CONSULTING AGREEMENT
This Agreement is made and entered into as of March 15, 2000 (the
"Effective Date") by and between Xxxxxxx Xxxxxx and Internet Commerce
Corporation, a Delaware corporation.
DEFINITIONS
As used throughout this Settlement and Release:
1. "Golden" refers to Xxxxxxx Xxxxxx, her heirs, executors,
administrators, agents, successors, assigns and dependents.
2. "ICC" refers to Internet Commerce Corporation and its Affiliates
and their successors.
RECITALS
WHEREAS, Golden has resigned her employment with ICC as Executive
Vice President of New Business Development; and
WHEREAS, ICC desires to retain Golden's services as a consultant,
and Golden desires to provide such services; and
WHEREAS, this Agreement is being executed simultaneously with the
Agreement and Release between Golden and ICC dated as of March 15, 2000 (the
"Release");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and set forth in the Agreement and Release
between Golden and ICC dated as of March 15, 2000, and intending to be and being
legally bound hereby, the parties agree as follows:
AGREEMENT
1. Engagement; Term. ICC hereby engages Golden, and Golden hereby
accepts such engagement and agrees to serve as a consultant to the Company, upon
the terms and conditions hereinafter set forth, for a term commencing on March
16, 2000 (the "Effective Date") and (unless sooner terminated as hereinafter
provided) expiring twenty-four months after the Effective Date (such term being
hereinafter referred to as the "Term").
2. Duties. During the Term, Golden shall be available to render
consulting services not to exceed twenty hours per month from time to time as
hereinafter provided on such project or projects relating to corporate
development of the Company as may be reasonably delegated to Golden by the Board
of Directors or Chief Operating Officer of ICC. Golden agrees that she shall use
her best efforts to perform such services faithfully and diligently, and to the
best of her ability.
3. Compensation. As full compensation for all services to be
provided by Golden hereunder during the Term:
(a) ICC shall pay to Golden an aggregate payment of $500,000,
payable in eight equal quarterly installments, with the first such installment
to be paid upon the expiration of the revocation period referenced in paragraph
17 of the Release and the remaining payments to be made on each of the three,
six, nine, twelve, fifteen, eighteen, and twenty-four month anniversaries of the
Effective Date.
(b) In addition, on the Effective Date, ICC shall xxxxx Xxxxxx
a non-qualified stock option (the "New Option") to purchase 100,000 shares of
Class A common stock, par value $.01 per share, of ICC (the "Common Stock"). The
date of grant of the New Option shall be the Effective Date. The exercise price
of the New Option shall be the closing price of the Common Stock on the Nasdaq
Small Cap market on the trading day immediately preceding the Effective Date.
The New Option shall be fully vested and exercisable immediately upon the
expiration of the revocation period referenced in paragraph 17 of the Release
and shall remain exercisable for ten years from the Effective Date. The Common
Stock subject to the New Option shall be registered by ICC on a Form S-8 or Form
S-3 (or any successor or other appropriate form) as soon as practicable
following the Effective Date, and ICC shall use its reasonable commercial
efforts to cause such registration statement to become and remain effective for
as long as the New Option, or a portion thereof, remains outstanding, as soon as
reasonably possible. The number of shares subject to the New Option and the
exercise price thereof shall be appropriately and proportionately adjusted
simultaneously with any recapitalization, reclassification, stock split, reverse
stock split, exchange of shares or other similar changes in capitalization or
any reorganization of ICC (whether by merger, consolidation, compulsory share
exchange or otherwise) or any distribution of stock or property of ICC in
respect of shares of Common Stock (or such other securities issued in exchange
therefor), and adjustment shall be made successively for all such changes and
actions.
(c) Pursuant to grants made to Golden on March 19, 1997, which
are governed by the terms of the 1994 Stock Option Plan, Golden has outstanding
options to acquire 376,397 shares of Common Stock, which are fully vested and
exercisable as of the Effective Date (the "Prior Options"). The exercise price
for 199,046 shares of Common Stock underlying the Prior Options is $00.301, and
the exercise price for the remaining 177,351 shares of Common Stock underlying
the Prior Options is $00.338. Golden shall have three months following the
Effective Date to exercise all Prior Options that qualify to be treated as
"incentive stock options" ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and one year from the
Effective Date to exercise all Prior Options that do not qualify to be treated
as ISOs. For as long as the Prior Options remain outstanding, ICC shall use
reasonable commercial efforts to maintain the effectiveness of a registration
statement on Form S-8 or S-3 (or any successor or other appropriate form).
4. Termination for Cause. ICC may terminate the consulting engagement
hereunder and this Agreement at any time for Cause. For purposes of this
Agreement, the term "Cause" shall mean any material breach by Golden of the
Agreement and Release of even date hereof between ICC and Golden; provided,
however, that a termination for cause shall not become effective unless Golden
fails to cure breach within seven (7) days after written notice
from the Company, such notice to describe such breach and identify what
reasonable actions shall be required to cure such breach, if such breach is
susceptible of cure.
5. Cooperation. Golden shall cooperate fully with ICC in the
prosecution or defense, as the case may be, of any and all actions, governmental
inquiries or other legal proceedings in which Golden's assistance may be
requested by ICC. Such cooperation shall include, among other things, making
documents relating to ICC or its affiliates in Golden's custody or control
available to ICC or its counsel, making Golden available for interviews by ICC
or its counsel, and being available to appear as a witness, at deposition, trial
or otherwise. Any reasonable vouchered out-of-pocket expenses incurred by Golden
in fulfilling her obligations under this Section 6 shall be promptly reimbursed
by ICC. The provisions of this Section 6 shall survive the termination or
expiration of this Agreement and the Term.
6. Notices. Any notice, consent, request or other communication made or
given in accordance with this Agreement shall be in writing and shall be deemed
to have been duly given when actually received or, if mailed, three days after
mailing by registered or certified mail, return receipt requested, to those
persons listed below at their following respective addresses or at such other
address or person's attention as each may specify by notice to the other:
To ICC:
Internet Commerce Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
To Golden:
Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
7. Miscellaneous.
(d) The failure of either party at any time to require
performance by the other party of any provision hereunder will in no way affect
the right of that party thereafter to enforce the same, nor will it affect any
other party's right to enforce the same, or to enforce any of the other
provisions in this Agreement; nor will the waiver by either party of the breach
of any provision hereof be taken or held to be a waiver of any prior or
subsequent breach of such provision or as a waiver of the provision itself.
(e) This Agreement is a personal contract calling for the
provision of unique services by Golden, and Golden's rights and obligations
hereunder may not be sold, transferred, assigned, pledged or hypothecated. The
rights and obligations of ICC hereunder will be binding upon and run in favor of
the successors and assigns of ICC.
(f) The unenforceability or invalidity of any provision or
provisions of this Agreement and Release shall not render any other provision or
provisions hereof unenforceable or invalid.
(g) The parties agree that any disputes concerning the
interpretation or application of this Agreement shall be governed by New York
law and submitted to a court in New York, without regard to principles of
conflict of law or where the parties are located at the time a dispute arises.
The prevailing party in any action brought under this Agreement shall be
entitled to recovery of all costs, including reasonable attorneys' fees, costs,
and expenses incurred by the other party in connection with such proceeding.
(h) This Agreement, together with the Release, sets forth the
entire understanding between the parties as to the subject matter of this
Agreement and merges and supersedes all prior agreements, commitments,
representations, writings and discussions between the parties with respect to
that subject matter. This Agreement may be terminated, altered, modified or
changed only by a written instrument signed by both parties hereto.
(i) The Section headings herein are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement
(j) The provisions of this Agreement which by their terms call
for performance subsequent to the expiration or other termination of the Term,
or of this Agreement, shall so survive such expiration or termination.
(k) In rendering the services to be rendered by Golden
hereunder, Golden shall be an independent contractor. Golden shall not be
considered as having employee status or being entitled to participate in any
employee plans, arrangements or distributions by ICC. Golden shall not act as an
agent of ICC and shall not be entitled to enter into any agreements, incur any
obligations on behalf of ICC, or be authorized to bind ICC in any manner
whatsoever. No form of joint venture, partnership or similar relationship
between the parties is intended or hereby created. As an independent contractor,
Golden shall be solely responsible for determining the means and methods for
performing the services to be rendered hereunder. All of Golden's activities
will be at her own risk and Golden is hereby given notice of its responsibility
for arrangements to guard against physical, financial, and other risks, as
appropriate. Except as otherwise required by law, ICC shall not withhold any
sums from the payments to be made for Social Security or other federal, state or
local tax liabilities or contributions, and all withholding, liabilities, and
contributions shall be solely Golden's responsibility.
(l) This Agreement shall be null, void, and of no further
effect if Golden revokes the Release in accordance with paragraph 17 of the
Release.
IN WITNESS WHEREOF, the parties have executed this Agreement.
INTERNET COMMERCE CORPORATION
By:
--------------------------- ------------------------------------
Xxxxxxx Xxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
