EXHIBIT 2.7
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
IXL HOLDINGS, INC.,
IXL, INC.
WEBBED FEET, LLC,
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
DATED AS OF FEBRUARY 14, 1997
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT is entered into this 14th day of February,
1997, by and between WEBBED FEET, LLC, a Georgia limited liability company
("Seller"), IXL, INC., a Delaware corporation ("Buyer") IXL HOLDINGS, INC., a
Delaware corporation ("IXL"), and the members of Webbed Feet as listed on the
signature page hereto (the "Webbed Feet Members").
R E C I T A L S:
- - - - - - - -
A. Seller is engaged in the business of creating and maintaining websites
for companies (the "Business").
B. The Webbed Feet Members own 100% of the issued and outstanding
membership interests of Seller.
C. Seller is willing to sell to Buyer and Buyer is willing to purchase
from Seller, substantially all of the assets, business, properties and rights of
Seller related to the conduct of the Business on the terms and subject to the
conditions set forth herein.
D. Buyer is a wholly owned subsidiary of IXL.
NOW, THEREFORE, in consideration of the mutual covenants, benefits,
conditions and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
ARTICLE I
PURCHASE AND SALE
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1.1 Purchase and Sale. Contemporaneously with the execution and delivery
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of this Agreement, and upon the terms and conditions hereof, Seller shall sell
and deliver to Buyer, and Buyer shall purchase, all of Seller's right, title and
interest in and to the assets of Seller described on Schedule 1.1 hereto
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(collectively, the "Purchased Assets"). Notwithstanding any implication to the
contrary contained herein, the Purchased Assets shall not include any cash held
by Seller, as reflected on the Financial Statement (as defined in Section 2.4
hereof).
1.2 The Closing. The closing of the aforementioned purchase and sale (the
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"Closing") shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A Professional
Corporation, One Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the parties may mutually agree.
1.3 Purchase Price. As consideration for the purchase of the Purchased
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Assets, Buyer shall pay to Seller an amount equal to $160,000.00 (the "Purchase
Price"), payable as follows:
(a) 400 shares of validly issued, fully paid and nonassessable Class
B Common Stock of IXL, $.01 par value (the "IXL Stock"), valued at $250.00 per
share as of the date hereof, 66 2/3% of which (267 shares) shall be delivered to
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, and 33 1/3% of which (133 shares) shall be delivered
to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in each case, at the Closing in accordance with Section
5.2 hereof; and
(b) cash in the amount of $60,000.00 (made payable to Cygnus Media
Corporation).
1.4 Assumption of Liabilities. In addition to the payment of the Purchase
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Price, as additional consideration for the purchase of the Purchased Assets,
Buyer shall assume the liabilities of Seller listed on Schedule 1.4 hereto (the
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"Assumed Liabilities").
1.5 Allocation of Purchase Price. The Purchase Price will be allocated
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among the Purchased Assets in accordance with their respective net book values,
as reflected on the most recent Financial Statement. Each of the parties hereto
agrees to report the federal, state and local income and other tax consequences
of the transactions contemplated by this Agreement in a manner consistent with
such allocation.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller and the Webbed Feet Members, jointly and severally, represent and
warrant to Buyer, which representations and warranties shall survive the Closing
in accordance with Section 7.1 of this Agreement, as follows:
2.1 Organization and Qualification. Seller is a limited liability company
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duly organized, validly existing and in good standing under the laws of the
State of Georgia. Seller has the requisite power and authority to carry on the
Business as it is now being conducted and is duly qualified or licensed to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned or held under lease or the nature of its activities makes
such qualification necessary. Complete and correct copies of the Articles of
Organization and the Operating Agreement of the Seller, dated as of February 28,
1996 and as amended January 17, 1997 (as amended, the "Operating Agreement"),
both as in effect on the date hereof are attached as Schedule 2.1 hereto.
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2.2 Authority. Seller has the necessary power and authority to execute
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and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby by Seller have been duly and validly
authorized and approved by the Webbed Feet Members in accordance with the terms
of the Operating Agreement and applicable law, and no other proceedings on the
part
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of Seller or the Webbed Feet Members are necessary to authorize or approve this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Seller and each Webbed Feet Member, and
assuming the due authorization, execution and delivery by Buyer, constitutes the
valid and binding obligation of Seller and each Webbed Feet Member, enforceable
against Seller and each Webbed Feet Member in accordance with its terms.
2.3 No Conflicts, Required Filings and Consents. None of the execution
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and delivery of this Agreement by Seller or the Webbed Feet Members, the
consummation by Seller and the Webbed Feet Members of the transactions
contemplated hereby or compliance by Seller with any of the provisions hereof
will:
(a) conflict with or violate the Articles of Organization of Seller or
the Operating Agreement;
(b) result in a violation of any statute, ordinance, rule, regulation,
order, judgment or decree applicable to Seller or the Purchased Assets;
(c) result in a violation or breach of, or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, contract, agreement,
arrangement, lease, license, permit, judgment, decree, franchise or other
instrument or obligation to which Seller is a party or by which the Purchased
Assets may be bound or affected (collectively, for purposes of this Section 2.3,
a "Webbed Feet Agreement");
(d) result in the creation of any Lien on any of the Purchased Assets;
or
(e) require any consent, waiver, license, approval, authorization,
order, permit, registration or filing with, or notification to (any of the
foregoing being a "Consent"), of (i) any government or subdivision thereof,
whether domestic, foreign or multinational, or any administrative, governmental,
or regulatory authority, agency, commission, court, tribunal or body, whether
domestic, foreign or multinational (a "Governmental Entity"); or (ii) any other
individual, corporation, trust, partnership, limited liability company or other
entity (collectively, a "Person").
2.4 Financial Statements. Seller has heretofore furnished Buyer with a
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true and complete copy of the unaudited financial statement of Seller for the
period ending January 7, 1997, a copy of which is attached hereto as Schedule
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2.4 (the "Financial Statement"). The Financial Statement has been prepared in
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accordance with generally accepted accounting principles, consistently followed
throughout the period indicated, and presents fairly the financial position and
operating results of Seller as of the dates, and during the periods, indicated
therein. The Financial Statement is complete and correct in all material
respects.
2.5 Absence of Changes. Except as provided in Schedule 2.5 hereto, since
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January 7, 1997, (a) Seller has not entered into any transaction affecting the
Purchased Assets that was
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not in the ordinary course of business; (b) there has been no material damage,
destruction or loss of any of the Purchased Assets (whether or not covered by
insurance); (c) Seller has not failed to satisfy any of its debts, obligations
or liabilities related to the Business or the Purchased Assets as the same
become due and owing; and (d) there has been no other event or condition
pertaining to and materially affecting the Purchased Assets or the ability of
Seller to consummate the transactions contemplated by this Agreement.
2.6 Undisclosed Liabilities. Seller does not have any debt, liability or
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obligation of any kind, whether accrued, absolute or otherwise, including,
without limitation, any liability or obligation on account of taxes or any
governmental charges or penalty, interest or fines, except (a) liabilities not
in excess of $5,000 (whether individually or in the aggregate) incurred in the
ordinary course of business after January 7, 1997; (b) liabilities reflected on
the Financial Statement; and (c) liabilities incurred as a result of the
transactions contemplated by this Agreement.
2.7 Purchased Assets. The Purchased Assets include all of the assets,
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properties and rights of every type and description, real, personal and mixed,
tangible and intangible, that are necessary for, or used in, the conduct of the
Business as conducted by Seller.
2.8 Title to Properties. Except as set forth on Schedule 2.8 hereto,
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Seller has good and marketable title to all of the Purchased Assets (other than
leasehold interests), and good title to all leasehold interests included as part
of the Purchased Assets, in each case, free and clear of any and all Liens other
than liens for taxes not yet due and payable.
2.9 Equipment. Each item of tangible personal property included in the
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Purchased Assets is in good condition and repair, ordinary wear and tear
excepted.
2.10 Intellectual Property. Seller owns, or is validly licensed or
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otherwise has the right to use or exploit, all intangible property (including,
without limitation, trade names, trademarks, patents, copyrights and software)
included in the Purchased Assets (the "Intangible Property"), free of any
obligation to make any payment (whether of a royalty, license fee, compensation
or otherwise). No claims are pending or, to the knowledge of Seller,
threatened, that Seller is infringing or otherwise adversely affecting the
rights of any Person with regard to any item of Intangible Property. Seller has
used its reasonable best efforts to protect its rights in the Intangible
Property and, to the knowledge of Seller, no Person is infringing the rights of
Seller with respect to any Intangible Property. No intangible property is
required for the conduct of the Business other than the Intangible Property.
2.11 Contracts. Schedule 2.11 hereto sets forth a complete list of all
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agreements and commitments (whether oral or written) to which Seller is a party,
or by which the Purchased Assets may otherwise be bound or affected (the
"Contracts"). Complete and accurate copies of the Contracts have previously
been delivered to Buyer. Neither Seller nor, to the knowledge of Seller and the
Webbed Feet Members, any other party to any of the Contracts, (a) is in default
under (nor does there exist any condition that, with notice or lapse of time or
both, would cause such a default under) any of the Contracts, or (b) has waived
any material right it may have
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under any of the Contracts. All of the Contracts constitute the valid and
binding obligation of Seller, and, to the knowledge of Seller and the Webbed
Feet Members, the other parties thereto.
2.12 Litigation. Except as set forth on Schedule 2.12 hereto, there is no
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suit, action, claim, investigation or proceeding pending or, to the knowledge of
Seller and the Webbed Feet Members, threatened against or affecting Seller or
the Purchased Assets, nor is there any judgment, decree, injunction or order of
any applicable Governmental Entity or arbitrator outstanding against Seller
that, either individually or in the aggregate, would have a material adverse
effect on the Purchased Assets or the financial condition of Seller.
2.13 Payroll Information. Schedule 2.13 hereto sets forth a true and
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complete copy of the most recent payroll report of Seller, showing all current
employees of Seller and their current levels of compensation, other than bonuses
and other extraordinary compensation. Also set forth on Schedule 2.13 are the
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dates and amounts of the latest raises (by percentage) provided to the employees
of Seller.
2.14 Employee Benefit Plans/Labor Relations.
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(a) Except as disclosed in Schedule 2.14 hereto, there are no
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employee benefit plans, agreements or arrangements maintained by Seller,
including, without limitation, (i) "employee benefit plans," within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"); (ii) affirmative action plans; (iii) current or deferred
compensation, pension, profit sharing, vacation or severance plans or programs;
or (iv) medical, hospital, accident, disability or death benefit plans
(collectively, "Webbed Feet Benefit Plans"). All Webbed Feet Benefit Plans are
administered in accordance with, and are in compliance with, all applicable laws
and regulations. No default exists with respect to the obligations of Seller
under any Webbed Feet Benefit Plans.
(b) Seller is not a party to any collective bargaining agreement, no
such agreement determines the terms and conditions of employment of any employee
of Seller, no collective bargaining agent has been certified as a representative
of any of the employees of Seller, no representation campaign or election is now
in progress with respect to any employee of Seller and there are no labor
disputes, grievances, controversies, strikes or requests for union
representation pending, or, to the knowledge of Seller and the Webbed Feet
Members, threatened, relating to or affecting the Business. To the knowledge of
Seller and the Webbed Feet Members, no event has occurred that could give rise
to any such dispute, controversy, strike or request for representation.
2.15 ERISA.
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(a) All Webbed Feet Benefit Plans that are subject to ERISA have
been administered in accordance with, and are in compliance with, the applicable
provisions of ERISA. Each of Webbed Feet Benefit Plans that is intended to meet
the requirements of Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code") has been determined by the Internal Revenue Service to meet
such requirements within the meaning of such provision. No
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Webbed Feet Benefit Plan is subject to Title IV of ERISA or Section 412 of the
Code. Seller has not engaged in any non-exempt "prohibited transactions," as
such term is defined in Section 4975 of the Code or Section 406 of ERISA,
involving Webbed Feet Benefit Plans that would subject Seller to the penalty or
tax imposed under Section 502(i) of ERISA or Section 4975 of the Code. Seller
has not engaged in any transaction described in Section 4069 of ERISA within the
last five years. Except as disclosed in Schedule 2.15 hereto, neither the
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execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment (including,
without limitation, severance, unemployment compensation or golden parachute)
becoming due to any director or other employee of Seller, (ii) increase any
benefits otherwise payable under any Webbed Feet Benefit Plan or (iii) result in
the acceleration of the time of payment or vesting of any such benefits to any
extent.
(b) No notice of a "reportable event," within the meaning of Section
4043 of ERISA for which the 30-day reporting requirement has not been waived,
has been required to be filed for any Webbed Feet Benefit Plan that is an
"employee pension benefit plan" within the meaning of Section 3(2) of ERISA and
that is intended to meet the requirements of Section 401(a) of the Code (a
"Pension Plan"), or by any entity that is considered one employer with Seller
under Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate"),
within the 12-month period ending on the date hereof. Seller has not incurred
any liability to the Pension Benefit Guaranty Corporation in respect of any
Webbed Feet Benefit Plan that remains unpaid.
2.16 Taxes. Seller has duly and timely filed all federal, state and
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local income, franchise, excise, real and personal property and other tax
returns and reports, including extensions, required to have been filed by Seller
on or prior to the date hereof. Seller has duly and timely paid all taxes and
other governmental charges, and all interest and penalties with respect thereto,
required to be paid by Seller (whether by way of withholding or otherwise) to
any federal, state, local or other taxing authority (except to the extent the
same are being contested in good faith, and adequate reserves therefore have
been provided in the Financial Statement). As of the date hereof, all
deficiencies proposed as a result of any audits have been paid or settled.
2.17 Compliance with Applicable Laws. Seller holds all permits,
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licenses, variances, exemptions, orders and approvals of all Governmental
Entities necessary to own, lease or operate all of the Purchased Assets, as
appropriate, and to carry on the Business as now conducted (the "Permits"). To
the knowledge of Seller and the Webbed Feet Members, Seller is in compliance
with all applicable laws, ordinances and regulations and the terms of the
Permits. Schedule 2.17 hereto sets forth a list of the Permits, a true and
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correct copy of each of which has been provided to Buyer.
2.18 Brokers. Except as set forth on Schedule 2.18 hereto, no broker or
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finder is entitled to any broker's or finder's fee or other commission in
connection with the transactions contemplated by this Agreement as a result of
arrangements made by or on behalf of Seller.
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2.19 Interest in Customers, Suppliers and Competitors. Except as
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provided in Schedule 2.19 hereto, no member, manager or employee of Seller, and
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no family member of any of the foregoing, has any direct or indirect interest in
any customer, supplier or competitor of Seller, or in any Person from whom or to
whom Seller leases any real or personal property, or in any other Person with
whom Seller is doing business, whether directly or indirectly (including,
without limitation, as a debtor or creditor), whether in existence as of the
date hereof or proposed, other than the ownership of stock of publicly traded
corporations that does not exceed 1% of the issued and outstanding stock of such
corporation.
2.20 Accounts Receivable. All accounts, notes, contracts and other
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receivables of Seller included in the Assumed Liabilities (collectively,
"Accounts Receivable") were acquired by Seller in the ordinary course of
business arising from bona fide transactions completed in accordance with the
terms and provisions contained in any documents related thereto. There are no
set-offs, counterclaims or disputes asserted with respect to any Accounts
Receivable that would result in claims in excess of the reserve for bad debts
set forth on the Financial Statement and, to the knowledge of Seller and the
Webbed Feet Members, subject to such reserve, all Accounts Receivable are
collectible in full.
2.21 Accounts Payable. All accounts, notes, contracts and other amounts
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payable of Seller included in the Purchased Assets are currently within their
respective terms, and are neither in default nor otherwise past due by more than
30 days.
2.22 Insurance. Seller currently maintains, and has, for at least the
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past year maintained, in full force and effect, all insurance policies that are
either (a) required to be maintained for the conduct of the Business or the
ownership of the Purchased Assets; or (b) otherwise maintained by companies
engaged in a business comparable to the Business (collectively, the "Insurance
Policies"). All of the Insurance Policies are listed on Schedule 2.22 hereto,
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and true and compete copies of all Insurance Policies have previously been
provided to Buyer. Seller (i) is not in default regarding the provisions of any
Insurance Policy; (ii) has paid all premiums due thereunder; and (iii) has not
failed to present any notice or present any material claim thereunder in a due
and timely fashion.
2.23 Bankruptcy. Neither Seller, the Webbed Feet Members, nor any
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entities affiliated, related or controlled by any of such parties, has filed a
petition or request for reorganization or protection or relief under the
bankruptcy laws of the United States or any state or territory thereof, made any
general assignment for the benefit of creditors, or consented to the appointment
of a receiver or trustee, including a custodian under the United States
bankruptcy laws, whether such receiver or trustee is appointed in a voluntary or
involuntary proceeding.
2.24 Investment Purpose; Investment Purpose. Each Webbed Feet Member
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represents that he is an "accredited investor" as such term is defined in Rule
501 of Regulation D promulgated by the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"). Each Webbed Feet
Member further represents that he is acquiring the IXL Stock solely for his own
account for investment and not with a view to, or for sale in connection with,
any distribution thereof. Each Webbed Feet Member agrees that he will
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not, directly or indirectly, offer, transfer, sell, pledge, hypothecate or
otherwise dispose of any IXL Stock (or solicit any offers to buy, purchase or
other acquire or take a pledge of any such shares) except in compliance with the
Securities Act and the rules and regulations thereunder, other applicable laws,
rules and regulations, and the Stockholders Agreement of Seller, dated as of
April 30, 1996, as amended December 13, 1996 (the "Stockholders Agreement").
2.25 Restrictions on Transfer. Each Webbed Feet Member acknowledges that
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(a) the IXL Stock received by him hereunder has not been registered under the
Securities Act; (b) the IXL Stock may be required to be held indefinitely, and
the Webbed Feet Members must continue to bear the economic risk of the
investment in such shares unless such shares are subsequently registered under
the Securities Act or an exemption from such registration is available; (c)
there may not be any public market for the IXL Stock in the foreseeable future;
(d) Rule 144 promulgated under the Securities Act is not presently available
with respect to sales of any securities of Buyer, and such Rule is not
anticipated to be available in the foreseeable future; (e) when and if IXL Stock
may be disposed of without registration in reliance upon Rule 144, such
disposition can be made only in limited amounts and in accordance with the terms
and conditions of such Rule; (f) if the exemption afforded by Rule 144 is not
available, public sale without registration will require the availability of an
exemption under the Securities Act; (g) the IXL Stock is subject to the terms
and conditions of the Stockholders Agreement; (h) restrictive legends shall be
placed on the certificates representing IXL Stock; and (i) a notation shall be
made in the appropriate records of Seller indicating that IXL Stock is subject
to restrictions on transfer and, if Seller should in the future engage the
services of a stock transfer agent, appropriate stop-transfer instructions will
be issued to such transfer agent with respect to IXL Stock.
2.26 Disclosure. No statement of fact by Seller contained in this
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Agreement and no written statement of fact furnished or to be furnished by
Seller to Buyer pursuant to or in connection with this Agreement contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements herein or
therein contained not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents and warrants to Seller and the Webbed Feet Members, which
representations and warranties shall survive the Closing in accordance with
Section 7.1 of this Agreement, as follows:
3.1 Organization and Qualification. Buyer is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the requisite corporate power and authority to carry on its
business as it is now being conducted and is duly qualified or licensed to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned or held under lease or the nature of its activities makes
such qualification necessary.
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3.2 Authority. Buyer has the necessary corporate power and authority to
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execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Buyer have been duly and
validly authorized and approved by its Board of Directors and shareholders, and
no other corporate or shareholder proceedings on the part of Buyer, its Boards
of Directors or shareholders, are necessary to authorize or approve this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Buyer, and assuming the due
authorization, execution and delivery by Seller and the Webbed Feet Members,
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with its terms.
3.3 No Conflicts, Required Filings and Consents. None of the execution
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and delivery of this Agreement by Buyer, the consummation by Buyer of the
transactions contemplated hereby or compliance by Buyer with any of the
provisions hereof will:
(a) conflict with or violate the Articles of Incorporation or Bylaws
of Buyer;
(b) result in a violation of any statute, ordinance, rule, regulation,
order, judgment or decree applicable to Buyer, or by which Buyer, its properties
or assets may be bound or affected;
(c) result in a violation or breach of, or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, contract, agreement,
arrangement, lease, license, permit, judgment, decree, franchise or other
instrument or obligation to which Buyer is a party or by which Buyer or its
properties may be bound or affected (collectively, for purposes of this Section
3.3, an "IXL Agreement");
(d) result in the creation of any Lien on any of the property or
assets of Buyer; or
(e) require any Consent of (i) any Governmental Entity (except for
compliance with any applicable securities laws) or (ii) any other Person.
3.4 Litigation. Except as set forth on Schedule 3.4 hereto, there is no
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suit, action, claim, investigation or proceeding pending or, to the knowledge of
Buyer, threatened against or affecting Buyer, nor is there any judgment, decree,
injunction or order of any applicable Governmental Entity or arbitrator
outstanding against Buyer that, either individually or in the aggregate, would
have a material adverse effect on the assets, business or financial condition of
Buyer.
3.5 Brokers. Except as disclosed on Schedule 3.5 hereto, No broker or
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finder is entitled to any broker's or finder's fee in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Buyer.
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3.6 IXL Stock.
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(a) The authorized capital stock of IXL consists of (i) (A) 250,000
shares of Class A Common Stock, $.01 par value, of which no shares are validly
issued and outstanding, and (B) 1,000,000 shares of Class B Common Stock, $.01
par value, of which 40,348 shares are validly issued and outstanding (without
taking into account any shares of IXL Stock to be issued pursuant to this
Agreement), fully paid and nonassessable; and (ii) 250,000 shares of Class A
Convertible Preferred stock, of which 111,500 shares are validly issued and
outstanding, fully paid and nonassessable. All outstanding securities of IXL
were issued in accordance with applicable federal and state securities laws.
Except as set forth on Schedule 3.6(a) hereto, there are no options, warrants,
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calls, agreements, commitments or other rights presently outstanding that would
obligate IXL to issue, deliver or sell shares of its capital stock, or to grant,
extend or enter into any such option, warrant, call, agreement, commitment or
other right. In addition to the foregoing, as of the date hereof, IXL has no
bonds, debentures, notes or other indebtedness issued or outstanding that have
voting rights in IXL under ordinary circumstances.
(b) The holders of record of the issued and outstanding shares of IXL
Stock are set forth on Schedule 3.6(b) hereto.
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(c) When delivered to Seller in accordance with the terms hereof, the
IXL Stock will (d) be fully paid and nonassessable, (e) represent approximately
1% of the issued and outstanding shares of IXL Stock, and (f) represent, on an
as-converted and fully diluted basis, approximately .3% of the issued and
outstanding capital stock of IXL, (g) and be free and clear of all Liens, other
than liens for taxes not yet due and payable.
ARTICLE IV
ADDITIONAL AGREEMENTS
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4.1 Public Announcements. The parties agree that, except as may otherwise
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be required to comply with applicable laws and regulations (including, without
limitation, applicable securities laws), public disclosure of the transactions
contemplated by this Agreement shall be coordinated between the parties, and no
party shall make any such disclosure without the prior consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
4.2 Efforts; Consents.
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(a) Subject to the terms and conditions herein provided, and fiduciary
duties under applicable law, each of the parties hereto agrees to use its
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable, to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement and to cooperate with each other in connection with the foregoing.
Without limiting the generality of the foregoing, each of Seller, the Webbed
Feet Members and Buyer shall (i) obtain or cause to be obtained all Consents
required to be obtained in connection with the transactions contemplated by this
Agreement, (ii) make or cause to be
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made all required filings with applicable Governmental Entities, and (iii) use
its reasonable efforts to fulfill all conditions to this Agreement.
(b) Each of Buyer and Seller shall promptly provide the other with a
copy of any inquiry or request for information (including notice of any oral
request for information), pleading, order or other document either party
receives from any Governmental Entity with respect to the matters referred to in
this Section 4.2.
ARTICLE V
DELIVERIES AT OR PRIOR TO CLOSING
---------------------------------
5.1 Deliveries of Seller.
--------------------
(a) At the Closing, Seller and the Webbed Feet Members shall deliver,
or cause to be delivered, to Buyer, properly executed and dated as of the date
hereof: (i) the ▇▇▇▇ of Sale and Assignment in the form of Exhibit "A" hereto
-----------
(the "▇▇▇▇ of Sale"); (ii) an Agreement to be Bound to Registration Rights
Agreement, substantially in the form of Exhibit "B" hereto (the "Agreement to be
-----------
Bound to Registration Rights Agreement"); (iii) an Agreement to be Bound to
Stockholders Agreement, substantially in the form of Exhibit "C" hereto (the
-----------
"Agreement to be Bound to Stockholders Agreement"); (iv) a closing certificate
of Seller, substantially in the form of Exhibit "D" hereto; (v) such other
-----------
documents as Buyer shall reasonably request.
(b) In addition to the foregoing, at or prior to the Closing, Seller
and the Webbed Feet Members shall have (i) obtained or caused to be obtained all
of the Consents listed on Schedule 5.1(b) hereto; and (ii) delivered to Buyer a
---------------
Certificate of Existence of Seller, and a copy of the Articles of Organization
of Seller, both as certified by the Secretary of State of Georgia.
5.2 Deliveries of Buyer.
-------------------
(a) In addition to the payment of the Purchase Price in accordance
with Section 1.3 hereof (including the delivery of certificates representing the
shares of IXL Stock being delivered to Seller in connection therewith), at the
Closing, Buyer shall deliver, or cause to be delivered, to Seller, properly
executed and dated as of the date hereof: (i) the ▇▇▇▇ of Sale; (ii) a closing
certificate of Buyer, substantially in the form of Exhibit "E" hereto; (iii) the
-----------
Agreement to be Bound to Registration Rights Agreement; (iv) the Agreement to be
Bound to Stockholders Agreement; and (v) such other documents as Seller shall
reasonably request.
(b) In addition to the foregoing, at or prior to the Closing, Buyer
shall have (i) obtained or caused to be obtained all of the Consents listed on
Schedule 5.2(b) hereto; and (ii) delivered to Seller a Certificate of Existence
---------------
of Buyer, and a copy of the Certificate of Incorporation of Buyer, both as
certified by the Secretary of State of Delaware.
11
ARTICLE VI
INDEMNIFICATION
---------------
6.1 Indemnification by Buyer. Buyer shall indemnify and hold Seller, the
------------------------
Webbed Feet Members and Seller's employees (collectively, the "Seller
Indemnified Parties") harmless from and against, and agree promptly to defend
each of the Seller Indemnified Parties from and reimburse each of the Seller
Indemnified Parties for, any and all losses, damages, costs, expenses,
liabilities, obligations and claims of any kind (including, without limitation,
reasonable attorney fees and other legal costs and expenses) that any of the
Seller Indemnified Parties may at any time suffer or incur, or become subject
to, as a result of or in connection with:
(a) any breach or inaccuracy of any of the representations and
warranties made by Buyer in or pursuant to this Agreement, or in any instrument,
certificate or affidavit delivered by Buyer at the Closing in accordance with
the provisions hereof;
(b) any failure by Buyer to carry out, perform, satisfy and discharge
any of its respective covenants, agreements, undertakings, liabilities or
obligations under this Agreement or under any of the documents and materials
delivered by Buyer pursuant to this Agreement; and
(c) any suit, action or other proceeding arising out of, or in any way
related to, any of the matters referred to in this Section 6.1.
6.2 Indemnification by Seller. Each of Seller and the Webbed Feet Members
-------------------------
shall jointly and severally indemnify and hold Buyer, its shareholders,
directors, officers and employees (collectively, the "Buyer Indemnified
Parties") harmless from and against, and agree to promptly defend each of the
Buyer Indemnified Parties from and reimburse each of the Buyer Indemnified
Parties for, any and all losses, damages, costs, expenses, liabilities,
obligations and claims of any kind (including, without limitation, reasonable
attorney fees and other legal costs and expenses) that any of the Buyer
Indemnified Parties may at any time suffer or incur, or become subject to, as a
result of or in connection with:
(a) any breach or inaccuracy of any representations and warranties
made by Seller or Webbed Feet Members in or pursuant to this Agreement, or in
any certificate or affidavit delivered by the same at the Closing in accordance
with the provisions hereof;
(b) any failure by Seller or Webbed Feet Members to carry out,
perform, satisfy and discharge any of their respective covenants, agreements,
undertakings, liabilities or obligations under this Agreement or under any of
the documents and materials delivered by Seller pursuant to this Agreement; and
(c) any suit, action or other proceeding arising out of, or in any way
related to, any of the matters referred to in this Section 6.2.
12
6.3 Notification of Claims; Election to Defend.
------------------------------------------
(a) A party entitled to be indemnified pursuant to Section 6.1 or 6.2
hereof, as the case may be (the "Indemnified Party"), shall notify the party
liable for such indemnification (the "Indemnifying Party") in writing of any
claim or demand (a "Claim") that the Indemnified Party has determined has given
or could give rise to a right of indemnification under this Agreement. Subject
to the Indemnifying Party's right to defend in good faith third party Claims as
hereinafter provided, the Indemnifying Party shall satisfy its obligations under
this Article VI within 30 days after the receipt of written notice thereof from
the Indemnified Party. Any amounts paid thereafter shall include interest
thereon for the period commencing at the end of such 30-day period and ending on
the actual date of payment, at a rate of 15% per annum, or, if lower, at the
highest rate of interest permitted by applicable law at the time of such
payment.
(b) If the Indemnified Party shall notify the Indemnifying Party of
any Claim pursuant to Section 6.3(a) hereof, and if such Claim relates to a
Claim asserted by a third party against the Indemnified Party that the
Indemnifying Party acknowledges is a Claim for which it must indemnify or hold
harmless the Indemnified Party under Section 6.1 or 6.2 hereof, as the case may
be, the Indemnifying Party shall have the right, at its sole cost and expense,
to employ counsel reasonably acceptable to the Indemnified Party to defend any
such Claim asserted against the Indemnified Party. The Indemnified Party shall
have the right to participate in the defense of any such Claim. The
Indemnifying Party shall notify the Indemnified Party in writing, as promptly as
possible (but in any case before the due date for the answer or response to a
claim) after the date of the notice of claim given by the Indemnified Party to
the Indemnifying Party under Section 6.3(a) hereof of its election to defend in
good faith any such third party Claim. So long as the Indemnifying Party is
defending in good faith any such Claim asserted by a third party against the
Indemnified Party, the Indemnified Party shall not settle or compromise such
Claim without the prior written consent of the Indemnifying Party. The
Indemnified Party shall cooperate with the Indemnifying Party in connection with
any such defense and shall make available to the Indemnifying Party or its
agents all records and other materials in the Indemnified Party's possession
reasonably required by it for its use in contesting any third party Claim;
provided, however, that the Indemnifying Party shall have agreed, in writing, to
-------- -------
keep such records and other materials confidential expect to the extent required
for defense of the relevant Claim. Whether or not the Indemnifying Party elects
to defend any such Claim, the Indemnified Party shall have no obligations to do
so. Within 30 days after a final determination (including, without limitation,
a settlement) has been reached with respect to any Claim contested pursuant to
this Section 8.2(b), the Indemnifying Party shall satisfy its obligations with
respect thereto. Any amounts paid thereafter shall include interest thereon for
the period commencing at the end of such 30-day period and ending on the actual
date of payment, at a rate of 15% per annum,
13
or, if lower, at the highest rate of interest permitted by applicable law at the
time of such payment.
6.4 Limit on Indemnification. Notwithstanding any implication to the
------------------------
contrary contained herein, the parties hereby agree that the maximum amount of
indemnification to which the Buyer Indemnified Parties, whether individually or
collectively, or the Seller Indemnified Parties, whether individually or
collectively, shall be entitled under this Article VI shall be $100,000.00 in
the aggregate. The parties acknowledge and agree that such a limitation is
reasonable.
ARTICLE VII
GENERAL PROVISIONS
------------------
7.1 Survival; Recourse. None of the agreements contained in this
------------------
Agreement shall survive the Closing, except that (i) the obligations to
indemnify contained in Article VI hereof shall survive indefinitely (except to
the extent a shorter period of time is explicitly specified therein) and (ii)
the representations and warranties made in Articles II and III of this Agreement
shall survive the Closing for a period of six months, and shall survive any
independent investigation by the parties, and any dissolution, merger or
consolidation of Seller or Buyer, and shall bind the legal representatives,
assigns and successors of Seller, the Webbed Feet Members and Buyer.
7.2 Notices. All notices or other communications under this Agreement
-------
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by personal delivery, by telecopy (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Seller: Webbed Feet, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, President
14
With copies to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A Professional Corporation
One Buckhead Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: 404/233-5824
If to the Webbed
Feet Members: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Buyer: iXL, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: 404/350-9823
With copies to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A Professional Corporation
One Buckhead Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: 404/233-5824
and to: ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq.
Telecopy: 212/223-2379
If to IXL: IXL Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: 404/350-9823
15
With copies to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A Professional Corporation
One Buckhead Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: 404/233-5824
and to: ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq.
Telecopy: 212/223-2379
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
7.3 Entire Agreement. This Agreement and the documents, schedules and
----------------
instruments referred to herein and to be delivered pursuant hereto constitute
the entire agreement between the parties pertaining to the subject matter
hereof, and supersede all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof. There are no other representations or warranties, whether
written or oral, between the parties in connection the subject matter hereof,
except as expressly set forth herein.
7.4 Assignments; Parties in Interest. Neither this Agreement nor any of
--------------------------------
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that the rights, interests and
obligations of Buyer hereunder may be assigned to any wholly owned subsidiary of
Buyer without such prior consent. Subject to the preceding sentence, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any Person not a party hereto any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement, except as otherwise
provided herein.
7.5 Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the State of Georgia (without giving effect to the provisions
thereof relating to conflicts of law).
7.6 Headings. The descriptive headings herein are inserted for
--------
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
7.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute a single agreement.
16
7.8 Severability. If any term or other provision of this Agreement is
------------
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision
hereof is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
- SIGNATURES ON THE FOLLOWING PAGE -
17
IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be signed
by their respective officers thereunder duly authorized, and Webbed Feet Members
have signed this Agreement, all as of the date first written above.
"SELLER"
WEBBED FEET, LLC, a Georgia limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Executive Vice President
--------------------------------------------
"BUYER"
iXL, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Executive Vice President
--------------------------------------------
"IXL"
IXL HOLDINGS, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: Executive Vice President
-----------------------------------------
"WEBBED FEET MEMBERS"
/s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
--------------------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18
EXHIBITS
--------
▇▇▇▇ of Sale.................................................... Exhibit A
Agreement to be Bound to Registration Rights Agreement.......... Exhibit B
Agreement to be Bound to Stockholders' Agreement................ Exhibit C
Seller's Closing Certificate.................................... Exhibit D
Buyer's Closing Certificate..................................... Exhibit E
SCHEDULE 1.1
------------
PURCHASED ASSETS
SCHEDULE 1.4
------------
ASSUMED LIABILITIES
SCHEDULE 2.1
------------
ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT OF SELLER
SCHEDULE 2.4
------------
FINANCIAL STATEMENTS OF SELLER
SCHEDULE 2.5
------------
EXCEPTIONS TO ABSENCE OF CHANGES
SCHEDULE 2.8
------------
EXCEPTIONS TO TITLE TO PROPERTIES
SCHEDULE 2.11
-------------
CONTRACTS
SCHEDULE 2.22
-------------
INSURANCE
SCHEDULE 3.4
------------
BUYER LITIGATION
SCHEDULE 3.5
------------
BUYER BROKERS
SCHEDULE 3.6(A) & (B)
---------------------
OBLIGATIONS TO ISSUE STOCK, OPTIONS, OR WARRANTS OF IXL
SCHEDULE 5.1(B)
---------------
REQUIRED CONSENTS OF SELLER AND THE WEBBED FEET MEMBERS
SCHEDULE 5.2(B)
---------------
BUYER CONSENTS
