Exhibit 99.3
iXL VOTING AGREEMENT
This iXL VOTING AGREEMENT (this "Agreement"), entered into on this
31st day of July, 2001, by and among SCIENT CORPORATION, a Delaware corporation
("Scient"), and the stockholders of IXL ENTERPRISES, INC., a Delaware
corporation ("iXL"), that are parties hereto (each, a "Stockholder" and,
collectively, the "Stockholders"). Defined terms not defined herein shall have
the meaning ascribed to such terms in the Merger Agreement (as defined below).
WITNESSETH:
1. WHEREAS, Scient and iXL, concurrently with the execution and
delivery of this Agreement, are entering into that certain Agreement and Plan
of Merger, of even date herewith (the "Merger Agreement"), pursuant to which,
on the terms and subject to the conditions set forth therein, Scient will
engage in a business combination in a merger of equals with iXL (the "iXL
Merger");
2. WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of iXL Common Stock set forth on the signature page hereof
beneath such Stockholder's name (with respect to each Stockholder, such
Stockholder's " Existing Shares" and, together with any shares of iXL Common
Stock or other voting capital stock of iXL, the beneficial ownership of which
is acquired by such Stockholders after the date hereof, whether upon the
exercise of warrants, options, conversion of convertible securities or
otherwise, such Stockholder's "Shares"); and
3. WHEREAS, the Stockholders agree to vote all of their respective
Shares in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the execution of the Merger
Agreement by the parties thereto and the respective representations,
warranties, covenants and agreements set forth in this Agreement, and intending
to be legally bound hereby and thereby, the parties hereto agree as follows:
ARTICLE 1. VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees, severally and not
jointly, that it shall, and shall cause the holder of record on any applicable
record date to, from time to time, at the iXL Stockholders Meeting and any
other meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of iXL, however called, or in connection
with any written consent of the holders of iXL Common Stock, (a) if a meeting
is held, appear at such meeting or otherwise cause its Shares to be counted as
present thereat for purposes of establishing a quorum, and (b) vote or consent
(or cause to be voted or consented), in person or by proxy, all of its Shares
in favor of the approval and adoption of the Merger Agreement, the iXL Merger
and any action required in furtherance thereof and for any of the transactions
contemplated by the Merger Agreement.
1.2 No Ownership Interest. Nothing contained in this Agreement shall be deemed
to vest in Scient any direct or indirect ownership or incidence of ownership of
or with respect to any Shares. All rights, ownership and economic benefits of
and relating to the Shares shall remain vested in and belong to the
Stockholders, and Scient shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of iXL or exercise any power or authority to
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direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or in the performance of the Stockholder's duties or
responsibilities as stockholders of iXL.
1.3 No Inconsistent Agreements. Each Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
the Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with such
Stockholder' s obligations pursuant to this Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Scient as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such Stockholder
has full power and authority to execute and deliver this Agreement, to perform
such Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by such Stockholder
and no other actions or proceedings on the part of such Stockholder are
necessary to authorize the execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by such Stockholder, and, assuming this
Agreement constitutes a valid and binding obligation of Scient, constitutes a
valid and binding obligation of such Stockholder, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and similar laws relating to or affecting
creditors generally or by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law). If such
Stockholder is married and any of such Stockholder's Shares constitute
community property under applicable laws, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid and binding
agreement of, such Stockholder's spouse. If this Agreement is being executed in
a representative or fiduciary capacity, the individual or entity signing this
Agreement has the full power and authority to enter into and perform this
Agreement.
2.2 Non-Contravention. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not result in any breach or violation of or
be in conflict with or constitute a default under any term of (i) any
agreement, judgment, injunction, order, decree, law regulation or arrangement
to which such Stockholder is a party or by which such Stockholder (or any of
its assets) is bound, except for any such breach, violation, conflict or
default which, individually or in the aggregate, would not impair or affect
such Stockholder's ability to cast all votes necessary to approve and adopt the
Merger Agreement and the transactions contemplated by the Merger Agreement or
(ii) if such Stockholder is an entity, its certificate of incorporation or
bylaws.
2.3 Shares. Such Stockholder's Existing Shares are, and all of its Shares from
the date hereof through and on the Closing Date will be, owned beneficially by
such Stockholder. As of the date
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hereof, such Stockholder's Existing Shares constitute all of the shares of iXL
Common Stock owned of record or beneficially by such Stockholder. Such
Stockholder has or will have the voting power, power of disposition, power to
issue instructions with respect to the matters set forth in Article I hereof,
and power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of such Stockholder's Existing Shares and with respect
to all of such Stockholder's Shares on the Closing Date, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
2.4 Finder's Fee. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from iXL or Scient in respect of this Agreement
based upon any arrangement or agreement made by or on behalf of such
Stockholder.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF INDIA
Scient represents and warrants to each Stockholder as follows:
3.1 Corporate Authorization. The execution, delivery and performance by Scient
of the transactions contemplated hereby are within the corporate powers of
Scient and have been duly authorized by all necessary corporate action.
3.2 Binding Obligation. This Agreement has been duly executed and delivered by
Scient, and, assuming this Agreement constitutes a valid and binding obligation
of each Stockholder, constitutes a valid and binding obligation of Scient,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium and similar
laws relating to or affecting creditors generally or by general equity
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
ARTICLE 4. OTHER COVENANTS
4.1 Further Agreements.
(a) Each Stockholder, severally and not jointly, hereby agrees, while
this Agreement is in effect, not to sell, transfer, pledge, encumber,
assign or otherwise dispose of or enforce or permit the execution of
the provisions of any redemption, share purchase or sale,
recapitalization or other agreement with iXL or enter into any
contract, option or other arrangement or understanding with respect
to the offer for sale, sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Existing Shares, any
Shares acquired after the date hereof, any securities exercisable for
or convertible into iXL Common Stock, any other capital stock of iXL
or any interest in any of the foregoing with any Person.
(b) In the event of a stock dividend or distribution, or any change in
iXL Common Stock by reason of any stock dividend or distribution, or
any change in iXL Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term " Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
securities into which or for which any or all of the Shares may be
changed or exchanged or which are received in such transaction.
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(c) Each Stockholder covenants and agrees with the other Stockholders and
for the benefit of iXL (which shall be a third party beneficiary of
this Section 4.1(c)) to comply with and perform all its obligations
under this Agreement. Notwithstanding any provision in this Agreement
to the contrary, it is understood and agreed that all
representations, warranties, covenants and agreements made by a
Stockholder pursuant to this Agreement are made (i) on a several, not
joint, basis and (ii) only as to such Stockholder.
ARTICLE 5. GENERAL PROVISIONS
5.1 Termination. This Agreement shall terminate and no party shall have any
rights or duties hereunder upon the earlier of (a) the Effective Time or (b)
termination of the Merger Agreement pursuant to Section 8.1 thereof. Nothing in
this Section 5.1 shall relieve or otherwise limit any party of liability for
breach of this Agreement.
5.2 Notices. All notices and other communications hereunder shall be in writing
and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on
the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth Business Day following
the date of mailing if delivered by registered or certified mail, return
receipt requested, postage prepaid. All notices hereunder shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
if to Scient to:
Scient Corporation
405 Lexington Avenue
10th Floor
New York, NY 10174
Fax: (646) 487-8700
Attention: President
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Tel: (212) 450-4000
Fax: (212) 450-3800
email: david.caplan@dpw.com
Attention: David L. Caplan, Esq.
If to the Stockholders party hereto:
to the address set forth next to the name of such
Stockholders on the signature pages hereof
with a copy to:
Greenberg Traurig, LLP
3290 Northside Parkway, N.W.
Suite 400
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Atlanta, GA 30327
Phone: (678) 553-2444
Fax: (678) 553-2445
e-mail: altenbachj@gtlaw.com
Attention: James S. Altenbach, Esq.
5.3 Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that both parties need
not sign the same counterpart. Signatures transmitted by facsimile or other
comparable means shall be deemed an original.
5.4 Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware (without giving effect to choice of law
principles thereof).
5.5 Enforcement. The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity
5.6 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision 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 in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
5.7 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior
written consent of (i) Scient, in the case of an assignment by any Stockholder,
and (ii) those Stockholders holding more than 50% of the iXL Common Stock held
by all Stockholders, in the case of an assignment by Scient, and any attempt to
make any such assignment without such consent shall be null and void. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors
and assigns (including, in the case of an individual, any executors,
administrators, estates or legal representatives of such individual).
5.8 Submission to Jurisdiction; Waivers. Each of the parties to this Agreement
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by any other party hereto or its successors or assigns shall be brought
and determined in the Chancery or other Courts of the State of Delaware, and
each party hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid courts with
respect to any such matter. Each party hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, counterclaim or otherwise, in
any action or proceeding with respect to
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this Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise), (c) to the fullest extent permitted by applicable law, that (i) the
suit, action or proceeding in any such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper, and (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts, and (d) any right to a trial by jury.
5.9 Expenses. All costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
5.10 Amendments. This Agreement may not be modified or amended, except upon the
execution and delivery of a written agreement executed by the parties hereto.
5.11 Certain Definitions. For purposes of this Agreement, (i) the term
"beneficial ownership" (or any similar term) shall have the meaning set forth
in Rule 13d-3 under the Securities Exchange Act of 1934, and (ii) the term
"Merger Agreement" shall include the Merger Agreement as amended from time to
time (but only to the extent any such amendment does not materially adversely
affect the rights and interests of the Stockholders).
5.12 Action in Stockholder Capacity Only. Each representation, warranty,
covenant and agreement made by a Stockholder hereunder is made in such
Stockholder's capacity as a stockholder only, not as an officer or director of
iXL. Nothing herein shall limit or affect any Stockholder's ability to take any
action in his or her capacity as an officer or director of iXL.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its respective officers thereunto duly authorized,
all as of the date first written above.
Scient:
Scient Corporation
By: /s/ Robert M. Howe
-----------------------
Name: Robert M. Howe
Title: Chairman and Chief
Executive Officer
Stockholders:
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Address Stockholder
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320 Park Avenue, 24th Floor Kelso Investment Associates V, L.P.
New York, NY 10002
Tel: (212) 751-3939 By: Kelso Partners V, L.P.
Fax: (212) 223-2379
Attention: James J. Connors II, Esq. By: /s/ Frank K. Bynum, Jr.
-----------------------
Name: Frank K. Bynum, Jr.
Title: General Partner
Number of shares of
iXL Common Stock: 14,673,227
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320 Park Avenue, 24th Floor Kelso Equity Partners V, L.P.
New York, NY 10002
Tel: (212) 751-3939 By: /s/ Frank K. Bynum, Jr.
Fax: (212) 223-2379 -----------------------
Attention: James J. Connors II, Esq. Name: Frank K. Bynum, Jr.
Title: General Partner
Number of shares of
iXL Common Stock: 1,182,869
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901 East Gary Street__________________ THE RIVERSTONE GROUP, LLC
Suite 1550 _________________________
Richmond, VA 23219________________ By: /s/ Beverley W. Armstrong
-------------------------
Tel: (804) 643-4200______________ Name: Beverley W. Armstrong
Fax: (804) 643-4203______________ Title: Manager
Attention: Beverly W. Armstrong
-----------------------
Number of shares of
iXL Common Stock: 12,000,000
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___________________________ JP MORGAN PARTNERS
___________________________
___________________________ By: /s/ Jeffrey C. Walker
---------------------
Tel: ______________ Name: Jeffrey C. Walker
Fax: ______________
Attention:________________ Title:
Number of shares of
iXL Common Stock: 7,939,427
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