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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 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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2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE 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
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<S> <C> <C> <C> <C>
2000 Employee Stock Purchase Plan
Common Stock, par value $.01 per share
(options) (2)................................. 1,500,000 shares $ 21.0625 $31,593,750.00 $8,340.75
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</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) For purposes of this computation, the Proposed Maximum Offering Price Per
Share has been estimated in accordance with Rule 457(h) under the
Securities Act of 1933 as to the 1,500,000 shares of common stock
authorized for issuance pursuant to the 2000 Employee Stock Purchase Plan,
solely for the purpose of calculating the registration fee. No options have
been granted with respect to such shares. The computation is based upon the
average of the high and low price of the common stock as reported on the
Nasdaq National Market on June 9, 2000 because the price at which the
options to be granted in the future may be exercised is not currently
determinable.
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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 Current Report on Form 8-K filed with the
Securities and Exchange Commission on June 5, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000, filed with the Securities and Exchange Commission
on May 15, 2000;
(c) The Registrant's Annual Report on Form 10-K for the year-ended
December 31, 1999, filed with the Securities and Exchange Commission on February
15, 2000;
(d) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A, file with the Securities and Exchange
Commission on May 21, 1999, under Sections 12(g) of the Securities Exchange Act
of 1934, as amended; and
(e) 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 June 1, 2000, attorneys
employed by Greenberg Traurig held 138,558 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, loaned
$100,000 to the Registrant at an interest rate of 12% per annum. Mr. Altenbach
currently serves as Secretary of the Registrant and many of 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
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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 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 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.
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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;
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
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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 June 12, 2000.
iXL Enterprises, Inc.
By: /s/ Mark Steele
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Name: Mark Steele
Title: Senior Vice President-Finance
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints U.
Bertram Ellis, Jr. and Mark Steele, 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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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ U. Bertram Ellis, Jr. Chief Executive Officer and Director June 12, 2000
------------------------------------------------ (Principal Executive Officer)
U. BERTRAM ELLIS, JR.
/s/ Mark Steele Senior Vice President - Finance June 12, 2000
------------------------------------------------ (Principal Financial Officer)
MARK STEELE
/s/ Jeffrey T. Arnold
----------------------------------------------- Director June 12, 2000
JEFFREY T. ARNOLD
/s/ Frank K. Bynum, Jr.
----------------------------------------------- Director June 12, 2000
FRANK K. BYNUM, JR.
/s/ Jerome D. Colonna
----------------------------------------------- Director June 12, 2000
JEROME D. COLONNA
/s/ William C. Nussey
----------------------------------------------- Director June 12, 2000
WILLIAM C. NUSSEY
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<TABLE>
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/s/ Thomas G. Rosencrants
----------------------------------------------- Director June 12, 2000
THOMAS G. ROSENCRANTS
/s/ Niraj Shah
----------------------------------------------- Director June 12, 2000
NIRAJ SHAH
/s/ Jeffrey C. Walker
----------------------------------------------- Director June 12, 2000
JEFFREY C. WALKER
/s/ Thomas R. Wall, IV
----------------------------------------------- Director June 12, 2000
THOMAS R. WALL, IV
/s/ Gary C. Wendt
----------------------------------------------- Director June 12, 2000
GARY C. WENDT
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EXHIBIT INDEX
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3.1 Amended and Restated Certificate of Incorporation.*
3.2 Amended and Restated Bylaws.*
5.1 Opinion of Greenberg Traurig, LLP
10.1 iXL Enterprises, Inc. 2000 Employee Stock Purchase Plan.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Greenberg Traurig, LLP (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 Registration Statement on Form S-4
(No. 333-81731).
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