Exhibit 4.13
RESEARCH TRIANGLE COMMERCE, INC.
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 August 10, 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 or the Employer 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 granted to a Participant of Restricted Stock.
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, prior to the Merger, the Employer, and on and after the
Merger, Internet Commerce Corporation, a Delaware corporation, and their
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, the Employer 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 Sponsor or in
any Award.
2.8 "Eligible Participant" means an employee of the Employer, as shall be
determined by the Sponsor.
2.9 "Employer" means Research Triangle Commerce, Inc., a North Carolina
corporation.
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2.10 "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.
2.11 "Merger" means the merger of the Employer with and into ICC Acquisition
Corporation, Inc., a North Carolina corporation.
2.12 "Participant" means an Eligible Participant to whom an Award has been
granted and who has entered into an Agreement evidencing the Award.
2.13 "Plan" means the Research Triangle Commerce, Inc. Restricted Stock
Plan, as amended from time to time.
2.14 "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.
2.15 "Restricted Stock" means an Award of Stock under Article IV of the Plan.
2.16 "Restriction Period" means the period commencing on the date an Award of
Restricted Stock is granted and ending on such date as the Sponsor shall
determine.
2.17 "Sponsor" means Jeffrey W. LeRose, and his successors or assigns, who
shall administer this Plan pursuant to Article III.
2.18 "Stock" means shares of Common Stock, no par value per share, of the
Company, as may be adjusted pursuant to the provisions of Section 3.8.
2.19 "Termination of Employment" means, with respect to a Participant, the
termination of the Participant's employment with the Employer, 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
Employer, 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 Sponsor in his 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
Employer, 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 generally by the Sponsor and, to a limited
extent, by the Company as specified herein. The Sponsor and/or the
Company, in their discretion, may delegate to one or more individuals such
of their powers as they deem appropriate. The Sponsor and/or the Company
also may limit the power of any delegatee to the extent
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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 Sponsor 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 Sponsor or the Company made or taken pursuant to grants of authority
under the Plan or with respect to any questions 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 Sponsor may adopt such rules, regulations and procedures of general
application for the administration of this Plan, as he 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 Eight Hundred Twenty-Five Thousand
(825,000) shares of Stock owned by the Sponsor. Such shares shall be
shares of common stock of the Employer on the effective date of the Plan.
Upon the "Effective Time" of the Merger (as defined in the Agreement and
Plan of Merger dated June 14, 2000, among the Employer, Internet Commerce
Corporation, and ICC Acquisition Corporation, Inc. (the "Merger
Agreement")), such shares shall be converted into shares of common stock
of Internet Commerce Corporation in the manner set forth in section
2.12(b) of the Merger Agreement, all references herein to such shares
shall thereafter be deemed references to such shares of common stock of
Internet Commerce Corporation, and Internet Commerce Corporation shall
assume all responsibilities of the Employer under this 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 Sponsor, 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 Sponsor.
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
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(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 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
Sponsor 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 Sponsor shall be indemnified by the Company against reasonable
expenses, including attorney's fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which he may be a party by reason
of any action taken or failure to act under or in connection with the Plan
or any Award granted thereunder, and against all amounts paid by him in
settlement thereof, provided such settlement is approved by independent
legal counsel selected by the Company, or paid by them in satisfaction of
a judgment or settlement in any such action, suit or proceeding, except as
to matters as to which the Sponsor has been negligent or engaged in
misconduct in the performance of his duties; provided, that within 60 days
after institution of any such action, suit or proceeding, the Sponsor
shall in writing offer the Company the opportunity, at its own expense, to
handle and defend the same.
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3.10 The Sponsor and/or the Company may require each person purchasing shares
of Stock pursuant to an Award under the Plan to represent to and agree
with the Sponsor and/or 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 Sponsor and/or the Company determines
may be applicable to such purchase. The certificates for such shares of
Stock may include any legend which the Sponsor and/or the Company deems
appropriate to reflect any restrictions on transfer.
3.11 The Sponsor 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 Sponsor may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Agreement in the manner and
to the extent he shall deem desirable to carry it into effect.
3.12 All outstanding Awards to any Participant may be canceled if:
(a) the Participant, without the consent of the Sponsor, while
employed by the Employer, 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 Sponsor, any
business that is in competition with the Employer, the Company or
any Affiliate or with any business in which the Employer, the
Company or any Affiliate has a substantial interest or that has a
substantial interest in the Employer, the Company or any
Affiliate, as determined by the Sponsor; or
(b) the Participant is terminated for cause as determined by the
Sponsor.
3.13 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, 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.
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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 Sponsor 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
Sponsor or 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 Sponsor 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 Sponsor or the Company (as shall be determined by the Sponsor), 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 Employer, the Company or any Affiliate is involuntarily
terminated, the Sponsor may in his 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 Sponsor may deem appropriate.
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
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vote the shares to the extent, if any, such shares possess voting rights
and the right to receive any dividends; provided, however, that the
Sponsor may provide that dividends and other distributions on Restricted
Stock shall be paid to the Sponsor or 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 Sponsor or the Company may cause such legend
or legends to be placed on any such certificates as he or 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 Sponsor, 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 Sponsor shall, without the written consent of the Participant,
adversely affect, as shall be determined by the Sponsor, 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 Employer, 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 Sponsor, 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 Employer, the
Company or any Affiliate, or interfere in any way with the right of the
Employer, 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 Employer, the Company or any Affiliate for the benefit
of its employees unless the Employer, the Company or such 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 Sponsor
or the Company.
6.2 The Employer, 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 Employer, 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,
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withholding the payment of all or any portion of such Award or another
Award under this Plan until the Participant reimburses the Employer, 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 Employer, 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 Sponsor, the Employer, the
Company, and their 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 Sponsor,
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 Sponsor, 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.
IN WITNESS WHEREOF, this document is executed effective as of the date
specified above.
SPONSOR:
____________________________(SEAL)
Jeffrey W. LeRose
RESEARCH TRIANGLE COMMERCE, INC.
ATTEST:
___________________________ By:________________________________
Assistant Secretary
(Corporate Seal)
