Exhibit 4.13
INTERNET COMMERCE CORPORATION
RESTRICTED STOCK PLAN
ARTICLE I - GENERAL PROVISIONS
1.1 The Plan is designed, for the benefit of the Employer, to attract and
retain personnel of exceptional ability; to reward such personnel; to
motivate such personnel through added incentives to make a maximum
contribution to greater profitability; to develop and maintain a highly
competent management team; and to be competitive with other companies with
respect to equity compensation.
1.2 The Plan shall be effective __________ __, 2000 (the "Effective Date").
ARTICLE II - DEFINITIONS
Except where the context otherwise indicates, the following definitions apply:
2.1 "Affiliate" means any entity in which the Company owns more than fifty
percent (50%) of the total outstanding equity securities or total voting
power.
2.2 "Agreement" means the written agreement evidencing each Award granted to a
Participant under the Plan.
2.3 "Award" means an award of Restricted Stock granted to a Participant.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended. All citations to sections of the Code are to such
sections as they may from time to time be amended or renumbered.
2.6 "Company"' means Internet Commerce Corporation, a Delaware corporation,
and its successors and assigns.
2.7 "Disability" means (i) with respect to a Participant who is eligible to
participate in the program of long-term disability insurance maintained by
the Company or any Affiliate that retains the services of the Participant,
if any, a condition with respect to which the Participant is entitled to
commence benefits under such program , and (ii) with respect to any
Participant (including a Participant who is eligible to participate in
such a program of long-term disability insurance), a disability as
determined under procedures established by the Company or in any Award.
2.8 "Eligible Participant" means an employee of the Company.
2.9 "Exchange Act" means the Securities Exchange Act of 1934, as now in effect
or as hereafter amended. All citations to sections of the Exchange Act or
rules thereunder are to such sections or rules as they may from time to
time be amended or renumbered.
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2.10 "Participant" means on Eligible Participant to whom an Award has been
granted and who has entered into an Agreement evidencing the Award.
2.11 "Plan" means the Internet Commerce Corporation Restricted Stock Plan, as
amended from time to time.
2.12 "Public Offering" means any underwritten public offering by the Company or
its shareholders of its equity securities pursuant to an effective
registration statement filed under the Securities Act of 1933.
2.13 "Restricted Stock" means an Award of Stock under Article IV of the Plan.
2.14 "Restriction Period" means the period commencing on the date an Award of
Restricted Stock is granted and ending on such date as the Company shall
determine.
2.15 "Stock" means shares of Class A Common Stock, $.01 par value per share, of
the Company, as may be adjusted pursuant to the provisions of Section 3.8.
2.16 "Termination of Employment" means, with respect to a Participant, the
termination of the Participant's employment with the Company or any
Affiliate. A Termination of Employment shall not be deemed to have
occurred if the Participant transfers employment among any of the Company
and the Affiliates (if any), so long as there is no interruption in the
Participant's employment. The determination of whether a Participant has
incurred a Termination of Employment shall be made by the Company in its
discretion. A Participant shall not be deemed to have incurred a
Termination of Employment if the Participant is on military leave, sick
leave, or other bona fide leave of absence approved by the Company or the
Affiliate which employs the Participant at the time such leave commences
of 90 days or fewer (or any longer period during which the Participant is
guaranteed reemployment by statute or contract.) In the event a
Participant's leave of absence exceeds this period, he will be deemed to
have incurred a Termination of Employment on the day following the
expiration date of such period.
ARTICLE III - ADMINISTRATION
3.1 This Plan shall be administered by the Company as specified herein. The
Company, in its discretion, may delegate to one or more individuals such
of its powers as it deems appropriate. The Company also may limit the
power of any delegatee to the extent necessary to comply with rule 16b-3
under the Exchange Act, Code section 162(m) or any other law or for any
other purpose.
3.2 Except as expressly provided otherwise herein, the Company shall have the
exclusive right to interpret, construe and administer the Plan, to select
the persons who are eligible to receive Awards, and to act in all matters
pertaining to the granting of Awards and the contents of the Agreements
evidencing the Awards, including without limitation, the determination of
the number of shares of Stock subject to an Award and the form, terms,
conditions and duration of an Award, and any amendment thereof consistent
with the provisions of the Plan. All acts, determinations and decisions of
the Company made or taken pursuant to grants of authority under the Plan
or with respect to any questions
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arising in connection with the administration and interpretation of the
Plan, including the severability of any and all of the provisions thereof,
shall be conclusive, final and binding upon all Participants, Eligible
Participants and their estates and beneficiaries.
3.3 The Company may adopt such rules, regulations and procedures of general
application for the administration of this Plan, as it deems appropriate.
3.4 Subject to adjustment as provided in Section 3.8, the aggregate number of
shares of Stock which are available for issuance pursuant to Awards
granted under the Plan shall be one hundred seventy-two thousand, nine
hundred and seven (172,907) shares of Stock. Such shares shall be shares
of common stock of the Company on the effective date of the Plan. If, for
any reason, any shares of Stock awarded or subject to purchase under the
Plan are not delivered or purchased, or are reacquired by the Company, for
reasons including, but not limited to, a forfeiture of Restricted Stock,
such shares of Stock shall not be charged against the aggregate number of
shares of Stock available for issuance pursuant to Awards granted under
the Plan and shall again be available for issuance pursuant to Awards
granted under the Plan.
3.5 Each Award granted under the Plan shall be evidenced by a written
Agreement. Each Agreement shall be subject to and incorporate, by
reference or otherwise, the applicable terms and conditions of the Plan,
and any other terms and conditions, not inconsistent with the Plan, as may
be imposed by the Company.
3.6 The Company shall not be required to issue or deliver any certificates for
shares of Stock prior to:
(a) the listing of such shares on any stock exchange or national
quotation system on which the Stock may then be listed; and
(b) the completion of any registration or qualification of such shares
of Stock under any federal or state law, or any ruling or regulation
of any government body which the Company shall, in its discretion,
determine to be necessary or advisable.
3.7 All certificates for shares of Stock delivered under the Plan shall also
be subject to such stop-transfer orders and other restrictions as the
Company may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange
or national quotation system upon which the Stock is then listed and any
applicable federal or state laws, and the Company may cause a legend or
legends to be placed on any such certificates to make appropriate
reference to such restrictions. In making such determination, the Company
may rely upon an opinion of counsel for the Company.
3.8 If any reorganization, recapitalization, reclassification, stock split,
stock dividend, or consolidation of shares of Stock, merger or
consolidation or separation, including a spin-off, of the Company or sale
or other disposition by the Company of all or a portion of its assets, any
other change in the Company's corporate structure, or any distribution to
shareholders other than a cash dividend results in the outstanding shares
of Stock, or any securities exchanged therefor or received in their place,
being exchanged for a different
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number or class of shares of Stock or other securities of the Company, or
for shares of Stock or other securities of any other corporation; or new,
different or additional shares or other securities of the Company or of
any other corporation being received by the holders of outstanding shares
of Stock, then the Company shall make equitable adjustments in:
(a) the limitation on the aggregate number of shares of Stock that may
be awarded as set forth in Section 3.4 of the Plan;
(b) the number of shares and class of Stock that may be subject to an
Award, and which have not been issued or transferred under an
outstanding Award;
(c) the terms, conditions or restrictions of any Award and Agreement,
including the price payable for the acquisition of Stock.
3.9 The Company may require each person purchasing shares of Stock pursuant to
an Award under the Plan to represent to and agree with the Company in
writing that he is acquiring the shares of Stock without a view to
distribution thereof and/or that he has met such other requirements as the
Company determines may be applicable to such purchase. The certificates
for such shares of Stock may include any legend which the Company deems
appropriate to reflect any restrictions on transfer.
3.10 The Company shall be authorized to make adjustments in performance based
criteria or in the other terms and conditions of Awards in recognition of
unusual or nonrecurring events affecting the Company or its financial
statements or changes in applicable laws, regulations or accounting
principles. The Company may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Agreement in the manner and
to the extent it shall deem desirable to carry it into effect.
3.11 All outstanding Awards to any Participant may be canceled if:
(a) the Participant, without the consent of the Company, while employed
by the Company or any Affiliate or after termination of such
employment, becomes associated with, employed by, renders services
to, or owns any interest in, other than any insubstantial interest,
as determined by the Company, any business that is in competition
with the Company or any Affiliate or with any business in which the
Company or any Affiliate has a substantial interest or that has a
substantial interest in the Company or any Affiliate, as determined
by the Company; or
(b) the Participant is terminated for cause as determined by the
Company.
3.12 In connection with any Public Offering, a Participant shall not sell, make
any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or otherwise agree
to engage in any of the foregoing transactions with respect to, any Stock
acquired under the Plan without the prior written consent of the Company
or its underwriters. Such restriction (the "Market Stand-Off") shall be in
effect for such period of time from and after the effective date of the
final prospectus for the Public Offering as may be requested by the
Company or such underwriters. In no event,
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however, shall such period exceed the period for which securities owned by
the Chief Executive Officer of the Company are subject to the same
restrictions. Any new, substituted or additional securities that are by
reason of any recapitalization or reorganization distributed with respect
to Stock acquired under the Plan shall be immediately subject to the
Market Stand-Off, to the same extent the Stock acquired under the Plan is
at such time covered by such provisions. In order to enforce the Market
Stand-Off, the Company may impose stop-transfer restrictions with respect
to the Stock acquired under the Plan until the end of the applicable
stand-off period.
ARTICLE IV - RESTRICTED STOCK
4.1 Restricted Stock Awards may be made to Participants as rewards for past
performance and/or as incentives for the performance of future services
that will contribute materially to the successful operation of the
Company.
4.2 With respect to Awards of Restricted Stock, the Company shall:
(a) determine the purchase price, if any, to be paid for such Restricted
Stock, which may be more than, equal to or less than par value and
may be zero, subject to such minimum consideration as may be
required by applicable law;
(b) determine the length of the Restriction Period;
(c) determine the restrictions applicable to the Restricted Stock such
as service or performance;
(d) determine if the restrictions shall lapse as to all shares of
Restricted Stock at the end of the Restriction Period or as to a
portion of the shares of Restricted Stock in installments during the
Restriction Period; and
(e) determine if dividends and other distributions on the Restricted
Stock are to be paid currently to the Participant or paid to the
Company for the account of the Participant.
4.3 An Award of Restricted Stock must be accepted by the Participant, within
such period as the Company may specify, by executing a Restricted Stock
Agreement and paying whatever price, if any, is required. The prospective
recipient of a Restricted Stock Award shall not have any rights with
respect to such Award unless and until such recipient has executed a
Restricted Stock Agreement, has delivered a fully executed copy thereof to
the Company (as shall be determined by the Company), and has otherwise
complied with the applicable terms and conditions of such Award.
4.4 In the event of special circumstances of a Participant whose employment
with the Company or any Affiliate is involuntarily terminated, the Company
may in its discretion elect to waive in whole or in part any or all
remaining restrictions with respect to any or all of the Participant's
Restricted Stock, based on such factors and criteria as the Company may
deem appropriate.
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4.5 Upon an Award of Restricted Stock to a Participant, the Company shall
register one or more stock certificates representing the shares of
Restricted Stock in the Participant's name. Such certificates shall be
held in custody by the Company until the Restriction Period expires or
until restrictions thereon otherwise lapse, and the Participant shall
deliver to the Company one or more stock powers endorsed in blank relating
to the Restricted Stock.
4.6 Except as provided in this Article IV or in the applicable Restricted
Stock Agreement, a Participant receiving a Restricted Stock Award shall
have, with respect to such Restricted Stock Award, all of the rights of a
shareholder of the Company, including the right to vote the shares to the
extent, if any, such shares possess voting rights and the right to receive
any dividends; provided, however, that the Company may provide that
dividends and other distributions on Restricted Stock shall be paid to the
Company for the account of the Participant pending lapse of the
Restriction Period with respect to such Restricted Stock.
4.7 If and when the Restriction Period expires without a prior forfeiture of
the Restricted Stock subject to such Restriction Period, unrestricted
certificates for such shares shall be delivered to the Participant;
provided, however, that the Company may cause such legend or legends to be
placed on any such certificates as it may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange
Commission and any applicable federal or state law.
ARTICLE V - AMENDMENT AND TERMINATION
5.1 The Company, at any time and from time to time, may amend or terminate the
Plan.
5.2 No amendment to or discontinuance of this Plan or any provision thereof by
the Company shall, without the written consent of the Participant,
adversely affect, as shall be determined by the Company, any Award
previously granted to such Participant under this Plan.
5.3 Notwithstanding anything herein to the contrary, if the right to receive
or benefit from any Award, either alone or together with payments that a
Participant has the right to receive from the Company or any Affiliate,
would constitute a "parachute payment" under Code section 280G, all such
payments may be reduced, in the discretion of the Company, to the largest
amount that will avoid an excise tax to the Participant under Code section
4999.
ARTICLE VI - MISCELLANEOUS PROVISIONS
6.1 Nothing in the Plan or any Award granted under the Plan shall confer upon
any Participant any right to continue in the employ of the Company or any
Affiliate, or interfere in any way with the right of the Company or any
Affiliate to terminate his or her employment or relationship at any time.
Unless otherwise agreed to by the Board, no Award granted under the Plan
shall be deemed salary or compensation for the purpose of computing
benefits under any employee benefit plan or other arrangement of the
Company or any Affiliate for the benefit of its employees unless the
Company or such
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Affiliate shall determine otherwise. No Participant shall have any claim
to an Award until it is actually granted under the Plan. To the extent
that any person acquires a right to receive payments under the Plan, such
right shall be no greater than the right of an unsecured general creditor
of the Company.
6.2 The Company and/or any Affiliate may make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of any
taxes which the Company or Affiliate is required by any law or regulation
of any governmental authority, whether federal, state or local, domestic
or foreign, to withhold in connection with any Award or the exercise
thereof, including, but not limited to, withholding the payment of all or
any portion of such Award or another Award under this Plan until the
Participant reimburses the Company or Affiliate for the amount such entity
is required to withhold with respect to such taxes, or canceling any
portion of such Award or another Award under this Plan in an amount
sufficient to reimburse itself for the amount it is required to so
withhold, or selling any property contingently credited by the Company or
Affiliate for the purpose of paying such Award or another Award under this
Plan, in order to withhold or reimburse itself for the amount it is
required to so withhold. The amount withheld shall not exceed the
statutory minimum federal and state income and employment tax liability
arising from the exercise transaction.
6.3 The Plan and the grant of Awards shall be subject to all applicable
federal and state laws, rules, and regulations and to such approvals by
any United States government or regulatory agency as may be required.
6.4 The terms of the Plan shall be binding upon the Company and its successors
and assigns.
6.5 Each Participant agrees to give the Company prompt written notice of any
election made by such Participant under Code section 83(b) or any similar
provision thereof.
6.6 If any provision of this Plan or an Agreement is or becomes or is deemed
invalid, illegal or unenforceable in any jurisdiction, or would disqualify
the Plan or any Agreement under any law deemed applicable by the Company,
such provision shall be construed or deemed amended to conform to
applicable laws or if it cannot be construed or deemed amended without, in
the determination of the Company, materially altering the intent of the
Plan or the Agreement, it shall be stricken and the remainder of the Plan
or the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, this document is executed effective as of the date
specified above.
INTERNET COMMERCE CORPORATION
ATTEST:
By:
______________________________ ---------------------------------------
Assistant Secretary
(Corporate Seal)
