Exhibit I
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Master Agreement
Between
Cable and Wireless PLC and Internet Commerce Corporation
The Parties, Cable and Wireless PLC (C&W) and Internet Commerce Corporation
(ICC), have determined that there exists substantial synergies between both
organizations to expand their respective market efforts for Internet-based
services. As such, the Parties have agreed to this Master Agreement as the basis
for a resulting commercial relationship. This Master Agreement is subject to
both Parties obtaining their respective Management or Supervisory Board
approval, and, if relevant, regulatory approvals. Notwithstanding delays due to
public holidays, the Parties respective Board approvals will be obtained within
30 days after the execution of this Master Agreement. Other than those terms
explicitly outlined herein, no representations or warranties are expressed or
implied. All co-signed Addendums shall be agreed upon within 30 days of the
execution of this Agreement and will be deemed integral to this Master
Agreement.
1) STOCK PURCHASE AND RELATED TRANSACTIONS
a) C&W shall invest US ten million ($10,000,000.00) dollars in ICC. For
good and valuable consideration of this investment, ICC shall issue to
C&W 10,000 Shares of Series C Convertible Preferred Stock in ICC. The
closing of the transaction will occur within 10 days after receiving
Board approvals.
b) The Series C Preferred Stock issued to C&W by ICC shall be convertible
into Class A Common Stock. Each share of Series C Preferred Stock is
convertible into a number of shares of Class A Common Stock determined
by the following formula: $1,000.00 divided by the daily average of the
closing bid price of ICC Common Stock for the five (5) trading days
prior to the execution of this Master Agreement plus $0.13 per share
(the "Conversion Price").
The Series C Preferred Stock has a value of $1,000.00. The conversion
price will be adjusted for stock splits, dividends and combinations,
mergers and consolidations.
c) The per share voting rights of the Series C Preferred Stock shall be
equal to that of the number of shares of Class A Common Stock into
which the Series C Preferred Stock is convertible. At all times the
Series C Preferred Stock held by C&W shall vote as one class with ICC
Class A Common Stock. The Series C Preferred Stock shall be entitled to
receive cumulative dividends at a rate equal to 4% per share (as
adjusted for subsequent stock dividends, splits, recapitalizations and
similar transactions). Such dividends shall accrue whether or not
declared and shall be paid in either cash or shares of ICC Class A
Common Stock at ICC's option; provided, that such dividends are paid
prior to and in preference to any distribution with respect to the
shares of Common Stock.
d) The Series C Preferred Stock issued to C&W shall have liquidation
priority and preference over any and all classes and series of ICC
Capital Stock. The liquidation value shall equal $1,000.00 per share
plus accrued and unpaid dividends.
e) At the closing, ICC shall issue 400,000 warrants for ICC Class A
Common. The exercise price for such warrants shall be the Conversion
Price, less $0.13 per share, as may be adjusted (the "Warrant Price"),
and the warrants shall have an initial term of 5 years from the date of
issuance.
f) ICC agrees to issue to C&W additional stock for the attainment of
set quarterly revenue targets for the sales of ICC services. The number
of Shares in connection with this section 1(f) shall be equal to the
result of multiplying the gross amount of sales for ICC services sold
by C&W by 5%. The shares will be priced by the daily average of the
closing bid price of ICC stock for the 5 days prior to the end of each
quarter. The basis for the revenue calculation will be derived from the
commissionable revenue figure to be negotiated in the Reseller
Addendums. Each outstanding share of the Series C Preferred Stock is
redeemable by ICC at a price of $1,000.00 per share, plus any accrued
and unpaid dividends (the "Redemption Price"), commencing on the fifth
anniversary of the date of issuance thereof upon written notice to the
holders of Series C Preferred Stock. No such redemption shall diminish
C&W's right to convert the Series C Preferred Stock prior to the
redemption date.
g) C&W shall have right of first refusal to participate in any ICC equity
offering, on the same terms and conditions as other purchasers, to
maintain its percentage ownership of ICC.
h) In exchange for C&W investment in ICC and for other good and valuable
consideration, ICC shall grant C&W one seat on ICC's Board. ICC's
approval of the C&W candidate will not be unreasonably withheld. In the
event ICC's Board increases to more than nine members, ICC shall grant
C&W an additional seat on ICC's Board. ICC agrees that C&W's Board
representation shall at no time be less than one seat and shall
increase roughly proportionate to C&W's percentage ownership of ICC as
such percentage ownership may increase.
i) At the time of the issuance of the shares provided for in section 1,
the parties will enter into a Registration Rights Agreement providing
demand and piggyback registration rights with respect to all shares of
Preferred and Common Stock issued to C&W pursuant to this Master
Agreement and all shares issued upon the conversion of the Preferred
Stock and the exercise of the Warrants.
j) ICC represents and warrants that the information contained in its
private placement memorandum dated October 1999 is true and correct in
all material respects; that such private placement memorandum does not
contain any untrue statements of material fact or omit to state any
material fact required to make the statements therein not misleading;
and that there has been no material changes in the business,
properties, financial condition or results of operations of ICC. In
addition, ICC represents and warrants that the products described
therein are all currently available for sale. However, statements
included in such private placement memorandum which are not historical
in nature are forward-looking statements made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of
1995 including, without limitation, statements regarding the ability to
obtain financing, the hiring of new personnel, the Company's ability to
secure new business, and those factors highlighted in Internet Commerce
Corporation's Annual Reports on Form 10-K and Quarterly Reports on Form
10-Q, which could cause the Company's actual results to materially
differ from forward-looking statements made by the Company.
2) COMMERCIAL ACTIVITIES
a) The scope of this Agreement is intended to be global in nature and as
such, ICC and C&W shall endeavor to address the global markets
together. Therefore, ICC will utilize C&W IP and data networks and
other services (including hosting) to the greatest extent possible,
consistent with ICC's needs for redundant facilities, at rates no
higher than C&W lowest rates to comparable customers. C&W intention is
to use ICC EDI services on a global basis.
b) The Parties agree that the initial focus shall be on North America,
Western Europe, and Japan, with other C&W market activities to follow
as resources allow.
c) C&W will serve as a sales channel for ICC, and ICC will serve as a
sales channel for C&W, as either a reseller or as an agent and as C&W
and ICC shall mutually agree. ICC, at ICC's sole expense, shall
co-locate dedicated sales and support personnel at mutually determined
C&W facilities as requested by C&W Global Markets and which is
reasonably required to attain the sales goals referred to in section
2(e) herein. C&W shall seek to provide office space and related support
to ICC as may be required for these activities. For the first 12 months
of this Master Agreement, C&W agrees to consider the provision of these
services to be in-kind funding. Thereafter, the cost associated with
office provision and support shall be negotiated country by country.
d) ICC shall compensate C&W for each sale of ICC services made by C&W
sales representatives as will C&W compensate ICC for each sale of C&W
services made by ICC sales representatives. For compensation purposes
only, in the case where the Parties jointly make sales calls, Parties
shall split commissions on a basis to be mutually agreed upon.
e) The Parties shall jointly develop a Global Schedule of Services and
Compensation (GSSC) that shall determine the service offerings, MFN
pricing structures and resulting compensation values. Subject to mutual
prior consent, which consent will not be unreasonably withheld, the
Parties shall be entitled to bundle the other's products with any
product offer either Party may develop. The GSSC shall include bundled
service offerings wherein the Parties will determine the percentage of
revenues attributable to each Party's contribution to the offering in
order to calculate the applicable compensation. The GSSC shall be
incorporated into this Agreement by reference and the Parties shall
agree on any deviation from the terms of the GSSC in advance.
f) ICC shall cooperate with C&W Global Operations to jointly develop and
agree upon a sales and market plan (SMP) for each global region
enumerated above in section 2(b) herein. The SMP shall include
reasonable sales goals, existing customer lead activity, new customer
acquisition targets, co-located ICC support headcount requirements and
other issues that may be required for the Parties to reach their sales
goals during the first year of the Agreement. The SMP shall be reviewed
by the Parties on a quarterly basis and measured against performance.
Modifications mutually agreed upon as a result of such reviews shall be
incorporated into the SMP as appropriate from time to time. The SMP
shall be incorporated into this Agreement by reference and the Parties
shall agree on any deviation from the terms of the SMP in advance.
g) Where additional product development efforts are necessary to launch
and/or support bundled offerings, the Parties will cooperate in
performing such additional efforts in a professional and timely manner.
C&W may at its sole option decline such request and ICC may decline
such request if C&W is not meeting sales targets established and agreed
to in the SMP referenced in section 2(e) above.
3) LENGTH OF TERM
a) The Initial Period of this Master Agreement shall commence upon the
date that both Parties receive the executed Master Agreement and shall
continue for a period of one (1) year. At C&W sole discretion, the
Agreement shall automatically renew on each anniversary thereof for
additional one (1) year Periods. Should C&W wish to terminate this
Master Agreement, a 60 day written notification is required.
b) During all Periods, C&W shall be ICC's exclusive Tier 1 provider for
the regions described in section 2(b) herein. The Parties shall develop
a Tier 1 and Global Competitor List (GCL) that shall name those
competitors identified and agreed by the Parties. ICC agrees that it
will not enter into an agreement with any entity identified and
incorporated into the GCL. The GCL shall be incorporated into this
Agreement by reference and the Parties shall agree any modifications to
the GCL in advance.
c) Following the expiration of the Initial Period, either Party, upon 60
days written notice prior to the expiration of any subsequent Period,
may terminate the Agreement for cause as shall be described in an
Addendum to the Master Agreement. The Parties may at anytime mutually
agree to an earlier termination date. In the event that either party is
notified of a cause for discontinuance, the other party will have 60
days to cure the alleged fault. Should the cure be deemed inadequate,
the 60 day period for termination of service will begin.
d) Notwithstanding any other provision after termination of the Agreement
should C&W desire to continue selling ICC's services, ICC agrees to
provide C&W with MFN terms and conditions for all ICC's services.
4) MISCELLANEOUS
a) The Parties will co-develop relevant MARCOM materials. C&W shall retain
right of advance approval of any and all materials bearing reference to
C&W. As well, ICC shall retain right of advance approval of any and all
materials bearing reference to ICC. The Parties shall bear their
individual costs of the production of their own materials. Should ICC
desire to use C&W MARCOM materials, such materials in reasonable
quantities shall be provided to ICC at C&W cost. Should C&W wish to use
or incorporate any ICC MARCOM materials, it may do so with ICC's
consent, such consent not to be unreasonably denied.
b) The Parties will jointly develop and mutually agree upon a press
announcement pertaining to this Master Agreement. Additionally, it is
agreed that both parties shall jointly prepare a PR Strategy for the
next 30, 60, 90 days of this relationship.
c) C&W will endeavor to provide in-kind support to ICC. The Parties shall
agree on pricing and terms ICC shall be required to pay to C&W before
commencement of such services will begin. A separate purchase agreement
for such services will be executed as appropriate.
d) This Master Agreement shall be governed by the laws and subject to the
jurisdiction of the Commonwealth of Virginia.
Cable and Wireless PLC Internet Commerce Corporation
Date 23 November 1999 Date 23 November 1999
By: /S/ XXXXXXX XXXX By: /S/ XX. XXXXXXXX X. XXXXXXX
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Xxxxxxx Xxxx Xx. Xxxxxxxx X. Xxxxxxx
Vice President Strategic Business President and Chief Executive
Development Officer
Global Operations
