Exhibit 4.8
AGREEMENT
This agreement dated June 15, 2000, together with the exhibits
annexed hereto (the "Agreement"), is made by and between: (i) Xxxxx Xxxxxxx
("Xxxxxxx"); and (ii) Internet Commerce Corporation ("ICC") and G. Xxxxxxx
Xxxxxxx ("Xxxxxxx"; together with ICC, the "ICC Parties"; and collectively, with
ICC and Xxxxxxx, the "Parties" and, individually, a "Party").
WHEREAS, on or about March 20, 2000, Xxxxxxx sent to the ICC
Parties and Xxxxxxx Xxxxxx ("Golden") a draft complaint (the "Draft") in
contemplation of potential litigation (the "Potential Litigation");
WHEREAS, the Draft requested that a constructive trust be imposed
in favor of Xxxxxxx on certain ICC shares and options held by Golden and Xxxxxxx
proportionate to Xxxxxxx'x former shareholdings in an entity that was known
(prior to 1997) as Internet Commerce Corporation;
WHEREAS, Xxxxxxx, the ICC Parties and Golden entered into a
series of stipulations for the purpose of holding the Potential Litigation in
abeyance without prejudice while the Parties and Golden engaged in settlement
discussions;
WHEREAS, the allegations set forth in the Draft caused the ICC
Parties to believe that Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxx
Xxxxxxxx and/or related parties (collectively, the "Xxxxxxxx Group") might
commence a separate litigation against the ICC Parties and Golden arising out of
the same alleged circumstances as those set forth in the Draft; and
WHEREAS, the Parties desire both to have Xxxxxxx provide
consulting services to the ICC Parties in the event that the Xxxxxxxx Group, or
any of them, serve legal process upon the ICC parties, and to fully and finally
compromise, settle and resolve any and all claims that may have existed between
Xxxxxxx, on the one hand, and the ICC Parties, on the other hand, as set forth
in this Agreement.
NOW, THEREFORE, in consideration of these premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be bound, covenant and agree as follows:
1. Xxxxxxx shall consult with the ICC Parties as they may request
from time to time on reasonable notice under the circumstances concerning any
claims and/or the defense of any proceeding brought against them (or either of
them) by the Xxxxxxxx Group (or any of them). Such consulting shall include,
among other things: providing documents requested by the ICC Parties or their
counsel; being available for interviews by the ICC Parties or their counsel; and
being available to appear as a witness whether at deposition, trial or
otherwise. Under this consultancy, Xxxxxxx shall be acting as an independent
contractor to the Company with no right to bind or act on behalf of the Company.
Xxxxxxx may have counsel present at or involved in such consultations at his own
expense, but shall be reimbursed by ICC for his own reasonable travel expenses
incurred in the event that he is required to provide consulting services
hereunder outside of the City of New York. The forgoing consultancy: (i) shall
end at the later of (a) three years from the date hereof (the "Termination
Date") or (b) upon the conclusion of any proceeding commenced on or before the
Termination Date by the Xxxxxxxx Group (or any of them) against the ICC Parties
(or either of them); (ii) shall not restrict Xxxxxxx in any way as to the types
or areas of business activity in which he may engage (and ICC specifically
waives any conflict if Xxxxxxx, in the course of his regular business
activities,
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represents competitors of ICC); (iii) shall not cause Xxxxxxx to be provided
with any of ICC's material non-public information; and (iv) shall not cause
Xxxxxxx to have any consulting obligations except as set forth above.
2. Within five (5) business days after mutual execution and
delivery of this Agreement:
(i) ICC shall deliver to or at the direction of Xxxxxxx,
certificates representing 10,000 shares of ICC's Class A Common Stock (the
"Shares"), and Xxxxxxx shall pay to ICC the Shares' par value of $0.01 per share
(for an aggregate payment by Xxxxxxx to ICC of $100);
(ii) ICC and Xxxxxxx shall execute and deliver an option
agreement (the "Option Agreement") in the form of Exhibit A annexed hereto and
made a part of this Agreement giving Xxxxxxx the right to purchase (the "Option
Right") 50,000 shares of ICC's Class A common stock (the "Option Shares"), which
Option Right shall be immediately vested at the time of mutual execution and
delivery of the Option Agreement;
(iii) ICC shall register under the Securities Act of 1933, as
amended, pursuant to a Registration Statement on Form S-8, both the Shares and
the Option Shares to be issued to Xxxxxxx upon exercise by Xxxxxxx of the Option
Right pursuant to the Option Agreement, and such Shares and Option Shares shall
be provided to Xxxxxxx without legend; and
(iv) (a) Xxxxxxx shall execute and deliver to the ICC Parties,
a fully executed and acknowledged Release in the form of Exhibit B annexed
hereto and made a part of this Agreement; and (b) the ICC Parties shall execute
and deliver to Xxxxxxx, fully
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executed and acknowledged Releases in the form of Exhibits C and D annexed
hereto and made a part of this Agreement.
3. Paragraphs 2(i), (ii), and (iii) are subject to approval by
ICC's Board of Directors (the "Board"). ICC shall present the issue of whether
to approve Paragraphs 2(i), (ii) and (iii) to the Board at its next meeting,
which is scheduled to occur on June 19, 2000. If Board approval is not obtained
at such meeting: (i) this Agreement shall immediately become null and void and
of no further force or effect; (ii) ICC shall notify Xxxxxxx immediately; and
(iii) none of the Parties shall be prejudiced in any way by the passage of time
between June 16, 2000 and one week from the date that ICC notifies Xxxxxxx of
the Board's decision in any litigation Xxxxxxx subsequently commences against
the ICC Parties arising out of the allegations set forth in the Draft. In the
event that the last publicly traded sale of the Shares on June 19, 2000 is less
than $14.75 per share, then Xxxxxxx may notify the Company that he is
terminating this Agreement by providing written facsimile notice to Xxxxxx Xxxxx
Xxxxxxxx & Xxxxxxx LLP (Attention: Xxxxxx X. Xxxxxxxxx, Esq.; facsimile no.
(000) 000-0000) by no later than 6:00 p.m. on such date (the "Notice"). In the
event Xxxxxxx provides the Notice, this Agreement shall immediately become null
and void and of no further force or effect. Notwithstanding the foregoing, in
the event this Agreement becomes null and void pursuant to this paragraph, the
Parties agree that all settlement discussions hereunder, this Agreement, and all
drafts hereof shall remain confidential and subject to the terms of Paragraph 7
hereof.
4. It is the intent of the Parties that GOL ss. 15-108 apply to
the consideration received by Xxxxxxx under this Agreement. Therefore, in
accordance with GOL ss. 15-108, the ICC Parties expressly acknowledge that
Xxxxxxx is not releasing, and is fully reserving, all of his claims, if any,
against Golden, and it is intended by all of the Parties to exclude from the
scope of the Releases herein any and all claims that Xxxxxxx may have against
Golden. The
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ICC Parties further acknowledge that Xxxxxxx intends to pursue a litigation
against Golden (the "Xxxxxxx/Golden Litigation"). Xxxxxxx agrees that, in the
Xxxxxxx/Golden Litigation, he will not assert theories of vicarious liability
and/or respondeat superior against Golden based upon any alleged acts and/or
omissions by the ICC Parties (or either of them). Xxxxxxx further agrees that,
if, notwithstanding the above, GOL ss. 15-108 is found not to apply in the
Xxxxxxx/Golden Litigation (or in a separate action commenced by Golden or her
successors, heirs, or assigns (the "Golden Defendants")) and, if Golden, in any
litigation, obtains a judgment for contribution arising out of the
Xxxxxxx/Golden Litigation (the "Contribution Judgment") against any of the ICC
Parties, or either of them, or either of their successors, heirs, or assigns
(collectively, the "Contribution Defendants"), then Xxxxxxx (and his successors,
heirs, and assigns (collectively, the "Xxxxxxx Parties")), in collecting on any
judgment against the Golden Defendants (the "Primary Judgment") shall either:
(i) seek to collect only the difference between the Primary Judgment and the
Contribution Judgment (the "Difference"), so that the Contribution Defendants
shall not have to make any payment; or (ii) if necessary to allow the Xxxxxxx
Parties to collect the Difference in full, the Xxxxxxx Parties, in collecting
the Primary Judgment, shall be deemed to be acting as trustee to the extent the
Contribution Defendants pay any portion of the Contribution Judgment and shall,
immediately upon receipt, restore to the Contribution Defendants any amounts
they have paid on account of the Contribution Judgment; and until such time as
the Contribution Defendants recover all amounts paid on account of the
Contribution Judgment, the Xxxxxxx Parties irrevocably appoint counsel to be
designated by the Contribution Defendants to serve as collection and escrow
agent for the Xxxxxxx Parties in collecting and appropriately disbursing the
Primary Judgment.
5. The ICC Parties: (i) designate Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
LLP (Attention: Xxxxxx X. Xxxxxxxxx, Esq.) as their agent for service of any
discovery subpoena that
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Xxxxxxx may seek to serve in the Xxxxxxx/Golden Litigation; and (ii) agree that,
in response to any deposition subpoena so served by Xxxxxxx in the
Xxxxxxx/Golden Litigation that also calls for the production of documents, they
will not object on the ground that Xxxxxxx relied on CPLR 3111 rather than CPLR
3120, but otherwise reserve all other objections including, without limitation,
to the scope of any such document request.
6. Nothing in this Agreement is intended to be, nor shall it be
construed as, an admission of wrongdoing or liability by any of the Parties, and
each of the Parties expressly denies any wrongdoing and/or liability on its
part.
7. (i) The existence and terms of this Agreement are and shall be
deemed confidential and shall not be disclosed by the Parties, or any person
acting or who acted on behalf of the Parties to any other person or entity,
except that the Parties may disclose the terms and conditions of this Agreement:
(a) to their officers, directors, employees, accountants, agents and
representatives (the "Related Parties") who may require such information and who
will be advised of the confidentiality provisions of the Agreement; (b) as
required by law; (c) to effectuate the purpose of Paragraph 4 hereof; and/or (d)
with respect to the existence of this Agreement only, in response to an inquiry
by the Court in the Xxxxxxx/Golden Litigation.
(ii) Except pursuant to a notice of deposition or other legal
process or subpoena or an order of a government body or court of competent
jurisdiction ("Legal Process") and as otherwise provided herein, and then only
provided that the Party receiving such Legal Process has complied with Paragraph
7(iv) of this Agreement, no Party, nor any person acting or who acted on any
Party's behalf, shall disclose to or discuss with any person or entity any
information concerning the Potential Litigation or any matters relating directly
or indirectly to
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this Agreement or the terms hereof, it being understood, however, that Xxxxxxx
intends to and may pursue the allegations set forth in the Draft in the
Xxxxxxx/Golden Litigation;
(iii) No Party nor any person acting or who acted on any
Party's behalf shall solicit or initiate any demand or request by others for the
disclosure of, or encourage or induce any other person or entity to make any
comment or disclose, any matter that the Parties may not make or disclose
pursuant to this Paragraph 7;
(iv) Xxxxxxx agrees to give the ICC Parties and the ICC
Parties agree to give Xxxxxxx written notice of any and all attempts to compel
disclosure of any information that this Paragraph 7 prohibits disclosing. The
noticing Party shall provide such written notice in a manner such that the other
Party receives the notice at least five (5) days before compliance with any
Legal Process is required, but if the Legal Process requires compliance within
less than five days, the noticing Party shall provide written notice by
facsimile or hand delivery and telephonic notice to the other Party within one
(1) business day after receiving such Legal Process that an attempt will be or
has been made to compel such disclosure; and
(v) Damages to be paid in the event of a breach of this
Paragraph 7 shall include, without limitation, any legal fees incurred in
defending, settling, and/or paying an adverse judgment or arbitration award in
any litigation or arbitration brought against the non-breaching Party by a third
party to whom information was disclosed in breach of this Paragraph 7.
8. This Agreement may not be amended, modified or terminated
except by a written instrument signed by the Parties.
9. This Agreement constitutes the entire agreement relating to
the subject matter hereof and supersedes any prior or contemporaneous
representation, warranty, agreement
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or other communication concerning the subject matter hereof. The Parties
represent and warrant that there have been no representations, warranties or
agreements relating to the agreements set forth herein (and that no Party is
relying on any representations, warranties or agreements) except as herein
specifically set forth.
10. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
11. The Parties and their counsel have participated in the
drafting and negotiation of this Agreement, and it shall be deemed to have been
drafted jointly by them.
12. This Agreement is valid, legal and binding upon and shall
inure to the benefit of the Parties and their respective heirs, executors,
administrators, successors, assigns, affiliates and Related Parties.
13. The Parties agree that the non-monetary obligations set forth
in this Agreement are unique and may be specifically enforced including, without
limitation, through injunctive relief.
14. All of the terms and provisions of this Agreement shall
survive the execution and delivery hereof.
15. In any action to enforce the terms of this Agreement, the
prevailing Party shall recover its costs, expenses, and reasonable attorneys'
fees.
16. This Agreement is executed voluntarily by each of the Parties
without any duress or undue influence on the part of, or on behalf, any of them.
The Parties acknowledge that they have: been represented, or have had the
opportunity to be represented, in the
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negotiations for and in the performance of this Agreement by counsel of their
own choice; read this Agreement; had this Agreement fully explained to them by
such counsel or have had such opportunity; and been made fully aware of the
contents of this Agreement and of its legal effect.
INTERNET COMMERCE CORPORATION
June 15, 2000
By: _____________________________________
Xx. Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
June 15, 2000 __________________________________________
Xxxxx Xxxxxxx
June 15, 2000 __________________________________________
G. Xxxxxxx Xxxxxxx
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