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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 17, 2000
REGISTRATION NO.__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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iXL ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT SPECIFIED IN CHARTER)
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DELAWARE 58-2234342
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
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1900 EMERY STREET
ATLANTA, GA 30318
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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iXL ENTERPRISES, INC. TESSERA 1995 STOCK OPTION PLAN
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U. BERTRAM ELLIS, JR.
CHIEF EXECUTIVE OFFICER
iXL ENTERPRISES, INC.
1900 EMERY ST., NW
ATLANTA, GA 30318
(800) 573-5544
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JAMES S. ALTENBACH
GREENBERG TRAURIG LLP
ONE BUCKHEAD PLAZA
3060 PEACHTREE ROAD, SUITE 1100
ATLANTA, GA 30305
(404) 261-8000
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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. [X]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
iXL Enterprises, Inc. Tessera 1995 Stock Option
Plan Common stock, par value $.01 per share (2).. 405,691 shares $ 11.6176 $4,713,155.76 $ 1,244.27
</TABLE>
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(1) This Registration Statement also relates to an indeterminate number of
additional shares of common stock pursuant to the change in capitalization
provisions of the above-referenced plans.
(2) This computation is based upon the weighted average exercise price per
share of $11.6176 as to 405,691 outstanding but unexercised options to
purchase common stock under the iXL Enterprises, Inc. Tessera 1995 Stock
Option Plan.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
(b) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A, filed with the Securities and Exchange
Commission on May 21, 1999, under Section 12(g) of the Securities Exchange Act
of 1934, as amended; and
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
filing of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold, or which deregisters all such
securities remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the issuance of the
shares of common stock offered hereby will be passed upon for the Registrant by
Greenberg Traurig LLP, Atlanta, Georgia. As of January 31, 2000, attorneys
employed by Greenberg Traurig held 125,033 shares of common stock and options to
purchase 11,449 shares of common stock. From September 1997 to December 17,
1997, Mr. James S. Altenbach, a shareholder of Greenberg Traurig LLP, loaned
$100,000 to the Registrant at an interest rate of 12% per annum. Mr. Altenbach
currently serves as Secretary of the Registrant and its subsidiaries.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant'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 the Registrant or is or
was serving at the request of the Registrant 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 the
Registrant 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 the Registrant 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 the
Registrant 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 the
Registrant for expenses incurred in
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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 the Registrant 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 the Registrant)
by reason of the fact that the person is or was a director, officer, agent or
employee of the Registrant or is or was serving at the the Registrant'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 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 the Registrant, 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 the Registrant 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 the Registrant, unless the court
believes that in light of all the circumstances indemnification should apply.
The indemnification provisions contained in the Registrant'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, the Registrant 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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or Form
F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification 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, officer 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in Atlanta, Georgia, on February 17, 2000.
iXL Enterprises, Inc.
By: /s/ M. Wayne Boylston
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Name: M. Wayne Boylston
Title: Executive Vice President and Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints U.
Bertram Ellis, Jr. and M. Wayne Boylston, and each of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) and additions to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the date indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ U. BERTRAM ELLIS, JR. Chief Executive Officer and Director February 17, 2000
- ---------------------------------------- (Principal Executive Officer)
U. BERTRAM ELLIS, JR.
/s/ M. WAYNE BOYLSTON Chief Financial Officer February 17, 2000
- ---------------------------------------- (Principal Financial Officer)
M. WAYNE BOYLSTON
/s/ JEFFREY T. ARNOLD Director February 17, 2000
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JEFFREY T. ARNOLD
/s/ FRANK K. BYNUM, JR. Director February 17, 2000
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FRANK K. BYNUM, JR.
/s/ JEROME D. COLONNA Director February 17, 2000
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JEROME D. COLONNA
/s/ WILLIAM C. NUSSEY Director February 17, 2000
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WILLIAM C. NUSSEY
/s/ THOMAS G. ROSENCRANTS Director February 17, 2000
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THOMAS G. ROSENCRANTS
/s/ JEFFREY C. WALKER Director February 17, 2000
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JEFFREY C. WALKER
/s/ THOMAS R. WALL, IV Director February 17, 2000
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THOMAS R. WALL, IV
/s/ GARY C. WENDT Director February 17, 2000
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GARY C. WENDT
</TABLE>
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EXHIBIT INDEX
3.1 Amended and Restated Certificate of Incorporation.**
3.2 Amended and Restated Bylaws.**
5.1 Opinion of Greenberg Traurig, a partnership of limited liability
entities.
10.73 iXL Enterprises, Inc. Tessera 1995 Stock Option Plan, as amended and
Restated, together with related agreements.*
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Greenberg Traurig, a partnership of limited liability
entities (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature pages hereto).
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* Incorporated by reference to iXL's Annual Report on Form 10-K filed
February 15, 2000.
** Incorporated by reference to iXL's Registration Statement on Form S-4 (No.
333-81731).
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EXHIBIT 5.1
GREENBERG
ATTORNEYS AT LAW
TRAURIG
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One Buckhead Plaza, 3060 Peachtree Road, Suite 1100, Atlanta, Georgia 30305 Telephone: (404) 261-8000
Facsimile: (404) 233-5824
www.gtlaw.com
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February 17, 2000
iXL Enterprises, Inc.
1888 Emery Street
Atlanta, Georgia 30318
Re: iXL Enterprises, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by iXL
Enterprises, Inc. (the "Company") with the Securities and Exchange Commission on
or about February 17, 2000 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of the iXL
Enterprises, Inc. Tessera 1995 Stock Option Plan (as to 405,691 shares),
(collectively, the "Shares" as appropriate).
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 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, it is our opinion that the Shares, when
issued and sold in the manner described in the Plans and pursuant to the
agreement that accompanies each grant under the Plans, will be legally and
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 Item 5 of this
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.
Your very truly,
/s/ Greenberg Traurig, LLP
Greenberg Traurig, LLP
JSA:pac
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 14, 2000 relating to the
financial statements of iXL Enterprises, Inc., which appears in its Annual
Report on Form 10-K for the year ended December 31, 1999.
PricewaterhouseCoopers LLP
Atlanta, Georgia
February 16, 2000
