Exhibit 3
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
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THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the "Agreement"),
dated as of June 8, 1999, among iXL Enterprises, Inc., a Delaware corporation
(the "Company") (formerly named IXL Holdings, Inc.), Xxxxx Investment Associates
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V, L.P. ("KIA V"), Xxxxx Equity Partners V, L.P. ("KEP V", and together with KIA
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V, "Xxxxx"), CB Capital Investors, L.P. ("CB") and the other stockholders of the
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Company (other than those stockholders who became stockholders by purchasing
shares of the Company's Common Stock in the Company's initial public offering).
Capitalized terms used herein shall have the meaning ascribed thereto in
Section 6.
WHEREAS, the Company, Xxxxx, certain management stockholders and
certain outside investors entered into a Second Amended and Restated
Stockholders' Agreement, dated as of December 17, 1997, as amended as of March
30, 1998 and August 14, 1998 (the "Second Amended and Restated Stockholders'
Agreement");
WHEREAS, the Second Amended and Restated Stockholders' Agreement may
be amended in accordance with Section 12 thereof;
WHEREAS, the Company, Xxxxx, those stockholders of the Company other
than Xxxxx owning at least 51% of all shares of Preferred Stock owned by all
such stockholders other than Xxxxx, those stockholders of the Company owning at
least 51% of all shares of Class B Common Stock, U. Xxxxxxx Xxxxx, Xx., Xxxxx
Xxxx, Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxx, CB Capital Investors, L.P., Flatiron
Partners, LLC, Greylock IX Limited Partnership, Mellon Ventures II, L.P. and
Thomson U.S. Inc. believe it to be in their best interests that they amend and
restate the Second Amended and Restated Stockholders' Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and obligations set forth in this Agreement, the
parties hereto agree as follows:
1. Second Amended and Restated Stockholders' Agreement. The Second
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Amended and Restated Stockholders' Agreement is hereby amended and restated in
its entirety as provided for herein.
2. Board of Directors.
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2.1 Designation of Director Nominees. (i) Xxxxx. For so
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long as Xxxxx or its Affiliates hold 5% or more in the aggregate of the
outstanding Common Stock of the Company, Xxxxx shall have (A) the right to
designate two individuals as Board of Directors nominees for election to the
Board of Directors of the Company, and (B) the exclusive right to designate for
election an individual to fill any vacancy created by the removal or death of or
resignation by a director originally designated for election by Xxxxx. Such
right shall terminate when Xxxxx or its Affiliates hold less than 5% of the
outstanding Common Stock of the Company.
(ii) CB. For so long as CB or its Affiliates hold 5% or more of
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the outstanding Common Stock of the Company, CB shall have (A) the right to
designate one individual as a Board of Directors nominee for election to the
Board of Directors of the Company, and (B) the exclusive right to designate for
election an individual to fill any vacancy created by the removal or death of or
resignation by a director originally designated for election by CB. Such right
shall terminate when CB or its Affiliates hold less than 5% of the outstanding
Common Stock of the Company. All calculations pursuant to this Section 2.1
shall be made on a primary basis.
(iii) If Xxxxx transfers 100% of the shares of Common Stock owned
by it as of the date of the filing of the Restated Certificate of Incorporation
of the Company (immediately after the reclassification of capital stock
effectuated by the Restated Certificate of Incorporation of the Company) to one
Person or a group of Affiliates, its transferees shall be deemed to be Xxxxx for
purposes of this Section 2.1. If Xxxxx transfers 50% or more, but less than
100%, of the shares of Common Stock owned by it as of the date of the filing of
the Restated Certificate of Incorporation of the Company (immediately after the
reclassification of capital stock effectuated by the Restated Certificate of
Incorporation of the Company) to one Person or a group of Affiliates, then such
transferees shall have the rights and obligations of Xxxxx under this Section
2.1 to the extent set forth in an instrument executed by Xxxxx and such
transferees. If CB transfers 100% of the shares of Common Stock owned by it as
of the date of the filing of the Restated Certificate of Incorporation of the
Company (immediately after the reclassification of capital stock effectuated by
the Restated Certificate of Incorporation of the Company) to one Person or a
group of Affiliates, its transferees shall be deemed to be CB for purposes of
this Section 2.1.
2.2 Method of Designation. All designations made pursuant to
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Section 2.1 shall be made in writing to the Chairman of the Board of Directors
of the Company (the "Chairman"), and any designation may be changed from time to
time by Xxxxx or CB, as the case may be, by providing written notice thereof to
the Chairman.
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2.3 Effect of Designation. Any designation made pursuant to
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this Section 2 shall be included as Board of Directors' nominations of persons
for election to the Board of Directors of the Company pursuant to Section 1.10
of the Amended and Restated Bylaws of the Company.
2.4 Vacancies. So long as this Agreement shall remain in
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effect, the Bylaws shall provide that Xxxxx or CB, as the case may be, shall
have the exclusive right, in accordance with Section 2.1, to designate for
election an individual to fill any vacancy created by the removal or death of or
resignation by a director originally designated for election by Xxxxx or CB, as
the case may be, pursuant to Section 2.1.
2.5 Restated Certificate of Incorporation; Bylaws. So long as
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this Agreement shall remain in effect, the Restated Certificate of Incorporation
and the Bylaws shall provide (i) that Xxxxx and CB shall have the right to
designate director nominees pursuant to Section 2.1 and (ii) the rights set
forth in Section 2.4 shall be an exception to the provisions set forth in the
Bylaws governing vacancies on the Board of Directors, and the Bylaws shall
provide that: (i) Xxxxx or CB shall have the right to call a special meeting of
stockholders for the purpose of voting on directors designated for election by
Xxxxx or CB, as the case may be, pursuant to Section 2.1 and (ii) the rights set
forth in Section 2.1 shall be an exception to the requirements set forth in the
Bylaws governing advance notice requirements for stockholder proposals and
director nominations.
2.6 Further Assurances of the Company. The Company will take
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all such actions and execute and deliver such documents as Xxxxx or CB may
reasonably request in order to effectuate the intent and purposes of this
Section 2.
3. Amendment and Modification. This Agreement may be amended,
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modified or supplemented only by written agreement of the Company, Xxxxx and CB.
4. Termination; Nonrenewability. All rights and obligations pursuant
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to this Agreement with respect to Xxxxx shall terminate as provided for in
Section 2.1(i). All rights and obligations pursuant to this Agreement with
respect to CB shall terminate as provided in Section 2.1(ii). From and after
the date hereof, no party hereto other than the Company, Xxxxx and CB shall have
any obligations under this Agreement. All rights and obligations terminated
pursuant to this Section 4 may not be renewed or reinstated.
5. Definitions. As used in this Agreement, the following terms
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shall have the meanings ascribed to them below:
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(a) Affiliate. The term "Affiliate" shall mean, with respect to any
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Person, any other Person directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with such
Person.
(b) Person. The term "Person" means an individual, corporation,
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partnership, limited liability company, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
(c) Stock. The term "Stock" shall mean all classes of the capital
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stock of the Company, including the following classes of stock:
(i) "Class A Common Stock" shall mean the Class A voting
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common stock of the Company, par value $.01 per share, and shall
include any capital stock of the Company into which such Class A
common stock is converted, reclassified or exchanged.
(ii) "Class B Common Stock" shall mean the Class B voting
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common stock of the Company, par value $.01 per share, and shall
include any capital stock of the Company into which such Class B
common stock is converted, reclassified or exchanged.
(iii) "Common Stock" shall mean the Class A Common Stock and
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the Class B Common Stock and shall include any capital stock of
the Company into which the Class A Common Stock and the Class B
Common Stock are converted, reclassified or exchanged.
(iv) "Class A Preferred Stock" shall mean the Class A
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convertible preferred stock of the Company, par value $.01 per
share, and shall include any capital stock of the Company into
which such Class A convertible preferred stock is converted,
reclassified or exchanged.
(v) "Class B Preferred Stock" shall mean the Class B
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convertible preferred stock of the Company, par value $.01 per
share, and shall include any capital stock of the Company into
which such Class B convertible preferred stock is converted,
reclassified or exchanged.
(vi) "Class C Preferred Stock" shall mean the Class C
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nonvoting convertible preferred stock of the Company, par value
$.01 per share, and shall include any capital stock of the
Company into
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which such Class C convertibel preferred stock is converted,
reclassified or exchange.
(vii) "Class D Preferred Stock" shall mean the Class D
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nonvoting preferred stock of the Company, par value $.01 per
share, and shall include any capital stock of the Company into
which such Class D convertible preferred stock is converted,
reclassified or exchanged.
(viii) "Preferred Stock" shall mean the Class A Preferred
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Stock, the Class B Preferred Stock, the Class C Preferred Stock
and the Class D Preferred Stock.
6. Further Assurances. Each of the Company, Xxxxx and CB shall do
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and perform or cause to be done and performed all such further acts and things
and shall execute and deliver all such other agreements, certificates,
instruments and documents as any other party hereto or Person subject hereto may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
7. Governing Law. This Agreement and the rights and obligations of
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the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof.
8. Invalidity of Provision. The invalidity or unenforceability of
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any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
9. Notices. All notices, requests, demands, waivers and other commu
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nications required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given if (a) delivered personally,
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(b) mailed, certified or registered mail with postage prepaid, (c) sent by next-
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day or overnight mail or delivery or (d) sent by telecopier as follows:
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(a) if to the Company, to it at:
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iXL Enterprises, Inc.
0000 Xxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. U. Xxxxxxx Xxxxx, Xx.
Telecopier number: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier number: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.;
(b) If to Xxxxx, to it at:
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Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier number: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier number: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.;
(c) If to CB, to it at:
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CB Capital Investors, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier number: (212)
Attention: I. Xxxxxx Xxxxxx
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with a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
X'Xxxxxxxx Graev & Karbell
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier number: (000) 000-0000;
or to such other person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (w) if by personal delivery
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on the day after such delivery, (x) if by certified or registered mail, on the
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seventh business day after the mailing thereof, (y) if by next-day or overnight
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mail or delivery, on the day delivered or (z) if by telecopier on the next day
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following the day on which such telecopy was sent, provided that a copy is also
sent by certified or registered mail.
10. Headings; Execution in Counterparts. The headings and captions
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contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
11. Effective Date. This Agreement shall become effective upon the
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closing of the Company's initial public offering of its common stock, par value
$0.01 per share.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of the date first above written.
iXL ENTERPRISES, INC.
By: /s/ U. Xxxxxxx Xxxxx
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Name: U. Xxxxxxx Xxxxx, Xx.
Title: Chairman & Chief Executive Officer
XXXXX INVESTMENT ASSOCIATES V, L.P.
By: XXXXX PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxx XX
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Name: Xxxxxx X. Xxxx, XX
Title: General Partner
XXXXX EQUITY PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxx XX
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Name: Xxxxxx X. Xxxx, XX
Title: General Partner
STOCKHOLDERS, OTHER THAN XXXXX,
OWNING AT LEAST 51% OF THE
PREFERRED STOCK OF THE COMPANY:
CB CAPITAL INVESTORS, L.P.
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ I.R. Xxxxxx
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Name: I.R. Xxxxxx
Title: General Partner
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FLATIRON PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Partner
THE FLATIRON FUND 1998/99, LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Partner
FLATIRON ASSOCIATES, LLC
By: Flatiron Partners, LLC, its Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Partner
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx Xx.
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Name: Xxxxxx Xxxxxxxxxx Xx.
Title: Department Operations Manager
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GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership, its
General Partner
By: /s/ Xxxxx X. McGance
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Name: Xxxxx X. McGance
Title: General Partner
MELLON VENTURES II, L.P., a Delaware
Limited Partnership
By: MVMA II, L.P., a Delaware limited
partnership, its General Partner
By: MVMA, Inc., a Delaware corporation,
its General Partner
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Principal
THOMSON U.S. INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ U. Xxxxxxx Xxxxx, Xx.
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U. Xxxxxxx Xxxxx, Xx.
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SHAREHOLDERS OWNING AT LEAST 51%
OF THE CLASS B COMMON STOCK OF
THE COMPANY:
/s/ Xxxxx Xxxxx Xxxxx
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Xxxxx Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxx Xxxx
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Xxxx Xxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
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/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
/s/ Xxxxx X. Xxxxx XX
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Xxxxx X. Xxxxx XX
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxx III
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Xxxxxxx X. Xxxxx III
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ U. Xxxxxxx Xxxxx, Xx.
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U. Xxxxxxx Xxxxx, Xx.
/s/ Xxxxxxx Xxxxxxx Xxxxx
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Xxxxxxx Xxxxxxx Xxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxxx Gear
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Xxxxxx Gear
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx.
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/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxx Parent
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Xxxx Parent
/s/ N. Xxxxx Xxxxxx
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N. Xxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
GE Capital Equity Investments, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
/s/ Xxxxx Xxxx
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Wall 1999 Special Trust
/s/ Xxxxx Xxxx
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Wall 1999 Family Trust
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