a result of physical or mental illness, injury or
other incapacity for a period for more than one hundred fifty days in the
aggregate in any twelve-month period, then, to the extent permitted by law, the
Company may, at the election and in the sole discretion of the Board of
Directors, terminate the Employment Term for "Disability," effective upon the
date specified for such termination in written notice thereof delivered to
Employee. In the event that Employee shall dispute the determination of the
Board of Directors as to the Disability of Employee, Employee may appeal the
determination to a panel of three doctors, one to be selected by Employee, one
to be selected by the Board of Directors and one to be selected by the doctors
chosen by Employee and the Board of Directors. The decision of the panel of
doctors shall be final. Any termination for Disability under this Agreement
shall not affect the rights, if any, that Employee may otherwise have under any
disability plan the Company may have in effect at the date of such termination
and in which Employee is then participating.
(b) Cause. The Company may, at the election and in the sole
-----
discretion of the Board of Directors, terminate the Employment Term for "Cause"
effective upon the date specified for termination in written notice thereof
delivered to Employee. For purposes of this Agreement, "Cause" shall mean that,
in the good faith judgment of the Board of Directors (not including Directors
3
<PAGE>
affiliated with or appointed by Employee), one or more of the following events
shall have occurred: (i) Employee's habitual or willful neglect of any of his
material duties and responsibilities hereunder provided that such neglect shall
continue for thirty days following written notice to Employee; (ii) Employee's
refusal to follow reasonable and lawful directions of the Board of Directors
provided that such refusal shall continue for thirty days following written
notice to Employee; (iii) Employee's conviction of, or pleading of nolo
----
contendere to, any felony of any type or any misdemeanor involving acts of moral
- ----------
turpitude or financial wrongdoing, including without limitation, bribery, fraud
or embezzlement; (iv) Employee's habitual or willful violation of any provision
of this Agreement provided that such violation shall continue for thirty days
after written notice to Employee; and (v) Employee's breach of any
confidentiality, nondisclosure, noncompetition, work for hire or other agreement
as may be entered into by Employee from time to time in connection with
Employee's employment by Company or (vi) a breach by Employee of his obligations
under that certain Letter Agreement dated as of June 5, 1996 among Employee, the
Company and certain other persons.
3. Covenants.
---------
3.1 Unauthorized Disclosure.
-----------------------
(a) Employee recognizes that his employment with the Company will
involve contact with information of substantial value to the Company, which is
not old and generally known in the trade and which gives the Company an
advantage over its competitors who do not know or use it, including, but not
limited to, techniques, designs, drawings, processes, inventions, developments,
equipment, prototypes, sales and customer information, and business and
financial information, relating to the business, products, practices or
techniques of the Company (hereinafter referred to as "Confidential
Information;" provided that Confidential Information shall not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by Employee, or (ii) becomes available to Employee
on a non-confidential basis from a person other than the Company, but only to
the extent Employee has no reason to believe that such person is bound by a
confidentiality agreement with the Company and is not otherwise believed by
Employee to be prohibited from transmitting the information to Employee.
Employee will at all times regard and preserve as confidential such Confidential
Information obtained by Employee from whatever source and will not, either
during Employee's employment or thereafter, publish or disclose any part of such
Confidential
4
<PAGE>
Information in any manner, or use the same except on behalf of the Company,
without the prior written consent of the Company.
(b) Inventions.
----------
(i) Employee will promptly disclose in writing to the officials
designated by the Company to receive such disclosures, complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product (hereinafter referred to as
"Inventions"), whether Employee considers them patentable or not, made,
developed, perfected, devised, conceived or reduced to practice by Employee,
either solely or in collaboration with others, during the period of his
employment by the Company, and up to and including a period of twelve (12)
months after the Employment Term, whether or not during regular working hours,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company.
(ii) Employee understands that any Inventions made, developed,
perfected, devised, conceived or reduced to practice by Employee during the
period of his employment by the Company, and any other Inventions made,
developed, perfected, devised, conceived or reduced to practice by Employee
during said period of twelve (12) months after the Employment Term, if based
upon the Confidential Information of the Company, relating either directly or
indirectly to the business, products, practices or techniques of the Company or
to the Company's actual or demonstrably anticipated research or development, or
resulting from any work performed by Employee for the Company, are the sole
property of the Company, and hereby assign and agree to assign to the Company
its successors and assigns, all of Employee's right, title and interest in and
to said Inventions, and any patent applications or Letters Patent thereon.
NOTIFICATION
------------
This Agreement does not apply to an invention for which no equipment,
supplies, facility, or trade secret information of the Company was
used and which was developed entirely on Employee's own time, and (a)
which does not relate (1) to the business of the Company or (2) to the
Company's actual or demonstrably anticipated research or development,
or (b) which does not result from any work performed by Employee for
the Company, as defined and provided by Section 2870 of the California
Labor code. A copy of this Section 2870 is attached hereto as
Appendix A.
----------
5
<PAGE>
(iii) Employee will, at any time during his employment or thereafter,
upon request and without further compensation therefore, but at no expense to
Employee, do all lawful acts, including the execution of papers and oaths and
the giving of testimony, that in the opinion of the Company, its successors or
assigns, may be necessary or desirable for obtaining, sustaining, reissuing or
enforcing Letters Patent in the United States and throughout the world for said
Inventions, and for perfecting, recording or maintaining the title of the
Company, its successors and assigns, to said Inventions and to any patent
applications made and any Letters Patent granted for said Inventions in the
United States and throughout the world. If after the Employment Term the Company
shall require Employee to travel, the Company shall cooperate with Employee to
schedule such travel time at a time reasonably satisfactory to Employee.
(c) Other Intellectual Property
---------------------------
(i) Employee will also disclose in writing to the officials
designated by the Company to receive such disclosures, complete information
concerning all other intellectual property, including, but not limited to,
original works of authorship, trademarks, service marks, and trade secrets,
(hereinafter sufficient to as "other intellectual property") whether Employee
considers them intellectual property or not, which is made, developed, created,
devised, conceived, perfected, reduced to practice, or discovered by Employee,
either solely or in collaboration with others, during the period of his
employment by the Company, and up to and including a period of twelve (12)
months after the Employment Term, whether or not during regular working hours,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company.
(ii) All copyrightable works with regard to paragraph 3.1(c)
(i) above, will be deemed "work for hire" as defined in (S)101 of the Federal
Copyright Act and such copyrightable works shall exclusively belong to the
Company. In the event that (S)101 of the Copyright Act is found to be
inapplicable, Employee will assign all right, title and interest in and to such
copyrightable works to the Company. In addition, Employee will, upon request and
without further compensation therefore, but at no expense to Employee, assist
the Company in obtaining all registrations for such copyrights pursuant to
Section 3.1(c) (iii) below.
(iii) Employee will, at any time during his employment, or
thereafter, upon request and without further compensation therefore, but at no
expense to Employee, do all lawful acts, including the execution of papers and
oaths and the
6
<PAGE>
giving of testimony, that in the opinion of the Company, its successors or
assigns, may be necessary or desirable for obtaining registrations for other
intellectual property, including, but not limited to trademarks, service marks,
and copyrights, in the United States and throughout the world. If after the
Employment Term the Company shall require Employee to travel, the Company shall
cooperate with Employee to schedule such travel time at a time reasonably
satisfactory to Employee.
(d) As to any Inventions or other intellectual property which were
made, developed, perfected, devised, conceived or reduced to practice by
Employee during the period of his employment by the Company, and up to and
including a period of twelve (12) months after the Employment Term, but which
are claimed for any reason to belong to an entity or person other than the
Company, Employee will promptly after receiving notice of such claim disclose
the same in writing to the Company. Within twenty (20) days thereafter, the
Company shall claim ownership of such Inventions or other intellectual property
under the terms of this Agreement. If the Company makes such a claim, Employee
understands that any controversy relating to such claim will be settled and
determined by binding arbitration conducted in Los Angeles County, California,
in accordance with the rules of the American Arbitration Association then
existing.
3.2 Prohibited and Competitive Activities. Employee and the Company
-------------------------------------
recognize that due to the nature of Employee's engagement hereunder and the
relationship of Employee to the Company, both prior and subsequent to the date
of this Agreement, Employee has had and will have access to, has and will
acquire, and has assisted and may continue to assist in developing confidential
and proprietary information relating to the business and operations of the
Company and its affiliates, including, but not limited to Confidential
Information. Employee acknowledges that such information has been and will be
of central importance to the business of the Company and its affiliates and that
disclosure of this information to, or its use by others can and will cause
substantial loss to the Company. Employee and the Company also recognize that
an important part of Employee's duties will be to develop good will for the
Company and its affiliates through his personal contact with Clients (as defined
below), employees and others having business relationships with the Company, and
that there is a danger that this good will, a proprietary asset of the Company,
may follow Employee if and when his relationship with the Company is terminated.
Accordingly, Employee will perform as follows:
(a) Prohibited Activities. Employee will not at any time during the
---------------------
Employment Term: (i) (other than in the course of his employment) disclose or
furnish to any other person or, directly or indirectly, use for his own account
or the account of
7
<PAGE>
any other person, any Confidential Information, no matter from where or in
what manner he may have acquired such Confidential Information, and he shall
retain all such Confidential Information in trust for the benefit of the
Company, its affiliates and the successors and assigns of any of them, (ii)
directly or indirectly through one or more intermediaries, solicit for
employment or recommend to any subsequent employer of Employee the solicitation
for employment of, any person who, at the time of such solicitation, is employed
by the Company or any affiliate thereof, or (iii) directly or indirectly,
whether for his own account or for the account of any other person, solicit,
divert, or endeavor to entice away from the Company or any affiliate thereof, or
otherwise engage in any activity intended to terminate, disrupt, or interfere
with, the Company's or any of its affiliate's relationship with, Clients or
other business relationships of the Company or any affiliate thereof (any
activity described in clause (i), (ii), (iii) of this Section 3.2(a) being
herein referred to as a "Prohibited Activity"); provided, however, that if
--------- -------
Employee is legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt or suffer other similar censure or
penalty, then the disclosure to such tribunal of only those Confidential
Information which are legally required to be disclosed shall not constitute a
Prohibited Activity. Employee shall give the Company as much advance notice of
such disclosure as is practicable and reasonable.
The term, "Clients," shall mean those persons who, at any time during
Employee's course of employment with the Company (including; but without
limitation, prior to the date of this Agreement) are or were clients or
customers of the Company or any affiliate thereof or any predecessor of any of
the foregoing.
(b) Non-Competition. By and in consideration of the Company's
---------------
entering into this Agreement and providing the Salary, and benefits (including,
without limitation, stock options pursuant to a Company stock option plan) to
the Employee, and further in consideration of the Employee's continued exposure
to the confidential and proprietary information of the Company (including, but
without limitation, the Company's Confidential Information), the Employee will
not, during the Employment Term engage in any Competitive Activity. The term
"Competitive Activity" means engaging in any of the following activities: (i)
serving as a director of any Competitor (as defined below), (ii) directly or
indirectly through one or more intermediaries, either (X) controlling any
Competitor or (Y) owning any equity or debt interests in any Competitor (other
than equity or debt interests which are publicly traded and, at the time of any
acquisition, do not exceed 5% of the particular class of interests outstanding)
(it being understood that, if interests in any Competitor are owned by an
investment vehicle or other entity in which the
8
<PAGE>
Employee owns an equity interest, a portion of the interests in such Competitor
owned by such entity shall be attributed to the Employee, such portion
determined by applying the percentage of the equity interest in such entity
owned by the Employee to the interests in such Competitor owned by such entity),
(iii) employment by (including serving as an officer, employee or partner of),
providing consulting services to (including, without limitation, as an
independent contractor) or, managing or operating the business or affairs of,
any Competitor or (iv) participating in the ownership, management, operation or
control of or being connected in any manner with any Competitor. The term
"Competitor" as used herein means any person (other than the Company or any
affiliate thereof) that directly or indirectly engages in the interactive media
business or any other line of business in which the Company or any subsidiary is
engaged during the Employment Term in the United States or any political
subdivision thereof, or in any other territory or any territory of the world in
which the Company or any subsidiary thereof has established a subsidiary or
sales or representative office or has retained a sales representative or
distributor. Notwithstanding the above, the term Competitor shall exclude the
business conducted by BoxTop Entertainment, Inc. including Television shows and
specials, concerts and one of a kind specials and the related world wide
distribution of any of the above.
(c) Adaption Rights. The Company shall have the express right to
---------------
edit, revise and adapt any Invention and to cause others to edit, revise and
adapt any Invention as the Board of Directors may deem appropriate.
(d) Waiver of Moral Rights. The Employee hereby expressly waives any
----------------------
"artist's rights" or "moral rights" which the Employee might otherwise have in
any Invention.
(e) Insurance. During the Employment Term, the Company shall at its
---------
expense, to apply for, obtain and maintain insurance on the life of Employee in
the amount of $1,250,000, for the sole benefit of his spouse (which shall be the
sole payee of such insurance). Employee shall cooperate fully in connection with
the Company obtaining such insurance. The Company at its expense, shall obtain
disability insurance in an amount acceptable to the Employee.
4. Power of Attorney.
-----------------
Employee will designate and appoint the Company and its duly authorized
officers and agents as its agents and attorneys-in-fact to execute and file any
certificates, applications or documents and to do all lawful acts necessary to
protect the Company's rights in any Invention and other intellectual property.
Employee expressly acknowledges that the foregoing
9
<PAGE>
power of attorney is coupled with an interest and is therefore irrevocable and
shall survive the termination of Employee's engagement by the Company for any
reason.
5. Miscellaneous.
-------------
5.1 Binding Effect: Assignment. This Agreement shall inure to the benefit
--------------------------
of and be binding upon the parties hereto and their respective heirs, executors,
representatives, estates, successors and assigns, including any successor or
assign to all or substantially all of the business and/or assets of the Company,
whether direct or indirect, by purchase, merger, consolidation, acquisition of
stock, or otherwise; provided, however, that neither the Employee nor any
-------- -------
beneficiary nor any legal representative of the Employee, may assign all or any
portion of the Employee's rights or obligations under this Agreement without the
prior written consent of the Board of Directors.
5.2 Notices. Whenever notice is required to be given under the terms of
-------
this Agreement, such notice shall be in writing and delivered by hand or by
registered or certified mail, postage prepaid, or transmitted by telecopier,
addressed as follows:
(a) If to the Company, to it at:
BoxTop Interactive, Inc.
9014 Melrose Avenue
Los Angeles, California 90069
Attention: Chief Executive Officer
Telecopy No: 310.246.9995
(b) If to the Employee, to him at:
Kevin Wall
1670 No. Dohney Dr
Los Angeles, California 90069
or to such other address as either party shall have specified for itself from
time to time to the other party in writing. All such notices shall be
conclusively deemed to be received and shall be effective, if sent by hand
delivery, upon receipt, or if sent by registered or certified may, upon receipt,
or if transmitted by telecopier.
5.3 Governing Law. This Agreement and the rights and obligations of the
-------------
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State
10
<PAGE>
of California without giving effect to the conflicts of law principles thereof.
5.4 Severability. If any term or other provision of this Agreement, or
------------
any application thereof to any circumstance is invalid, illegal or incapable of
being enforced by any rule of law, or public policy in whole or in part, such
provision or application shall to that extent be severable and shall not affect
any of the other provisions or applications of this Agreement.
5.5 Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties hereto with respect to the subject matter hereof and supersedes and
replaces in its entirety the Old Agreement.
5.6 Existing Agreement. Employee confirms and acknowledges that he has no
------------------
claims against the Company (or its affiliates) under the Old Agreement.
5.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original but all of which
together shall be deemed to constitute one and the same instrument.
5.8 Plurals; Gender; Headings; Sections. In this Agreement, unless the
-----------------------------------
context otherwise requires, words in the singular number or in the plural number
shall each include the singular number and the plural number, and the use of any
gender shall include all genders. The headings in this Agreement are for
reference purpose only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement. All references to sections, subsections and
paragraphs herein shall be deemed to refer to sections, subsections or
paragraphs of this Agreement unless the context otherwise requires.
5.9 Further Assurances. Each party hereto shall do and perform or cause
------------------
to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and documents as any
other party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5.10 Amendment and Modification. This Agreement may not be amended, nor
--------------------------
may any provision hereof be modified, waived or discharged, nor may any breach
hereof be waived, except by an instrument in writing duly signed by the party to
be charged. The written approval of the Board of Directors shall be required
before any material amendment, modification, waiver or discharge
11
<PAGE>
contemplated by such Sections shall be effective as between the Company and
Employee.
5.11 Waiver. No provision of this Agreement may be waived or discharged
------
unless such waiver or discharge is agreed to in writing and signed by the
affected party. No such waiver or discharge by any party hereto at any time, or
any waiver or discharge any breach by any party hereto of any provision of this
Agreement to be performed by such party, shall be deemed to waive or discharge
any other provisions or be a waiver or discharge of any breach of any other
provisions, respectively, at the same or at any prior or subsequent time.
5.12 Withholding. The Company shall have the right to deduct from any
-----------
amounts payable hereunder or otherwise any taxes or other amounts to the extent
required by law to be withheld.
5.13 Certain Definitions.
-------------------
For purposes of this agreement:
(a) the term "affiliate" shall mean, with respect to any person, any
other person directly or indirectly controlling, controlled by, or under common
control with such person; and
(b) the term "person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
5.14 Arbitration.
-----------
(a) Except as set forth in this Section 5.14, all questions or disputes
arising out of or relating to this Agreement or any breach thereof shall be
finally settled by binding arbitration under the rules of the American
Arbitration Association and judgment upon such award may be entered in any court
having jurisdiction thereof. Any such arbitration proceeding shall take place
in Los Angeles County, California. THE PARTIES EACH HEREBY WAIVE THE RIGHT TO
TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY BREACH THEREOF.
(b) Employee acknowledges that the Company is relying for its protection
upon the existence and validity of, among other things, Sections 3.1, 3.2 and 4
of this Agreement, and that irreparable injury (which would not be adequately
compensated by an award of damages) will result to the Company from any
violation or continuing violation of such provisions. Accordingly, Employee
hereby agrees that in addition to the
12
<PAGE>
remedies available to the Company by law or under this Agreement, the Company
shall be entitled to seek and obtain, from a court of competent jurisdiction,
such equitable relief (including injunctive relief) as may be permitted by law
for violations of Sections 3.1, 3.2 and 4 of this Agreement. Any such action
shall be brought in the state courts presiding in the County of Los Angeles or
in the Federal Courts in the Central District of California. Each party hereby
consents to personal jurisdiction in such courts and waives any objection to
such venue.
5.15 Attorneys' Fees. In any dispute arising out of this Agreement the
---------------
prevailing party shall be entitled to recover reasonable attorneys' fees and
expenses and other costs in addition to any other relief awarded.
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto, all as of the date first above written.
BOXTOP INTERACTIVE, INC., a
California corporation
BY: /s/ Nancy Smalley
------------------------------
Name: Nancy Smalley
Title: Secretary
/s/ Kevin Wall
---------------------------------
Kevin Wall, an individual
13
<PAGE>
Appendix A
NOTIFICATION TO EMPLOYEE
Set forth below is the text of Section 2870, 2871 and 2872 of the
California Labor Code, as published in West's Ann. Cal. Labor Code (1989) and
West's Ann. Cal. Labor Code (1994 Supp.) :
(S) 2870. EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
(c) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(d) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
(S) 2871. CONDITIONS OF EMPLOYMENT OR CONTINUED EMPLOYMENT; DISCLOSURE OF
INVENTIONS
No employer shall require a provision made void and unenforceable by
Section 2870 as a condition of employment or continued employment. Nothing in
this article shall be construed to forbid or restrict the right of an employer
to provide in contracts or employment for disclosure, provided that any such
disclosures be received in confidence, of all of the employee's inventions made
solely or jointly with others during the term of his or her employment, a review
process by the employer to determine such issues as may arise, and for full
title to certain patients and inventions to be in the United States, as required
by the contracts between the employer and the United States or any of its
agencies.
(S) 2872. NOTICE TO EMPLOYEE; BURDEN OF PROOF
If an employee agreement entered into after January 1, 1980, contains a
provision requiring the employee to assign or offer to assign any of his or her
rights in any invention to his or her
A-1
<PAGE>
employer, the employer must also, at the time the agreement is made, provide a
written notification to the employee that the agreement does not apply to an
invention which qualifies fully under the provisions of Section 2870. In any
suit or action arising thereunder, the burden of proof shall be on the employee
claiming the benefit of its provisions.
A-2
<PAGE>
IXL HOLDINGS, INC.
MAY 30, 1997
Mr. Kevin Wall
BoxTop Interactive, Inc.
10960 Wilshire Boulevard
Suite #1550
Los Angeles, California 90024
Re: Merger of BoxTop Interactive, Inc. ("BII") into IXL Merger Corp. III,
Inc. ("Sub") (the "Merger")
Dear Kevin:
With regard to the above-referenced transaction, IXL Holding, Inc.
("Parent") hereby agrees as follows:
1. After the consummation of the Merger and thereafter on an on-going
basis, Parent will consult with you in good faith regarding its
international operations.
2. The Employment Agreement dated August 1, 1996 between BoxTop
Interactive, Inc. (a copy of which is attached hereto as Exhibit A)
---------
and you will be assumed by Sub (to be known after the Merger as
"BoxTop Interactive, Inc."), and will continue to govern the terms of
your employment; provided, however, that, notwithstanding anything to
the contrary contained therein, you will report to U. Bertram Ellis,
Jr.
3. Contemporaneously with the consummation of the Merger, Parent will
loan you $50,000, to be repaid by you, together with interest thereon
at the rate of 8% per annum, on the date one year from the date
hereof. All other terms of the loan shall be set forth in a promissory
note, dated of even date herewith, for the benefit of Parent (the
"Note"). Parent hereby agrees that the Note shall be treated as cash
of BII for purposes of calculating the amount of "BII Debt" (as such
term is defined in the Agreement and Plan of Merger, dated of even
date herewith, between Parent, Sub, BII and the BII shareholders),
reducing the amount of BII Debt.
<PAGE>
4. The Parties hereby agree and acknowledge that, immediately after the
consummation of the Merger, there will be warrants outstanding to
purchase 2,309 shares of Class B Common Stock of Parent (the "IXL
Warrants"). If, prior to November 30, 1997, you are able to cause a
reduction in the outstanding number of IXL Warrants, the total Merger
consideration shall be adjusted based on the agreement of the parties.
If this letter accurately reflects your understanding of our
agreement, please so indicate by executing this letter on the signature line
below.
SINCERELY,
IXL HOLDINGS, INC.
By: /s/ James V. Sandry
-----------------------------
James V. Sandry
Executive Vice President
Confirmed and agreed this 30th day of May, 1997
/s/ Kevin Wall
- ------------------------------
Kevin Wall
IXL HOLDINGS, INC.
By: /s/ James V. Sandry
--------------------------------
James V. Sandry, Executive Vice
President
<PAGE>
EXHIBIT A
---------
EMPLOYMENT AGREEMENT
--------------------
<PAGE>
EXHIBIT A
EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT, (the "Agreement") is made and entered into as of
the 15th day of August 1996 between BoxTop Interactive, Inc., a California
corporation (the "Company"), and Kevin Wall, an individual ("Employee")
WHEREAS, the Company desires to retain the services of Employee and
Employee desires provide such services for the term of this Agreement;
WHEREAS, the Company and the Employee desire that this Agreement supersede
and replace in their entirety any and all employment, consulting or similar
agreements, understandings, or arrangements (whether written or oral) that may
heretofore have been entered into between the Company and Employee (all of such
agreements, understandings, and arrangements being hereinafter collectively
referred to as the "Old Agreement")
WHEREAS, the Company and Employee have determined that in their respective
best interests to enter into this Agreement upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Employment.
----------
1. 1 Term Duties.
------------
(a) The Company hereby employs Employee, and Employee hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement, for the period commencing on the date hereof (the "Effective Date")
and ending on the fourth anniversary of the Effective Date, unless earlier
terminated pursuant to the terms of this Agreement (the " Employment Term");
provided, however, that the Company may engage Employee as a consultant pursuant
to Section 2 below on the terms and conditions stated therein.
(b) During the Employment Term, Employee shall devote (i)
substantially all of his business time, attention and skill, and (ii) all of his
time and efforts in the interactive media field, to the Company; and shall
perform faithfully, loyally and efficiently as the Chairman of the Board and
Chief Executive Officer of the Company. In such capacity, he shall have such
duties and responsibilities consistent therewith and such other duties and
responsibilities as may from time to time be assigned
19
<PAGE>
to or vested in him by the Board of Directors (as such term is hereinafter
defined).
1.2 Compensation: Benefits
----------------------
(a) In consideration of the services rendered to or for the benefit
of the Company hereunder by Employee during the Employment Term, the Company
shall, during the Employment Term, pay Employee a salary (the "Salary") at the
annual rate of $250,000 during the first year of the term, $275,000 during the
second year of the term, $302,500 during the third year of the term and $332,750
during the last year of the term. The Salary shall be payable in approximately
equal installments in accordance with the Company's normal payroll practices for
its employees, but such installments shall be payable not less frequently than
monthly. The Salary, and all other forms of compensation paid to Employee
hereunder shall be subject to all applicable income taxes, payroll taxes and
other amounts required to be withheld by the Company pursuant to applicable law.
Employee shall be solely responsible for all income taxes, payroll taxes and
other amounts imposed on Employee by reasons of any cash or non-cash
compensation and benefits provided to Employee pursuant to this Agreement.
(b) In addition to the Salary, during the Employment Term, Employee
shall be entitled to:
(i) Vacation at the rate of four weeks per annum during the
Employment Term. In addition, Employee shall be entitled to the usual national
holidays with pay and reasonable sick leave, in each case in accordance with and
subject to the Company's normal policies applicable to its senior executives.
Vacation shall be accrued ratably during each year of the Employment Term during
which Employee renders services hereunder, subject to the limitations set forth
in this Section. Any accrued but unused vacation may be carried forward into
subsequent years, provided, however, that accrued but unused vacation available
--------- -------
to Employee may not, at any time, exceed a total of six weeks. Vacation shall
not be earned during any period in which accrued but unused vacation time totals
six weeks and shall not again be earned until accrued but unused vacation time
again declines below six weeks. Such vacation shall be taken at such time or
times so as not to interfere with Employee's duties hereunder.
(ii) Fully vested options to purchase 250,000 shares of Common
Stock of the Company, exercisable for ten years from the date hereof at an
exercise price of $1.10 per share. With additional stock options to be issued on
the first, second
2
<PAGE>
and third anniversary of this Agreement, in the amount of 100,000 shares each.
(iii) An automobile allowance of $1,000 per month, plus
automobile insurance for such automobile.
(iv) A cellular telephone and service, an ISDN telephone line
and a home telephone line to be dedicated to business.
(v) While traveling on Company business the Employee shall be
entitled to travel by first class air travel and stay in first class hotels.
(vi) Participate in such employee benefit and incentive
compensation plans or programs as may from time to time be established by the
Company and as are applicable to the Company's senior executives, in each case
(A) to the extent approved by the Board of Directors and (B) subject to
compliance with all applicable laws.
1.3 Termination of Employment
-------------------------
(a) Death or Disability. The Employment Term shall terminate
-------------------
automatically upon Employee's death. If, in the good faith opinion of the Board
of Directors, Employee shall be prevented from performing his duties and
responsibilities hereunder as a result of physical or mental illness, injury or
other incapacity for a period for more than one hundred fifty days in the
aggregate in any twelve-month period, then, to the extent permitted by law, the
Company may, at the election and in the sole discretion of the Board of
Directors, terminate the Employment Term for "Disability," effective upon the
date specified for such termination in written notice thereof delivered to
Employee. In the event that Employee shall dispute the determination of the
Board of Directors as to the Disability of Employee, Employee may appeal the
determination to a panel of three doctors, one to be selected by Employee, one
to be selected by the Board of Directors and one to be selected by the doctors
chosen by Employee and the Board of Directors. The decision of the panel of
doctors shall be final. Any termination for Disability under this Agreement
shall not affect the rights, if any, that Employee may otherwise have under any
disability plan the Company may have in effect at the date of such termination
and in which Employee is then participating.
(b) Cause. The Company may, at the election and in the sole
-----
discretion of the Board of Directors, terminate the Employment Term for "Cause"
effective upon the date specified for termination in written notice thereof
delivered to Employee. For purposes of this Agreement, "Cause" shall mean that,
in the good faith judgment of the Board of Directors (not including Directors
3
<PAGE>
affiliated with or appointed by Employee), one or more of the following events
shall have occurred: (i) Employee's habitual or willful neglect of any of his
material duties and responsibilities hereunder provided that such neglect shall
continue for thirty days following written notice to Employee; (ii) Employee's
refusal to follow reasonable and lawful directions of the Board of Directors
provided that such refusal shall continue for thirty days following written
notice to Employee; (iii) Employee's conviction of, or pleading of nolo
----
contendere to, any felony of any type or any misdemeanor involving acts of moral
- ----------
turpitude or financial wrongdoing, including without limitation, bribery, fraud
or embezzlement; (iv) Employee's habitual or willful violation of any provision
of this Agreement provided that such violation shall continue for thirty days
after written notice to Employee; and (v) Employee's breach of any
confidentiality, nondisclosure, noncompetition, work for hire or other agreement
as may be entered into by Employee from time to time in connection with
Employee's employment by Company or (vi) a breach by Employee of his obligations
under that certain Letter Agreement dated as of June 5, 1996 among Employee, the
Company and certain other persons.
3. Covenants.
---------
3.1 Unauthorized Disclosure.
-----------------------
(a) Employee recognizes that his employment with the Company will
involve contact with information of substantial value to the Company, which is
not old and generally known in the trade and which gives the Company an
advantage over its competitors who do not know or use it, including, but not
limited to, techniques, designs, drawings, processes, inventions, developments,
equipment, prototypes, sales and customer information, and business and
financial information, relating to the business, products, practices or
techniques of the Company (hereinafter referred to as "Confidential
Information;" provided that Confidential Information shall not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by Employee, or (ii) becomes available to Employee
on a non-confidential basis from a person other than the Company, but only to
the extent Employee has no reason to believe that such person is bound by a
confidentiality agreement with the Company and is not otherwise believed by
Employee to be prohibited from transmitting the information to Employee.
Employee will at all times regard and preserve as confidential such Confidential
Information obtained by Employee from whatever source and will not, either
during Employee's employment or thereafter, publish or disclose any part of such
Confidential
4
<PAGE>
Information in any manner, or use the same except on behalf of the Company,
without the prior written consent of the Company.
(b) Inventions.
----------
(i) Employee will promptly disclose in writing to the officials
designated by the Company to receive such disclosures, complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product (hereinafter referred to as
"Inventions"), whether Employee considers them patentable or not, made,
developed, perfected, devised, conceived or reduced to practice by Employee,
either solely or in collaboration with others, during the period of his
employment by the Company, and up to and including a period of twelve (12)
months after the Employment Term, whether or not during regular working hours,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company.
(ii) Employee understands that any Inventions made, developed,
perfected, devised, conceived or reduced to practice by Employee during the
period of his employment by the Company, and any other Inventions made,
developed, perfected, devised, conceived or reduced to practice by Employee
during said period of twelve (12) months after the Employment Term, if based
upon the Confidential Information of the Company, relating either directly or
indirectly to the business, products, practices or techniques of the Company or
to the Company's actual or demonstrably anticipated research or development, or
resulting from any work performed by Employee for the Company, are the sole
property of the Company, and hereby assign and agree to assign to the Company
its successors and assigns, all of Employee's right, title and interest in and
to said Inventions, and any patent applications or Letters Patent thereon.
NOTIFICATION
------------
This Agreement does not apply to an invention for which no equipment,
supplies, facility, or trade secret information of the Company was
used and which was developed entirely on Employee's own time, and (a)
which does not relate (1) to the business of the Company or (2) to the
Company's actual or demonstrably anticipated research or development,
or (b) which does not result from any work performed by Employee for
the Company, as defined and provided by Section 2870 of the California
Labor code. A copy of this Section 2870 is attached hereto as
Appendix A.
----------
5
<PAGE>
(iii) Employee will, at any time during his employment or thereafter,
upon request and without further compensation therefore, but at no expense to
Employee, do all lawful acts, including the execution of papers and oaths and
the giving of testimony, that in the opinion of the Company, its successors or
assigns, may be necessary or desirable for obtaining, sustaining, reissuing or
enforcing Letters Patent in the United States and throughout the world for said
Inventions, and for perfecting, recording or maintaining the title of the
Company, its successors and assigns, to said Inventions and to any patent
applications made and any Letters Patent granted for said Inventions in the
United States and throughout the world. If after the Employment Term the Company
shall require Employee to travel, the Company shall cooperate with Employee to
schedule such travel time at a time reasonably satisfactory to Employee.
(c) Other Intellectual Property
---------------------------
(i) Employee will also disclose in writing to the officials
designated by the Company to receive such disclosures, complete information
concerning all other intellectual property, including, but not limited to,
original works of authorship, trademarks, service marks, and trade secrets,
(hereinafter sufficient to as "other intellectual property") whether Employee
considers them intellectual property or not, which is made, developed, created,
devised, conceived, perfected, reduced to practice, or discovered by Employee,
either solely or in collaboration with others, during the period of his
employment by the Company, and up to and including a period of twelve (12)
months after the Employment Term , whether or not during regular working hours,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company.
(ii) All copyrightable works with regard to paragraph 3.1(c) (i)
above, will be deemed "work for hire" as defined in (S)101 of the Federal
Copyright Act and such copyrightable works shall exclusively belong to the
Company. In the event that (S)101 of the Copyright Act is found to be
inapplicable, Employee will assign all right, title and interest in and to such
copyrightable works to the Company. In addition, Employee will, upon request and
without further compensation therefore, but at no expense to Employee, assist
the Company in obtaining all registrations for such copyrights pursuant to
Section 3.1(c) (iii) below.
(iii) Employee will, at any time during his employment, or
thereafter, upon request and without further compensation therefore, but at no
expense to Employee, do all lawful acts, including the execution of papers and
oaths and the
6
<PAGE>
giving of testimony, that in the opinion of the Company, its successors or
assigns, may be necessary or desirable for obtaining registrations for other
intellectual property, including, but not limited to trademarks, service marks,
and copyrights, in the United States and throughout the world. If after the
Employment Term the Company shall require Employee to travel, the Company shall
cooperate with Employee to schedule such travel time at a time reasonably
satisfactory to Employee.
(d) As to any Inventions or other intellectual property which were
made, developed, perfected, devised, conceived or reduced to practice by
Employee during the period of his employment by the Company, and up to and
including a period of twelve (12) months after the Employment Term , but which
are claimed for any reason to belong to an entity or person other than the
Company, Employee will promptly after receiving notice of such claim disclose
the same in writing to the Company. Within twenty (20) days thereafter, the
Company shall claim ownership of such Inventions or other intellectual property
under the terms of this Agreement. If the Company makes such a claim, Employee
understands that any controversy relating to such claim will be settled and
determined by binding arbitration conducted in Los Angeles County, California,
in accordance with the rules of the American Arbitration Association then
existing.
3.2 Prohibited and Competitive Activities. Employee and the Company
-------------------------------------
recognize that due to the nature of Employee's engagement hereunder and the
relationship of Employee to the Company, both prior and subsequent to the date
of this Agreement, Employee has had and will have access to, has and will
acquire, and has assisted and may continue to assist in developing confidential
and proprietary information relating to the business and operations of the
Company and its affiliates, including, but not limited to Confidential
Information. Employee acknowledges that such information has been and will be
of central importance to the business of the Company and its affiliates and that
disclosure of this information to, or its use by others can and will cause
substantial loss to the Company. Employee and the Company also recognize that
an important part of Employee's duties will be to develop good will for the
Company and its affiliates through his personal contact with Clients (as defined
below), employees and others having business relationships with the Company, and
that there is a danger that this good will, a proprietary asset of the Company,
may follow Employee if and when his relationship with the Company is terminated.
Accordingly, Employee will perform as follows:
(a) Prohibited Activities. Employee will not at any time during the
---------------------
Employment Term: (i) (other than in the course of his employment) disclose or
furnish to any other person or, directly or indirectly, use for his own account
or the account of
7
<PAGE>
any other person, any Confidential Information, no matter from where or in
what manner he may have acquired such Confidential Information, and he shall
retain all such Confidential Information in trust for the benefit of the
Company, its affiliates and the successors and assigns of any of them, (ii)
directly or indirectly through one or more intermediaries, solicit for
employment or recommend to any subsequent employer of Employee the solicitation
for employment of, any person who, at the time of such solicitation, is employed
by the Company or any affiliate thereof, or (iii) directly or indirectly,
whether for his own account or for the account of any other person, solicit,
divert, or endeavor to entice away from the Company or any affiliate thereof, or
otherwise engage in any activity intended to terminate, disrupt, or interfere
with, the Company's or any of its affiliate's relationship with, Clients or
other business relationships of the Company or any affiliate thereof (any
activity described in clause (i), (ii), (iii) of this Section 3.2(a) being
herein referred to as a "Prohibited Activity") ; provided, however, that if
--------- -------
Employee is legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt or suffer other similar censure or
penalty, then the disclosure to such tribunal of only those Confidential
Information which are legally required to be disclosed shall not constitute a
Prohibited Activity. Employee shall give the Company as much advance notice of
such disclosure as is practicable and reasonable.
The term, "Clients," shall mean those persons who, at any time during
Employee's course of employment with the Company (including; but without
limitation, prior to the date of this Agreement) are or were clients or
customers of the Company or any affiliate thereof or any predecessor of any of
the foregoing.
(b) Non-Competition. By and in consideration of the Company's
---------------
entering into this Agreement and providing the Salary, and benefits (including,
without limitation, stock options pursuant to a Company stock option plan) to
the Employee, and further in consideration of the Employee's continued exposure
to the confidential and proprietary information of the Company (including, but
without limitation, the Company's Confidential Information), the Employee will
not, during the Employment Term engage in any Competitive Activity. The term
"Competitive Activity" means engaging in any of the following activities: (i)
serving as a director of any Competitor (as defined below), (ii) directly or
indirectly through one or more intermediaries, either (X) controlling any
Competitor or (Y) owning any equity or debt interests in any Competitor (other
than equity or debt interests which are publicly traded and, at the time of any
acquisition, do not exceed 5% of the particular class of interests outstanding)
(it being understood that, if interests in any Competitor are owned by an
investment vehicle or other entity in which the
8
<PAGE>
Employee owns an equity interest, a portion of the interests in such Competitor
owned by such entity shall be attributed to the Employee, such portion
determined by applying the percentage of the equity interest in such entity
owned by the Employee to the interests in such Competitor owned by such entity),
(iii) employment by (including serving as an officer, employee or partner of),
providing consulting services to (including, without limitation, as an
independent contractor) or, managing or operating the business or affairs of,
any Competitor or (iv) participating in the ownership, management, operation or
control of or being connected in any manner with any Competitor. The term
"Competitor" as used herein means any person (other than the Company or any
affiliate thereof) that directly or indirectly engages in the interactive media
business or any other line of business in which the Company or any subsidiary is
engaged during the Employment Term in the United States or any political
subdivision thereof, or in any other territory or any territory of the world in
which the Company or any subsidiary thereof has established a subsidiary or
sales or representative office or has retained a sales representative or
distributor. Notwithstanding the above, the term Competitor shall exclude the
business conducted by BoxTop Entertainment, Inc. including Television shows and
specials, concerts and one of a kind specials and the related world wide
distribution of any of the above.
(c) Adaption Rights. The Company shall have the express right to edit,
---------------
revise and adapt any Invention and to cause others to edit, revise and adapt any
Invention as the Board of Directors may deem appropriate.
(d) Waiver of Moral Rights. The Employee hereby expressly waives any
----------------------
"artist's rights" or "moral rights" which the Employee might otherwise have in
any Invention.
(e) Insurance. During the Employment Term, the Company shall at its
---------
expense, to apply for, obtain and maintain insurance on the life of Employee in
the amount of $1,250,000, for the sole benefit of his spouse (which shall be the
sole payee of such insurance). Employee shall cooperate fully in connection with
the Company obtaining such insurance. The Company at its expense, shall obtain
disability insurance in an amount acceptable to the Employee.
4. Power of Attorney.
-----------------
Employee will designate and appoint the Company and its duly authorized
officers and agents as its agents and attorneys-in-fact to execute and file any
certificates, applications or documents and to do all lawful acts necessary to
protect the Company's rights in any Invention and other intellectual property.
Employee expressly acknowledges that the foregoing
9
<PAGE>
power of attorney is coupled with an interest and is therefore irrevocable and
shall survive the termination of Employee's engagement by the Company for any
reason.
5. Miscellaneous.
-------------
5.1 Binding Effect: Assignment. This Agreement shall inure to the benefit
--------------------------
of and be binding upon the parties hereto and their respective heirs, executors,
representatives, estates, successors and assigns, including any successor or
assign to all or substantially all of the business and/or assets of the Company,
whether direct or indirect, by purchase, merger, consolidation, acquisition of
stock, or otherwise; provided, however, that neither the Employee nor any
-------- -------
beneficiary nor any legal representative of the Employee, may assign all or any
portion of the Employee's rights or obligations under this Agreement without the
prior written consent of the Board of Directors.
5.2 Notices. Whenever notice is required to be given under the terms of
-------
this Agreement, such notice shall be in writing and delivered by hand or by
registered or certified mail, postage prepaid, or transmitted by telecopier,
addressed as follows:
(a) If to the Company, to it at:
BoxTop Interactive, Inc.
9014 Melrose Avenue
Los Angeles, California 90069
Attention: Chief Executive Officer
Telecopy No: 310.246.9995
(b) If to the Employee, to him at:
Kevin Wall
1670 No. Dohney Dr.
Los Angeles, California 90069
or to such other address as either party shall have specified for itself from
time to time to the other party in writing. All such notices shall be
conclusively deemed to be received and shall be effective, if sent by hand
delivery, upon receipt, or if sent by registered or certified may, upon receipt,
or if transmitted by telecopier.
5.3 Governing Law. This Agreement and the rights and obligations of the
-------------
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State
10
<PAGE>
of California without giving effect to the conflicts of law principles thereof.
5.4 Severability. If any term or other provision of this Agreement, or
------------
any application thereof to any circumstance is invalid, illegal or incapable of
being enforced by any rule of law, or public policy in whole or in part, such
provision or application shall to that extent be severable and shall not affect
any of the other provisions or applications of this Agreement.
5.5 Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties hereto with respect to the subject matter hereof and supersedes and
replaces in its entirety the Old Agreement.
5.6 Existing Agreement. Employee confirms and acknowledges that he has no
------------------
claims against the Company (or its affiliates) under the Old Agreement.
5.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original but all of which
together shall be deemed to constitute one and the same instrument.
5.8 Plurals; Gender; Headings; Sections. In this Agreement, unless the
-----------------------------------
context otherwise requires, words in the singular number or in the plural number
shall each include the singular number and the plural number, and the use of any
gender shall include all genders. The headings in this Agreement are for
reference purpose only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement. All references to sections, subsections and
paragraphs herein shall be deemed to refer to sections, subsections or
paragraphs of this Agreement unless the context otherwise requires.
5.9 Further Assurances. Each party hereto shall do and perform or cause
------------------
to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and documents as any
other party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5.10 Amendment and Modification. This Agreement may not be amended, nor
--------------------------
may any provision hereof be modified, waived or discharged, nor may any breach
hereof be waived, except by an instrument in writing duly signed by the party to
be charged. The written approval of the Board of Directors shall be required
before any material amendment, modification, waiver or discharge
11
<PAGE>
contemplated by such Sections shall be effective as between the Company and
Employee.
5.11 Waiver. No provision of this Agreement may be waived or discharged
------
unless such waiver or discharge is agreed to in writing and signed by the
affected party. No such waiver or discharge by any party hereto at any time, or
any waiver or discharge any breach by any party hereto of any provision of this
Agreement to be performed by such party, shall be deemed to waive or discharge
any other provisions or be a waiver or discharge of any breach of any other
provisions, respectively, at the same or at any prior or subsequent time.
5.12 Withholding. The Company shall have the right to deduct from any
-----------
amounts payable hereunder or otherwise any taxes or other amounts to the extent
required by law to be withheld.
5.13 Certain Definitions.
-------------------
For purposes of this agreement:
(a) the term "affiliate" shall mean, with respect to any person, any
other person directly or indirectly controlling, controlled by, or under common
control with such person; and
(b) the term "person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
5.14 Arbitration.
-----------
(a) Except as set forth in this Section 5.14, all questions or disputes
arising out of or relating to this Agreement or any breach thereof shall be
finally settled by binding arbitration under the rules of the American
Arbitration Association and judgment upon such award may be entered in any court
having jurisdiction thereof. Any such arbitration proceeding shall take place
in Los Angeles County, California. THE PARTIES EACH HEREBY WAIVE THE RIGHT TO
TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY BREACH THEREOF.
(b) Employee acknowledges that the Company is relying for its protection
upon the existence and validity of, among other things, Sections 3.1, 3.2 and 4
of this Agreement, and that irreparable injury (which would not be adequately
compensated by an award of damages) will result to the Company from any
violation or continuing violation of such provisions. Accordingly, Employee
hereby agrees that in addition to the
12
<PAGE>
remedies available to the Company by law or under this Agreement, the Company
shall be entitled to seek and obtain, from a court of competent jurisdiction,
such equitable relief (including injunctive relief) as may be permitted by law
for violations of Sections 3.1, 3.2 and 4 of this Agreement. Any such action
shall be brought in the state courts presiding in the County of Los Angeles or
in the Federal Courts in the Central District of California. Each party hereby
consents to personal jurisdiction in such courts and waives any objection to
such venue.
5.15 Attorneys' Fees. In any dispute arising out of this Agreement the
---------------
prevailing party shall be entitled to recover reasonable attorneys' fees and
expenses and other costs in addition to any other relief awarded.
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto, all as of the date first above written.
BOXTOP INTERACTIVE, INC., a
California corporation
BY: /s/ Nancy Smalley
------------------------------
Name: Nancy Smalley
Title: Secretary
/s/ Kevin Wall
----------------------------------
Kevin Wall, an individual
13
<PAGE>
Appendix A
NOTIFICATION TO EMPLOYEE
Set forth below is the text of Section 2870, 2871 and 2872 of the
California Labor Code, as published in West's Ann. Cal. Labor Code (1989) and
West's Ann. Cal. Labor Code (1994 Supp.) :
(S) 2870. EMPLOYMENT AGREEMENTS; ASSIGNMENTS OF RIGHTS
(c) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the
employer.
(d) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
(S) 2871. CONDITIONS OF EMPLOYMENT OR CONTINUED EMPLOYMENT; DISCLOSURE OF
INVENTIONS
No employer shall require a provision made void and unenforceable by
Section 2870 as a condition of employment or continued employment. Nothing in
this article shall be construed to forbid or restrict the right of an employer
to provide in contracts or employment for disclosure, provided that any such
disclosures be received in confidence, of all of the employee's inventions made
solely or jointly with others during the term of his or her employment, a review
process by the employer to determine such issues as may arise, and for full
title to certain patients and inventions to be in the United States, as required
by the contracts between the employer and the United States or any of its
agencies.
(S) 2872. NOTICE TO EMPLOYEE; BURDEN OF PROOF
If an employee agreement entered into after January 1, 1980, contains a
provision requiring the employee to assign or offer to assign any of his or her
rights in any invention to his or her
A-1
<PAGE>
employer, the employer must also, at the time the agreement is made, provide a
written notification to the employee that the agreement does not apply to an
invention which qualifies fully under the provisions of Section 2870. In any
suit or action arising thereunder, the burden of proof shall be on the employee
claiming the benefit of its provisions.
A-2
<PAGE>
Assumption of and First Amendment to Employment Agreement
This Assumption of and First Amendment to Employment Agreement (the "First
Amendment") by and among iXL Enterprises, Inc. ("IXL"), BoxTop Interactive, Inc.
("BoxTop"), and Kevin Wall references that certain Employment Agreement dated as
of August 1, 1996 by and between BoxTop and Kevin Wall (the "Employment
Agreement"). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Employment Agreement.
WHEREAS, pursuant to the Employment Agreement, Kevin Wall is employed as
the Chairman of the Board and Chief Executive Officer of BoxTop Interactive,
Inc., the wholly-owned subsidiary of IXL.
WHEREAS, the Board of Directors of IXL has proposed to elect and appoint
Kevin Wall as the Vice Chairman of IXL.
WHEREAS, in connection with the appointment of Kevin Wall as the Vice
Chairman of IXL, IXL desires to assume the rights and obligations of BoxTop
under the Employment Agreement.
WHEREAS, in connection with the assumption of BoxTop's rights and
obligations under the Employment Agreement, the Employment Agreement must be
amended to accurately reflect Kevin Wall's employment by IXL.
NOW THEREFORE, in consideration of the mutual covenants, and obligations
set forth herein and in the Employment Agreement, the parties hereby agree as
follows:
1. Assumption of the Employment Agreement by IXL. IXL hereby assumes the
---------------------------------------------
rights and obligations of BoxTop under the Employment Agreement. Kevin Wall
hereby consents to such assumption and agrees to be bound by the terms of the
Employment Agreement, as amended hereby, as if IXL were an original party
thereto.
2. Amendments of the Employment Agreement. The Employment Agreement shall
--------------------------------------
be amended as follows:
(a) The term "Company" as it appears in the first paragraph of the preamble
of the Employment Agreement shall be amended to be defined as iXL
Enterprises, Inc.
(b) The second "WHEREAS" clause of the preamble shall be deleted in its
entirety.
(c) Section 1.1(b) of the Employment Agreement shall be amended by deleting
such section in its entirety and substituting in lieu thereof the
following:
(b) During the Employment Term, Employee shall devote (i) substantially
all of his business time, attention and skill, and (ii) all of
-1-
<PAGE>
his time and efforts in the interactive media field to the Company;
and shall perform faithfully, loyally and efficiently as the Vice
Chairman of the Company. In such capacity, he shall have such
duties and responsibilities consistent therewith and such other
duties and responsibilities as may from time to time be assigned to
or vested in him by the Board of Directors (as such term is
hereinafter defined). If the Board of Directors requests or
requires that Employee manage or oversee the operations of any
joint venture, division, or subsidiary of the Company or any joint
venture or division of any such subsidiary, Employee's office with
such joint venture, division, or subsidiary (which shall be in
addition to his title as Vice Chairman) shall be no lower than
President.
(d) Section 1.2(b)(ii) of the Employment Agreement shall be amended by
deleting such section in its entirety. Kevin Wall acknowledges that all
obligations created by deleted Section 1.2(b)(ii) have been satisfied
through prior option grants.
(e) The definition of the term "Competitor" as set forth in Section 3.2(b)
of the Employment Agreement shall be amended by deleting such definition in
its entirety and substituting in lieu thereof the following:
The term "Competitor" as used herein means any person (other than the
Company or an affiliate thereof) that directly or indirectly engages
in the lines of business in which the Company or any of its
subsidiaries is engaged during the Employment Term (other than the
following lines of business: television (including cable television)
and film industries, music or sound recording industries, and talent
management industries). Notwithstanding the above, the term
"Competitor" shall not include BoxTop Entertainment, Inc.
(f) The address for notices to the Company set forth in Section 5.2 shall
be changed to the following:
iXL Enterprises, Inc.
1888 Emery Street, N.W.
Atlanta, GA 30318
Attention: U. Bertram Ellis, Jr.
(g) Section 5.5 of the Employment Agreement shall be amended by deleting
such section in its entirety and substituting in lieu thereof the
following:
5.5 Entire Agreement. This Employment Agreement, as amended or modified
----------------
by the Letter dated as of May 30, 1997 (re: Merger of BoxTop
Interactive, Inc. into IXL Merger Corp. III, Inc.) and the Assumption
of and First Amendment to Employment Agreement by and among iXL
Enterprises, Inc. ("IXL"), BoxTop Interactive, Inc. ("BoxTop"), and
Kevin Wall, contains the entire understanding of the
-2-
<PAGE>
parties hereto with respect to the subject matter hereof and
supersedes and replaces in its entirety all prior employment,
consulting or similar agreements, understandings or arrangements,
written or oral.
(h) Section 5.6 of the Employment Agreement shall be amended by deleting
such section in its entirety and substituting in lieu thereof the
following:
5.6 No Claims Under Prior Agreements. Employee confirms and acknowledges
--------------------------------
that he has no claims against the Company or its affiliates under any
employment, consulting or similar agreements, understandings or
arrangements prior to this Employment Agreement, as amended or
modified by the Letter dated as of May 30, 1997 (re: Merger of BoxTop
Interactive, Inc. into IXL Merger Corp. III, Inc.) and the Assumption
of and First Amendment to Employment Agreement by and among IXL,
BoxTop, and Kevin Wall.
(i) No Further Amendments. Except as otherwise provided in this Section 2,
---------------------
the Employment Agreement shall not be amended or modified.
3. Effect of Sections 3.1(b), (c), and (d). Sections 3.1(b), (c), and (d)
----------------------------------------
of the Employment Agreement shall not apply to Inventions or other intellectual
property made, developed, perfected, devised, conceived or reduced to practice
by Employee during the Employment Term, and up to and including a period of
twelve (12) months after the Employment Term, which relate to the following
lines of business: television (including cable television) and film industries,
music or sound recording industries, or talent management industries.
4. Resignation of BoxTop offices. Kevin Wall hereby resigns as the
-----------------------------
Chairman of the Board of Directors and Chief Executive Officer of BoxTop.
[Signatures on Following Page]
-3-
<PAGE>
IN WITNESS WHEREOF, this Assumption of and First Amendment to Employment
Agreement has been executed by the parties hereto effective as of __________,
1998.
iXL Enterprises, Inc.
By: /s/ U. Bertram Ellis, Jr.
-------------------------------------
Name: U. Bertram Ellis, Jr.
-------------------------------
Title: Chairman and CEO
------------------------------
BoxTop Interactive, Inc.
By: /s/ U. Bertram Ellis, Jr.
-------------------------------------
Name: U. Bertram Ellis, Jr.
-------------------------------
Title: Chairman and CEO
------------------------------
/s/ Kevin Wall
-----------------------------------------
Kevin Wall
-4-
<PAGE>
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (this "Second Amendment") by
and between iXL Enterprises, Inc. ("iXL" or the "Company") and Kevin Wall
("Wall") references (a) that certain Employment Agreement dated as of August 1,
1996 by and between BoxTop Interactive, Inc.("BoxTop") and Wall and (b) that
certain Assumption of and First Amendment to Employment Agreement dated as of
April 16, 1998 by and among iXL, BoxTop, and Wall (collectively, the "Employment
Agreement").
NOW THEREFORE, in consideration of the mutual covenants, and obligations
set forth herein and in the Employment Agreement, the parties hereby agree as
follows:
1. Amendments of the Employment Agreement. The Employment Agreement shall
--------------------------------------
be amended as follows:
1.1 Sections 1.1(a) and (b) of the Employment Agreement shall be
amended by deleting such sections in their entirety and substituting in lieu
thereof the following:
(a) The Company hereby employs Employee, and Employee hereby
accepts employment by the Company, upon the terms and conditions set forth
in this Agreement, for the period commencing on the date of this Second
Amendment and ending on January 1, 2000, unless earlier terminated pursuant
to the terms of this Agreement (for all purposes herein, other than Section
3, the "Employment Term"). The "Employment Term," for purposes of Section 3
only, shall be the period commencing on August 1, 1996 and ending on August
1, 2000, unless earlier terminated pursuant to the terms of this Agreement.
(b) The Company acknowledges and agrees that Employee shall at
all times during the Employment Term be a part-time employee of the
Company. Employee shall have only those duties and responsibilities as may
from time to time be assigned to or vested in him by the Board of Directors
(as such term is hereinafter defined), but only to the extent such duties
and responsibilities are consistent with those of a part-time employee and
those of a senior executive of the Company.
1.2 Section 1.2(a) of the Employment Agreement shall be amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
(a) In consideration of the services rendered to or for the
benefit of the Company hereunder by Employee during the Employment Term,
the Company shall, during the Employment Term, pay Employee a salary (the
"Salary") at the annual rate of Three Hundred Thirty-Two Thousand Seven
Hundred and Fifty Dollars ($332,750). The Salary shall be payable in
approximately equal installments in accordance with the Company's normal
payroll practices for its employees, but such installments shall be
<PAGE>
payable not less frequently than monthly. The Salary, and all other forms
of compensation paid to Employee hereunder shall be subject to all
applicable income taxes, payroll taxes and other amounts required to be
withheld by the Company pursuant to applicable law. Employee shall be
solely responsible for all income taxes, payroll taxes and other amounts
imposed on Employee by reasons of any cash or non-cash compensation and
benefits provided to Employee pursuant to this Agreement. In addition, in
consideration of Employee's execution of this Second Amendment, the Company
agrees to pay to Employee the sum of Fifty Thousand Dollars ($50,000),
subject to all applicable income taxes, payroll taxes and other amounts
required to be withheld by iXL pursuant to applicable law, immediately upon
the execution by Employee of this Second Amendment and pay to Employee
Fifty Thousand Dollars ($50,000), subject to all applicable income taxes,
payroll taxes and other amounts required to be withheld by iXL pursuant to
applicable law, on August 1, 2000.
1.3 Clauses (iv) and (v) of Section 1.2(b) of the Employment Agreement
shall be deleted in their entirety and be of no further force or effect.
1.4 Clause 3.1(a) of the Employment Agreement shall be amended to
include the following clause (iii) at the very end of the first sentence, which
clause shall immediately follow clause (ii) of the proviso within such sentence:
or (iii) of the type specified above, but which was created
developed, perfected, devised, discovered, conceived or reduced to
practice by Employee at any time before, on or after the date of this
Second Amendment (whether or not in collaboration with others or during
or resulting from work performed for the Company or any of its
subsidiaries) that relates to or is used or is intended to be used in
connection with any Permitted Activity (as defined herein).
1.5 (a) Section 3.1(b)(i) of the Employment Agreement shall be
amended so that the clause: "during the period of his employment by the Company,
and up to and including a period of twelve (12) months after the Employment
Term," shall be deleted in its entirety and be of no further force or effect and
the following shall be substituted therefor: "during the Employment Term,".
Section 3.1(b)(i) shall be further amended to add the following at the end of
the one sentence constituting such Section:
; provided, however, notwithstanding anything in the foregoing to the
-------- -------
contrary, under no circumstances shall the term "Invention" be deemed,
treated or understood to include for any purpose of this Agreement or
for any purported or actual duty or obligation that Employee owes, owed
or is deemed to have owed at any time to the Company or any affiliate
thereof, in his capacity as an employee, director or otherwise, any
invention, discovery, improvement, device, design, apparatus, practice,
process, method or product made, developed, perfected, devised,
conceived or reduced to practice by Employee at any time either before,
on or after the date of this Second Amendment (whether or not in
2
<PAGE>
collaboration with others or during or resulting from work performed for
the Company or any of its subsidiaries) that relates to or is used or is
intended to be used in connection with any Permitted Activity (each of the
foregoing described in this proviso, except which may relate to or is used
or is intended to be used in connection with the Studio Concept (as defined
below), that was made, developed, perfected, devised, conceived or reduced
to practice by Employee at any time from the initiation of the Employment
Term through the date immediately prior to this Second Amendment and that
relates either directly or indirectly to the business, products, practices
or techniques of the Company or to the Company's actual or demonstrably
anticipated research or development shall be referred to herein as an
"Employee Invention").
(b) Section 3.1(b)(ii) shall be amended to delete the following
clause in its entirety: "and any other Inventions made, developed, perfected,
devised, conceived or reduced to practice by Employee during said period of
twelve (12) months after the Employment Term," which clause shall be of no
further force or effect.
1.6 (a) Section 3.1(c)(i) of the Employment Agreement shall be
amended so that the clause: "during the period of his employment by the Company,
and up to and including a period of twelve (12) months after the Employment
Term," shall be deleted in its entirety and be of no further force or effect and
the following shall be substituted therefor: "during the Employment Term,".
Section 3.1(c)(i) shall be further amended to add the following at the end of
the sentence constituting such Section:
; provided, however, notwithstanding anything in the foregoing to the
-------- -------
contrary, under no circumstances shall the phrase "other intellectual
property" be deemed, treated or understood to include for any purpose of
this Agreement or for any purported or actual duty or obligation that
Employee owes, owed or is deemed to have owed at any time to the Company or
any affiliate thereof, in his capacity as an employee, director or
otherwise, any intellectual property, including, but not limited to,
original works of authorship, trademarks, service marks and trade secrets
made, developed, created, devised, conceived, perfected, reduced to
practice or discovered by Employee at any time either before, on or after
the date of this Second Amendment, whether or not in collaboration with
others or during or resulting from work performed for the Company or any of
its subsidiaries, that relates to or is used or is intended to be used in
connection with any Permitted Activity (each of the foregoing described in
this proviso, except which may relate to or is used or is intended to be
used in connection with the Studio Concept, that was made, developed,
created, devised, conceived, perfected, reduced to practice or discovered
by Employee at any time from the initiation of the Employment Term through
the date immediately prior to this Second Amendment and that relates either
directly or indirectly to the business, products, practices or techniques
of the Company or to the Company's actual or demonstrably anticipated
research or development shall be collectively referred to herein as
"Employee Other Intellectual Property").
3
<PAGE>
(b) Section 3.1(c)(ii) of the Employment Agreement shall be
amended to add the following at the end of the first sentence of such Section:
; provided, however, under no circumstances shall any copyrightable works
-------- -------
be deemed, treated or understood to include for any purpose of this
Agreement or for any purported or actual duty or obligation that Employee
owes, owed or is deemed to have owed at any time to the Company or any
affiliate thereof, in his capacity as an employee, director or otherwise,
any copyrightable works made, developed, created, devised, conceived,
perfected, reduced to practice or discovered by Employee at any time either
before, on or after the date of this Second Amendment, whether or not in
collaboration with others or during or resulting from work performed for
the Company or any of its subsidiaries, that relates to or is used or is
intended to be used in connection with any Permitted Activity.
Section 3.1(c)(ii) shall be further amended by deleting the last two sentences
thereof in their entirety and such sentences shall be of no further force or
effect.
1.7 (a) Section 3.1(d) of the Employment Agreement shall be amended
so that the clause: "during the period of his employment by the Company, and up
to and including a period of twelve (12) months after the Employment Term,"
shall be deleted in its entirety and be of no further force or effect and the
following shall be substituted therefor: "during the Employment Term,".
(b) Section 3.1 of the Employment Agreement shall be amended to
add the following Section 3.1(e) immediately after Section 3.1(d):
(e) Employee hereby grants to the Company a perpetual, non-exclusive,
royalty-free license to use, modify, market or display any element of any
Employee Invention or Employee Other Intellectual Property, including the
right to grant to any of the Company's subsidiaries a sub-license in the
same (such license and all such sub-licenses, collectively, the "License").
Nothing in this Agreement, nor any conduct of either of the parties
hereunder, shall affect the ownership of any Employee Invention or Employee
Other Intellectual Property, which at all times shall belong exclusively to
Employee and in which Employee shall retain al proprietary rights. Except
as expressly provided in this Section 3.1(c), the Company agrees and
acknowledges that (i) Employee has no obligation to convey, transfer or
assign to or inform the Company or any of its affiliates of any aspect of
or interest in any Employee Invention or Employee Other Intellectual
Property, (ii) the License is granted on an "as is" basis, without any
express or implied representation or warranty, including, without
limitation, any representation or warranty that any use of the License or
any Employee Invention or Employee Other Intellectual Property does not or
will not infringe upon and/or violate in any way the rights or interests of
any other person or entity and (iii) Employee has no duties or obligations,
express or implied, with respect to the License or any Employee Invention
or
4
<PAGE>
Employee Other Intellectual Property, including, without limitation, any
duty or obligation to update, repair, modify or correct.
1.8 (a) Section 3.2 of the Employment Agreement shall be amended so
that the preamble of Section 3.2, which precedes Section 3.2(a), shall be
deleted in its entirety and the following shall be substituted therefor:
Employee and the Company recognize that due to the nature of Employee's
engagement hereunder and the relationship of Employee to the Company, prior
to the date of this Second Amendment, Employee has had access to, may have
acquired, and may have assisted in developing confidential and proprietary
information relating to the business and operations of the Company and its
affiliates, including, but not limited to Confidential Information.
Employee acknowledges that such information has been and will be of central
importance to the business of the Company and its affiliates and that
disclosure of this information to, or its use by others can and will cause
substantial loss to the Company. Accordingly, Employee will perform as
follows:
(b) Clauses (ii) and (iii) of Section 3.2(a) shall be amended by
deleting such clauses in their entirety and substituting in lieu thereof the
following:
(ii) directly or indirectly, for purposes of this clause (ii) only, from
August 1, 1996 through December 31, 2000 (notwithstanding any reference to
the "Employment Term" in this Section 3(a)), through one or more
intermediaries, solicit for employment or recommend to any subsequent
employer of Employee the solicitation for employment of, any person who, at
the time of any such solicitation, is employed by the Company or any
affiliate thereof; provided, however, that (A) under no circumstances shall
-------- -------
Employee be deemed to have breached this clause (ii) or any other provision
of this Agreement and (B) the Company shall take no action and have no
claim or cause of action against Employee if Employee, or any company or
entity in which Employee has an interest or with which Employee is
otherwise associated, in connection with any Permitted Activity, shall hire
or is deemed to have directly or indirectly hired, two (2) employees who
are at any time during the Employment Term employed by the Company or any
affiliate thereof, or (iii) directly or indirectly, whether for his own
account or for the account of any other person, solicit, divert, or
endeavor to entice away from the Company or any affiliate thereof, or
otherwise engage in any activity intended to terminate the Company's or any
of its affiliate's relationship with, Clients or other business
relationships of the Company or any affiliate thereof (subject to the
exception set forth under clause (ii), any activity described in clause
(i), (ii), (iii) of this Section 3.2(a) being herein referred to as a
"Prohibited Activity");
(c) Section 3.2(b) of the Employment Agreement shall be amended by
deleting such Section in its entirety and substituting in lieu thereof the
following:
5
<PAGE>
(b) Non-Competition. By and in consideration of the Company's entering into
---------------
this Agreement and providing the Salary and benefits hereunder (including
stock options granted pursuant to the Company's 1996 Stock Option Plan),
the Employee will not, during the Employment Term, engage in any
Competitive Activity. The term "Competitive Activity" means engaging in any
of the following activities: (i) serving as a director of any Competitor
(as defined below), (ii) directly or indirectly through one or more
intermediaries, either (X) controlling any Competitor or (Y) owning any
equity or debt interests in any Competitor (other than (A) equity or debt
interests which are publicly traded and, at the time of any acquisition, do
not exceed 5% of the total equity interests in such Competitor, or (B) so
long as Employee shall not act as an employee, officer, partner, director,
consultant, advisor or in any other active capacity with, or participate in
the ownership (other than in his capacity as an equity holder), management,
operation of, such Competitor, equity or debt interests which are not
publicly traded and, at the time of any acquisition, do not exceed 20% of
the total equity interests in such Competitor) (it being understood that,
if any interests in any Competitor are owned by an investment vehicle or
other entity in which the Employee owns an equity interest, a portion of
the interests in such Competitor owned by such entity shall be attributed
to the Employee, such portion determined by applying the percentage of the
equity interest in such entity owned by the Employee to the interests in
such Competitor owned by such entity), (iii) employment by (including
serving as an officer, employee or partner of), providing consulting
services to (including, without limitation, as an independent contractor)
or managing or operating the business or affairs of, any Competitor or (iv)
participating in the ownership (except as otherwise provided above),
management, operation or control of or being connected in any similar such
manner with any Competitor; provided, however, notwithstanding anything in
-------- -------
the foregoing to the contrary, under no circumstances shall the term
"Competitive Activity" be deemed, treated or understood to include any
Permitted Activity or any purported or actual duty or obligation that
Employee owes, owed or is deemed to have owed at any time before, on or
after the date of this Second Amendment, to the Company or any affiliate
thereof, in his capacity as an employee, director or otherwise.
The term "Permitted Activity" as used herein shall mean any activity
taken by Employee or on Employee's behalf in connection with Employee's
capacity as a principal, partner, director, officer, employee, consultant
or advisor of, or direct or indirect investor in (regardless of the
percentage equity or ownership interest held therein by Employee), an
"incubator" or venture capital fund, partnership, corporation, limited
liability company or other entity (any one or more of the foregoing,
collectively referred to as, an "Incubator") engaged in the business of
investing in and/or providing to third parties business planning and other
strategic planning, partnering, development and technical advice and
guidance provided "not for hire" but in connection with the early-stage
development and financing of a business and in exchange for any equity
interest in the business (collectively, "Incubating Services") to any
company, venture, business or other entity that (i) is not a Competitor or
(ii) conducts business related to or using ideas,
6
<PAGE>
concepts, inventions or any other intellectual property arising out of the
Studio Concept (a "Studio Concept Business"). The term "Competitor" as used
herein means any person (other than the Company or an affiliate thereof)
that provides one or more of the following service offerings or
substantially similar service offerings to third party businesses primarily
on a "for hire" type consideration basis, but only to the extent any such
service offerings or any component thereof has been sold by the Company or
any subsidiary thereof to one or more third parties in more than a de
minimus amount as of the date of this Second Amendment and only to the
extent all such applicable service offerings generate more than a de
minimus amount of revenue for such Competitor Internet strategy consulting,
the design, development and deployment of e-commerce systems and services,
the design, development and deployment of computer-based business
information management systems, interactive learning environments, digital
media management consulting services, traditional website development,
customized hosting, multimedia sales presentation systems, Web publishing
technology, or other design, development and deployment of Internet
applications and solutions for third parties, but shall not include any
person or entity engaged in the following lines of business: television
(including cable television) and film industries, music or sound recording
industries, and talent management industries), and shall not include BoxTop
Entertainment, Inc. The term "Competitor" shall not be construed to apply
to a Studio Concept Business, an Incubator providing Incubating Services to
a business or other entity that is not a Competitor, or an Incubator that
may provide Incubating Services incidental to an investment of $1,000,000
or more in an established business or entity that is not a Competitor. The
term "Studio Concept" shall mean the creation of any enterprise that
finances, creates, produces, distributes, promotes, syndicates and/or
licenses interactive or broadband content for various forms of distribution
and transmission, whether through the Internet, television, feature films,
video cassettes, digital video disks, satellite transmissions or any other
electronic or other medium. It is Employee's intention that the Studio
Concept is not to materially compete with the activities of the Company,
including the activities of the Company's Digital Media Services Group. The
Company agrees that Employee is and will be free, at any time he is not
actively performing work for the Company, to engage in any Permitted
Activity and in so doing will not be in violation of any provision of this
Agreement.
1.9 Section 5.5 of the Employment Agreement shall be amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
5.5 Entire Agreement. This Agreement, as amended or modified by
----------------
(i) the Letter dated as of May 30, 1997 (re: Merger of BoxTop Interactive,
Inc. into IXL Merger Corp. III, Inc), (ii) the Assumption of and First
Amendment to Employment Agreement by and among iXL Enterprises, Inc.
("IXL"), BoxTop Interactive, Inc. ("BoxTop"), and Kevin Wall and (iii) the
Second Amendment to Employment Agreement dated as of November __, 1999 by
and between IXL and Kevin Wall, contains the entire understanding of the
7
<PAGE>
parties hereto with respect to the subject matter hereof and supersedes
and replaces in its entirety all prior agreements, written or oral.
1.10 No Further Amendments. Except as otherwise provided in this
---------------------
Section 1, the Employment Agreement shall not be amended or modified.
2. Resignation as Director. Wall hereby resigns as a Director and as Vice
-----------------------
Chairman of iXL effective immediately upon the execution of this Second
Amendment by iXL.
3. Expenses. iXL shall pay Wall $11,000 on the date hereof as reimbursement
--------
in full for all expense reports and receipts Wall has submitted to iXL through
the date hereof, but for which Wall has not yet been fully reimbursed. Schedule
1 hereto sets forth information with respect to such reimbursement requests of
Wall. After the date hereof, Wall shall not be entitled to reimbursement of any
expenses from iXL without iXL's written consent prior to the incurrence of any
such expenses. iXL agrees to reimburse Wall promptly for all expenses Wall
incurs consistent with the immediately preceding sentence.
4. Computer; Assistant; E-Mail and Phone. Wall shall be entitled to remove
-------------------------------------
from iXL's offices located at 10960 Wilshire Boulevard, Los Angeles, CA 90024,
and iXL relinquishes any claims it may have with respect to, all of Wall's
personal effects, including, but not limited to, (i) all rock posters and
pictures that are hanging in the public areas of such offices, (ii) all
computers currently located in Wall's office, including Wall's IBM laptop with
docking station and monitor and the Gateway Destination, (iii) the furniture
currently located in Wall's office, including the chairs, sofa, tables and desk,
(iv) the leather sofa currently located in John Farina's office, (v) the
coffee table and two matching round tables currently located in the lobby and
(vi) the personal computer currently designated for use by Cathie Lamm. iXL
shall continue to retain Cathie Lamm as an employee of iXL to serve as Wall's
assistant until January 1, 2000 and iXL shall continue to pay Lamm's salary at
her current rate in accordance with iXL's normal payroll practices. In addition,
iXL agrees to keep Wall's current e-mail address, [email protected], and current
business telephone number, (310) 235-3901, active and continuously available to
Wall for his use at all times during the Employment Term. iXL further agrees
that such address and telephone number shall be reserved for Wall's exclusive
use and iXL agrees to take all reasonable efforts to ensure that such address
and telephone number remain confidential to Wall and the persons calling or
sending e-mail to him at such number and address.
5. Options. iXl agrees that all of Wall's outstanding options to purchase
-------
shares of iXL's common stock, which were granted pursuant to (i) the
Nonqualified Stock Option Award Agreement dated as of May 30, 1997 by and
between iXL and Wall (the "May Option Agreement") evidencing an option to
purchase 635,900 shares of iXL common stock and (ii) the Incentive Stock Option
Award Agreement dated as of June 16, 1997 by and between iXL and Wall (the "June
Option Agreement") evidencing an option to purchase 170,000 shares of iXL common
stock, that have vested as of the termination of the Employment Term shall not
terminate and shall remain outstanding and fully exercisable by Wall, in the
case of the option
8
<PAGE>
granted under the May Option Agreement, at any time until the close of business
on July 31, 2006, and in the case of the option granted under the June Option
Agreement, at any time until June 15, 2007, notwithstanding any provision of
iXL's 1996 Stock Option Plan, as amended, the May Option Agreement, the June
Option Agreement or any other agreement or arrangement relating to such options
to the contrary. iXL agrees that the common stock underlying all of Wall's
options shall be and shall remain registered pursuant to an effective
Registration Statement on Form S-8 (or any successor from thereof) of iXL to the
same extent as the common stock underlying any other options outstanding under
iXL's 1996 Stock Option Plan, as amended.
6. Non-Disparagement. Until August 1, 2001 Wall shall not, directly or
-----------------
indirectly, make, print, publish, disseminate or otherwise distribute to anyone
any negative or untrue statement with respect to, or any other statement that
otherwise disparages the personal or business reputation of, as applicable, iXL
or any of its subsidiaries or any of iXL's current or future directors or
officers. Until August 1, 2001 iXL shall not, and hereby agrees on behalf of
each of iXL's current and future directors, officers and employees that they
shall not, directly or indirectly, make, print, publish, disseminate or
otherwise distribute to anyone any negative or untrue statement with respect to,
or any other statement that otherwise disparages the personal or business
reputation of, Wall or any company or entity of which he is a principal,
partner, director, officer, employee, consultant, advisor or greater than 5%
owner or with which he is otherwise affiliated.
7. Affirmation of Registration Rights. iXL acknowledges, affirms and
----------------------------------
agrees that, as of the date hereof, Wall is a party to the Registration Rights
Agreement dated as of April 30, 1996 (the "Registration Rights Agreement") among
iXL, Kelso Investment Associates V, L.P., Kelso Equity Partners V, L.P. and
certain other stockholders of iXL and, as such, is entitled to all of the
benefits thereof, including Wall's incidental registration rights under Sections
1 and 2 thereof. iXL further agrees that on and after the date hereof, Wall
shall be subject to the pro rata reductions of any shares that he intends to
include in any registration statement as set forth in the Registration Rights
Agreement, but that, notwithstanding any provision to the contrary therein, he
will not be subject to exclusion from any offering pursuant to the Registration
Rights Agreement due to his status as an employee stockholder.
8. Mutual Release and Waiver.
-------------------------
8.1 Release and Waiver by Wall. Except as expressly contemplated by
--------------------------
this Second Amendment, including Section 8.3 below, and except with respect to
any breach or violation by iXL of this Second Amendment or the Employment
Agreement, as amended hereby, as a material inducement to iXL to enter into this
Second Amendment, Wall hereby irrevocably and unconditionally releases, acquits
and forever discharges iXL and each of iXL's past, present and future
predecessors, successors, assigns, agents, directors, officers, representatives,
subsidiaries, affiliates (and agents, directors, officers and representatives of
such subsidiaries and affiliates) (collectively, "Releases") from any and all
charges, complaints, claims, liabilities,
9
<PAGE>
obligations, promises, agreements, controversies, expenses (including attorneys'
fees and costs reasonably incurred) of any nature whatsoever, known or unknown,
suspected or unsuspected, including, but not limited to, any rights arising out
of alleged violations of any contracts, express or implied, any covenant of good
faith and fair dealing, express or implied, any obligation for compensation,
lost wages, lost benefits, unused accrued vacation, or any other expectation of
remuneration or benefit on the part of Wall, which Wall now has, owns or holds
or claims to have, own or hold as of the date hereof, or which Wall at any time
heretofore had, owned, or held, or claimed to have, own or hold before the date
hereof, against each of the Releasees.
8.2 Release and Waiver by iXL and Others. Except as expressly
------------------------------------
contemplated by this Second Amendment, including Section 8.3 below, and except
with respect to any breach or violation by Wall of this Second Amendment or the
Employment Agreement, as amended hereby, as a material inducement to Wall to
enter into this Second Amendment, iXL on its behalf and on behalf of its
predecessors, successors, assigns, subsidiaries and controlled affiliates,
hereby irrevocably and unconditionally releases, acquits and forever discharges
Wall from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, expenses (including attorneys' fees and
costs reasonably incurred) of any nature whatsoever, known or unknown, suspected
or unsuspected, which iXL or any of its predecessors, assigns, subsidiaries and
controlled affiliates now has, owns or holds or claims to have, own or hold as
of the date hereof, or which iXL or any of its predecessors, assigns,
subsidiaries and controlled affiliates at any time heretofore had, owned, or
held, or claimed to have, own or hold before the date hereof, against Wall.
8.3 Exceptions to Mutual Releases and Waivers. Notwithstanding the
-----------------------------------------
foregoing, Sections 8.1 and 8.2 shall not affect in any way, and no party,
person or entity shall be deemed to have released, acquitted or discharged any
other party, person or entity from or with respect to any charge, complaint,
claim, liability, obligation, promise, agreement, controversy, expense
(including attorneys' fees and costs reasonably incurred) of any nature owned or
held by such party, person or entity with respect to, the following, all of
which shall remain in full force and effect with respect to Wall and iXL after
the date hereof until terminated in accordance with their terms or earlier
terminated by the parties thereto in accordance with the terms thereof:
(a) The Indemnity Agreement dated as of June 8, 1999 by and
between iXL and each person described on the signature pages thereto,
including Wall;
(b) The May Option Agreement, the June Option Agreement, iXL's
1996 Stock Option Plan, as amended, and the Registration Rights Agreement;
and
(c) Each benefit plan and other similar arrangement offered or
sponsored by iXL or any of its predecessors in which Wall has been or
currently is a participant or from which he has been or is entitled to
receive any benefits, including each such plan and arrangement listed on
Schedule 2 hereto.
10
<PAGE>
8.4 Knowing and Voluntary Waiver. The parties expressly waive and
----------------------------
relinquish all rights and benefits afforded by Section 1542 of the Civil Code of
the State of California, and do so understanding and acknowledging the
significance of such specific waiver of Section 1542. Section 1542 of the Civil
Code of the State of California states as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Thus, notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of all those released
by this Second Amendment, Wall and iXL each expressly acknowledge that this
Second Amendment is intended to include in its effect, without limitation, all
claims which such party does not know or suspect to exist in its or his favor at
the time of execution hereof, and that this Second Amendment contemplates the
extinguishment of any such claims.
Wall and iXL acknowledge that they have expressly bargained for the
foregoing waiver of the provisions of Section 1542.
9. Confidentiality; Publicity. Except as required by law, regulation or
------------------------
stock exchange requirements, Wall and iXL agree to keep the terms of this Second
Amendment and the transactions contemplated hereby completely confidential. On
and after the date hereof, except as required by law, regulation or stock
exchange requirements, the parties shall not, and shall cause their affiliates
not to, issue or cause the publication of any press release or other
announcement with respect to the transactions contemplated by this Second
Amendment without the consent of the other party, which consent shall not be
unreasonably withheld or delayed.
10. Further Assurances. Wall and iXL each agrees that after the date
------------------
hereof, upon the reasonable request of the other, he or it shall take such
further action as the other may reasonably request to carry out the transactions
contemplated by this Second Amendment.
11. Successor and Assigns. This Second Amendment shall be binding upon and
---------------------
inure to the benefit of each of the parties hereto and their respective legal
representatives, successors and permitted assigns. This Second Amendment shall
not be assigned by any party hereto without the prior written consent of the
other party hereto. It is expressly understood that this Second Amendment does
not create any third-party beneficiary rights.
12. Applicable Law. This Second Amendment shall be governed by and
--------------
construed in accordance with the laws of the State of California.
13. Severability. If one or more provisions of this Second Amendment is
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Second
11
<PAGE>
Amendment and the balance of this Second Amendment shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
14. Attorneys' Fees. If either party institutes any legal action to enforce
---------------
his or its rights under or to recover damages for any breach of this Second
Amendment, the prevailing party in such action shall be entitled to recover from
the other party all costs (including costs of mediation, if any) and all
reasonable expenses for attorney's fees and disbursements incurred by him or it.
15. Entire Agreement. This Second Amendment, the schedules hereto and the
----------------
Employment Agreement, as amended hereby, contain the entire agreement among the
parties hereto with respect to the transactions contemplated herein and in the
Employment Agreement.
16. Amendments. This Second Amendment cannot be amended without the written
----------
consent of both parties hereto.
17. Headings. The headings in this Second Amendment are intended solely for
--------
convenience of reference and shall be given no effect in the construction or
interpretation of this Second Amendment.
18. Execution and Counterparts. This Second Amendment may be executed in
--------------------------
counterparts, each and all of which shall be deemed for all purposes to be one
agreement.
19. Voluntary Execution. Wall acknowledges that (i) he has freely and
-------------------
voluntarily executed this Second Amendment and has elected to do so without any
undue influence from iXL, and (ii) the execution of this Second Amendment and
the actions to be taken pursuant hereto are not in connection with any
disagreement with iXL regarding iXL's operations, policies or practices.
12
<PAGE>
IN WITNESS WHEREOF, this Second Amendment to Employment Agreement has been
executed by the parties hereto effective as of November 17, 1999.
iXL Enterprises, Inc.
By: /s/ M. Wayne Boylston
---------------------------
Name: M. Wayne Boylston
Title: Executive Vice President
/s/ Kevin Wall
-------------------------------
Kevin Wall
13
