EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
THE INTERCEPT GROUP, INC., a Georgia corporation (the "Company"), and XXXX X.
XXXXXXX, an individual resident of Georgia (the "Executive"), as of the 30th day
of January, 1998 (the "Effective Date").
The Company presently employs the Executive as its Chief Executive
Officer. The Board of Directors of the Company (the "Board") recognizes that
the Executive's contribution to the growth and success of the Company is
substantial. The Board desires to provide for the continued employment of the
Executive and to make certain changes in the Executive's employment arrangements
which the Board has determined will reinforce and encourage the continued
dedication of the Executive to the Company and will promote the best interests
of the Company and its shareholders. The Executive is willing to continue to
serve the Company on the terms and conditions herein provided.
Certain capitalized terms used in this Agreement are defined in
Section 20.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree (as of the Effective Date) that:
1. Employment. The Company shall continue to employ the Executive,
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and the Executive shall continue to serve the Company, as Chief Executive
Officer upon the terms and conditions set forth herein. The Executive shall
have such authority and responsibilities as are consistent with his position and
which may be set forth in the Bylaws or assigned by the Board from time to time.
The Executive shall devote his full business time, attention, skill and efforts
to the performance of his duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Company policy. The
Executive may devote reasonable periods of time to serve as a director or
advisor to other organizations, to perform charitable and other community
activities, and to manage his personal investments; provided, however, that such
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activities do not materially interfere with the performance of his duties
hereunder and are not in conflict or competitive with, or adverse to, the
interests of the Company.
2. Term. Unless earlier terminated as provided herein, the
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Executive's employment under this Agreement shall be for a continuing term (the
"Term") of three years, which shall be extended automatically (without further
action of the Company or the Executive) each day for an additional day so that
the remaining term shall continue to be three years; provided, however, that
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either party may at any time, by written notice to the other, fix the Term to a
finite term of three years, without further automatic extension, commencing with
the date of such notice.
3. Compensation and Benefits.
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a. The Company shall pay the Executive a salary at a rate of not less
than $265,000 per annum in accordance with the salary payment practices of the
Company. The
Board (or the Compensation Committee) shall review the Executive's salary at
least annually (on or before January 30, 1999, for the first review) and may
increase the Executive's base salary if it determines in its sole discretion
that an increase is appropriate.
b. The Executive shall be eligible to participate in any management
incentive programs established by the Company and to receive incentive
compensation based upon achievement of targeted levels of performance and such
other criteria as the Board or Compensation Committee may establish from time to
time. In addition, the Board or the Compensation Committee shall annually
consider the Executive's performance and determine if any additional bonus is
appropriate.
c. The Executive may participate in the Plan and shall be eligible
for the grant of stock options, restricted stock and other awards thereunder.
d. The Executive shall continue to participate in all retirement,
welfare, deferred compensation, life and health insurance (including health
insurance for Executive's spouse and his dependents), and other benefit plans or
programs of the Company now or hereafter applicable to the Executive or
applicable generally to Executives of the Company or to a class of Executives
that includes senior executives of the Company; provided, however, that during
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any period during the Term that the Executive is subject to a Disability, and
during the 180-day period of physical or mental infirmity leading up to the
Executive's Disability, the amount of the Executive's compensation provided
under this Section 3 shall be reduced by the sum of the amounts, if any, paid to
the Executive for the same period under any disability benefit or pension plan
of the Company or any of its subsidiaries.
e. The Company shall provide to the Executive an automobile owned or
leased by the Company of a make and model appropriate to the Executive's status
(in the reasonable opinion of the Executive) or, in lieu thereof, shall provide
the Executive with an annual allowance of not less than $15,000 to partially
cover the cost of the business use of an automobile owned or leased by the
Executive.
f. The Company shall reimburse the Executive's reasonable expenses
for dues and capital assessments for country and dining club memberships
currently held by the Executive; provided, however, that if the Executive during
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the term of his employment with the Company ceases his membership in any such
clubs and any bonds or other capital payments made by the Company are repaid to
the Executive, the Executive shall pay over such payments to the Company.
g. The Company shall continue to reimburse the Executive for travel,
seminar and other expenses related to the Executive's duties which are incurred
and accounted for in accordance with the historic practices of the Company.
4. Termination.
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a. The Executive's employment under this Agreement may be terminated
prior to the end of the Term only as follows:
(i) upon the death of the Executive;
(ii) by the Company due to the Disability of
the Executive upon delivery of a Notice of Termination to the
Executive;
(iii) by the Company for Cause upon delivery of a Notice of
Termination to the Executive;
(iv) prior to a Change in Control, by the Company without
Cause upon no less than ninety (90) days written notice to the
Executive, provided the Company satisfies the provisions of Section
4(d); and
(v) by the Executive for any reason upon delivery of a
Notice of Termination to the Company within a 90-day period beginning
on the 30th day after any occurrence of a Change in Control or within
a 90-day period beginning on the one year anniversary of the
occurrence of any Change in Control.
b. If the Executive's employment with the Company shall be
terminated during the Term (i) by reason of the Executive's death, or (ii) by
the Company for Disability or Cause, the Company shall pay to the Executive (or
in the case of his death, the Executive's estate) within 15 days after the
Termination Date, a lump sum cash payment equal to the Accrued Compensation and,
if such termination is other than by the Company for Cause, the Pro Rata Bonus.
c. If the Executive's employment with the Company shall be
terminated after a Change in Control either (i) by the Company without Cause or
otherwise in violation of this Agreement or (ii) by the Executive for any
reason, in addition to other rights and remedies available in law or equity, the
Executive shall be entitled to the following:
(i) the Company shall pay the Executive in cash within 15
days of the Termination Date an amount equal to all Accrued
Compensation and the Pro Rata Bonus;
(ii) the Company shall pay to the Executive in cash at the
end of each of the 36 consecutive 30-day periods following the
Termination Date an amount equal to one-twelfth of the sum of the Base
Amount and the Bonus Amount.
(iii) for the period from the Termination Date through the
date that Executive attains the age of 65 (the "Continuation Period"),
the Company shall at its expense continue on behalf of the Executive
and his dependents and beneficiaries the life insurance, disability,
medical, dental and hospitalization benefits provided (x) to the
Executive at any time during the 90-day period prior to
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the Change in Control or at any time thereafter or (y) to other
similarly situated executives who continue in the employ of the
Company during the Continuation Period, if permitted, in either case,
by the applicable benefit plan. The coverage and benefits (including
deductibles and costs) provided in this Section 4(c)(iii) during the
Continuation Period shall be no less favorable to the Executive and
his dependents and beneficiaries than the most favorable of such
coverages and benefits during any of the periods referred to in
clauses (x) and (y) above. The Company's obligation hereunder with
respect to the foregoing benefits shall be limited to the extent that
the Executive obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverages and benefits of the
combined benefit plans is no less favorable to the Executive than the
coverages and benefits required to be provided hereunder. This
subsection (iii) shall not be interpreted so as to limit any benefits
to which the Executive or his dependents or beneficiaries may be
entitled under any of the Company's Executive benefit plans, programs
or practices following the Executive's termination of employment,
including without limitation, retiree medical and life insurance
benefits; and
(iv) the restrictions on any outstanding incentive awards
(including stock options) granted to the Executive under the Plan or
under any other incentive plan or arrangement shall lapse and such
incentive award shall become 100% vested, and all stock options and
stock appreciation rights granted to the Executive shall become
immediately exercisable and shall become 100% vested.
d. If, prior to a Change in Control, the Company terminates the
Executive without Cause, the Company shall pay the Executive in cash:
(i) within fifteen (15) days of the Termination Date, an
amount equal to all Accrued Compensation and the Pro Rata Bonus; and
(ii) at the end of each of the twelve (12) consecutive
thirty (30) day periods following the Termination Date, an amount
equal to (1/12) of the sum of the Base Amount and the Bonus Amount.
e. In the event that the Executive shall no longer be the Chief
Executive Officer of the Company, other than by voluntary resignation, the
Company shall, within 10 days after termination as Chief Executive Officer,
offer to repurchase all of the Company's common stock owned by the Executive, at
a purchase price equal to the Fair Market Value of the common stock, as
determined in accordance with the provisions below. The question of the Fair
Market Value of the Company's common stock shall be submitted to three impartial
and reputable appraisers. The Executive and the Company shall each select one
appraiser, and such appraisers shall select a third, independent appraiser. The
three appraisers shall thereafter proceed as expeditiously as possible to
determine (by concurrence of a majority of such appraisers) the Fair Market
Value of the common stock, and the appraisers shall deliver an appraisal report
to the
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Executive and the Company as soon as practicable after it is completed. The
determination of the question of the Fair Market Value of the common stock by
such appraisers shall be final and binding on the Executive and the Company for
purposes of this Agreement. The Company shall pay the reasonable fees and
expenses of such appraisers. For the purposes hereof, "Fair Market Value" shall
mean the relevant percentage of the fair value of the business of the Company
represented by the shares of common stock as to which such determination is
being made, which shall be determined on a going concern basis and as between a
willing seller and a willing buyer, taking into account the Company's financial
condition, performance, market share and other relevant criteria, but not taking
into account the absence of a public market for the shares or that the shares
constitute a minority interest in the Company.
f. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent employment except as
provided in Section 4(c)(iii).
g. In the event that any payment or benefit (within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")) to the Executive or for his benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, his employment with the Company or a change in
ownership or effective control of the Company or of a substantial portion of its
assets (a "Payment" or "Payments"), would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive will be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties, other than interest
and penalties imposed by reason of the Executive's failure to file timely a tax
return or pay taxes shown due on his return, imposed with respect to such taxes
and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
h. The severance pay and benefits provided for in this Section 4
shall be in lieu of any other severance or termination pay to which the
Executive may be entitled under any Company severance or termination plan,
program, practice or arrangement. The Executive's entitlement to any other
compensation or benefits shall be determined in accordance with the Company's
Executive benefit plans and other applicable programs, policies and practices
then in effect.
5. Protection of Trade Secrets and Confidential Information .
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a. Through exercise of his rights and performance of his obligations
under this Agreement, Executive will be exposed to "Trade Secrets" and
"Confidential Information" (as those terms are defined below). "Trade Secrets"
shall mean information or data of or about the Company or any affiliated entity,
including, but not limited to, technical or nontechnical data,
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formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, products plans, or lists
of actual or potential customers, clients, distributors, or licensees, that: (i)
derive economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from their disclosure or use; and (ii) are the subject of
efforts that are reasonable under the circumstances to maintain their secrecy.
To the extent that the foregoing definition is inconsistent with a definition of
"trade secret" mandated under applicable law, the latter definition shall govern
for purposes of interpreting Executive's obligations under this Agreement.
Except as required to perform his obligations under this Agreement or except
with Company's prior written permission, Executive shall not use, redistribute,
market, publish, disclose or divulge to any other person or entity any Trade
Secrets of the Company. The Executive's obligations under this provision shall
remain in force (during or after the Term) for so long as such information or
data shall continue to constitute a "trade secret" under applicable law.
Executive agrees to cooperate with any and all confidentiality requirements of
the Company and Executive shall immediately notify the Company of any
unauthorized disclosure or use of any Trade Secrets of which Executive becomes
aware.
b. The Executive agrees to maintain in strict confidence and, except
as necessary to perform his duties for the Company, not to use or disclose any
Confidential Business Information at any time, either during the term of his
employment or for a period of one year after the Executive's last date of
employment, so long as the pertinent data or information remains Confidential
Business Information. "Confidential Business Information" shall mean any non-
public information of a competitively sensitive or personal nature, other than
Trade Secrets, acquired by the Executive, directly or indirectly, in connection
with the Executive's employment (including his employment with the Company prior
to the date of this Agreement), including (without limitation) oral and written
information concerning the Company or its affiliates relating to financial
position and results of operations (revenues, margins, assets, net income,
etc.), annual and long-range business plans, marketing plans and methods,
account invoices, oral or written customer information, and personnel
information. Confidential Business Information also includes information
recorded in manuals, memoranda, projections, minutes, plans, computer programs,
and records, whether or not legended or otherwise identified by the Company and
its affiliates as Confidential Business Information, as well as information
which is the subject of meetings and discussions and not so recorded; provided,
however, that Confidential Business Information shall not include information
that is generally available to the public, other than as a result of disclosure,
directly or indirectly, by the Executive, or was available to the Executive on a
non-confidential basis prior to its disclosure to the Executive.
c. Upon termination of employment, the Executive shall leave with
the Company all business records relating to the Company and its affiliates
including, without limitation, all contracts, calendars, and other materials or
business records concerning its business or customers, including all physical,
electronic, and computer copies thereof, whether or not the Executive prepared
such materials or records himself. Upon such termination, the Executive shall
retain no copies of any such materials.
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d. As set forth above, the Executive shall not disclose Trade
Secrets or Confidential Business Information. However, nothing in this
provision shall prevent the Executive from disclosing Trade Secrets or
Confidential Business Information pursuant to a court order or court-issued
subpoena, so long as the Executive first notifies the Company of said order or
subpoena in sufficient time to allow the Company to seek an appropriate
protective order. The Executive agrees that if he receives any formal or
informal discovery request, court order, or subpoena requesting that he disclose
Trade Secrets or Confidential Business Information, he will immediately notify
the Company and provide the Company with a copy of said request, court order, or
subpoena.
6. Non-Solicitation and Related Matters.
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a. If the Executive is terminated for Cause or if the Executive
resigns without Adequate Justification, then for a period of two years following
the date of termination, the Executive shall not (except on behalf of or with
the prior written consent of the Company) either directly or indirectly, on the
Executive's own behalf or in the service or on behalf of others, (i) solicit,
divert, or appropriate to or for a Competing Business, or (ii) attempt to
solicit, divert, or appropriate to or for a Competing Business, any person or
entity that was a customer or prospective customer of the Company on the date of
termination and with whom the Executive had direct material contact within six
months of the Executive's last date of employment.
b. If the Executive is terminated for Cause or if the Executive
resigns without Adequate Justification, then for a period of two years following
the date of termination, the Executive will not, either directly or indirectly,
on the Executive's own behalf or in the service or on behalf of others, (i)
solicit, divert, or hire away, or (ii) attempt to solicit, divert, or hire away
any employee of or consultant to the Company or any of its affiliates engaged or
experienced in the Business, regardless of whether the employee or consultant is
full-time or temporary, the employment or engagement is pursuant to written
agreement, or the employment is for a determined period or is at will.
c. The Executive acknowledges and agrees that great loss and
irreparable damage would be suffered by the Company if the Executive should
breach or violate any of the terms or provisions of the covenants and agreements
set forth in this Section 6. The Executive further acknowledges and agrees that
each of these covenants and agreements is reasonably necessary to protect and
preserve the interests of the Company. The parties agree that money damages for
any breach of clauses (a) and (b) of this Section 6 will be insufficient to
compensate for any breaches thereof, and that the Executive or any of the
Executive's affiliates, as the case may be, will, to the extent permitted by
law, waive in any proceeding initiated to enforce such provisions any claim or
defense that an adequate remedy at law exists. The existence of any claim,
demand, action, or cause of action against the Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any of the covenants or agreements in this Agreement;
provided, however, that nothing in this Agreement shall be deemed to deny the
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Executive the right to defend against this enforcement on the basis that the
Company has no right to its enforcement under the terms of this Agreement.
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d. The Executive acknowledges and agrees that: (i) the covenants
and agreements contained in clauses (a) through (e) of this Section 6 are the
essence of this Agreement; (ii) that the Executive has received good, adequate
and valuable consideration for each of these covenants; and (iii) each of these
covenants is reasonable and necessary to protect and preserve the interests and
properties of the Company. The Executive also acknowledges and agrees that:
(i) irreparable loss and damage will be suffered by the Company should the
Executive breach any of these covenants and agreements; (ii) each of these
covenants and agreements in clauses (a) and (b) of this Section 6 is separate,
distinct and severable not only from the other covenants and agreements but also
from the remaining provisions of this Agreement; and (iii) the unenforceability
of any covenants or agreements shall not affect the validity or enforceability
of any of the other covenants or agreements or any other provision or provisions
of this Agreement. The Executive acknowledges and agrees that if any of the
provisions of clauses (a) and (b) of this Section 6 shall ever be deemed to
exceed the time, activity, or geographic limitations permitted by applicable
law, then such provisions shall be and hereby are reformed to the maximum time,
activity, or geographical limitations permitted by applicable law.
e. The Executive and the Company hereby acknowledge that it may be
appropriate from time to time to modify the terms of this Section 6 and the
definition of the term "Business" to reflect changes in the Company's business
and affairs so that the scope of the limitations placed on the Executive's
activities by this Section 6 accomplishes the parties' intent in relation to the
then current facts and circumstances. Any such amendment shall be effective
only when completed in writing and signed by the Executive and the Company.
7. Successors; Binding Agreement.
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a. This Agreement shall be binding upon and shall inure to the
benefit of the Company, its Successors and Assigns and the Company shall require
any Successors and Assigns to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.
b. Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative.
8. Fees and Expenses. The Company shall pay all reasonable legal
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fees and related expenses (including but not limited to the costs of experts,
accountants and counsel) incurred by the Executive as they become due as a
result of (a) the termination of the Executive's employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment) and (b) the Executive seeking to obtain or enforce
any right or benefit provided by this Agreement; provided, however, that the
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circumstances set forth in clauses (a) and (b) above occurred on or after a
Change in Control.
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9. Notice. For the purposes of this Agreement, notices and all
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other communications provided for in this Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other; provided, however, that all notices to the Company shall be
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directed to the attention of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received
on the date of delivery thereof.
10. Settlement of Claims. The Company's obligation to make the
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payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others. The Company may, however,
withhold from any benefits payable under this Agreement all federal, state,
city, or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
11. Modification and Waiver. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12. Governing Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Georgia
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in State of Georgia.
13. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.
15. Headings. The headings of Sections herein are included solely
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for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17. Demand Registration Rights.
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a. Rights. Subject to the provisions of this Section 17(a), upon
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the termination of the Executive's employment for any reason, the Executive may
request registration for sale under the Act of all or part of the Common Stock
then held by him (excluding, for purposes of this Section 17(a), shares subject
to the stock options held by the Executive as to which the vesting provisions
shall not have lapsed pursuant to this Agreement or otherwise). Any such
request shall specify the number of shares proposed to be registered and sold
and the name of the managing underwriter of the proposed offering (who must be
acceptable to the Company in its reasonable discretion).
b. Exceptions. The Company shall not be required to effect a demand
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registration under the Act pursuant to Section 17(a) above if: (i) the
aggregate market value of the shares of Common Stock proposed to be registered
does not equal or exceed $12,000,000 prior to the Initial Public Offering or
$2,000,000 after the Initial Public Offering; (ii) within 12 months prior to any
such request for registration, a registration of securities of the Company has
been effected in which the Executive had the right to participate pursuant to
this Section 17 or Section 18 hereof; (iii) the Company receives such request
for registration within 180 days preceding the anticipated effective date of a
proposed underwritten public offering of securities of the Company approved by
the Board prior to the Company's receipt of such request; or (iv) the Board
reasonably determines in good faith that effecting such a demand registration at
such time would have a material adverse effect upon a proposed sale of all (or
substantially all) of the assets of the Company, or a merger, reorganization,
recapitalization, or similar transaction materially affecting the capital
structure or equity ownership of the Company which is actively being negotiated
with another party whose identity is disclosed to the Executive; provided,
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however, that the Company may only delay a demand registration pursuant to this
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Section 17(b)(iv) for a period not exceeding six months (or until such earlier
time as such transaction is consummated or no longer proposed). The Company
shall promptly notify in writing the Executive of any decision not to effect any
such request for registration pursuant to this Section 17(b), which notice shall
set forth in reasonable detail the reason for such decision and shall include an
undertaking by the Company promptly to notify the Executive as soon as a demand
registration may be effected.
c. Reduction. If the managing underwriters, the Company and the
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Executive determine, after reasonable negotiations, that the number of shares of
Common Stock held by the Executive which the Executive requested to be included
in such registration exceeds the number which can be sold in such offering, then
the amount of such shares that may be included in such registration shall be
reduced to the number of shares that the managing underwriters, the Company and
the Executive determine is marketable, after reasonable negotiations.
d. Withdrawal. The Executive may withdraw at any time before a
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registration statement filed pursuant to this Section 17 is declared effective,
in which event the Company may withdraw such registration statement. If the
Company withdraws a registration statement under this Section 17(d) in respect
of a registration for which the Company would otherwise be required to pay some
expenses under Sections 19(c), (d) and (e) hereof, then the Executive shall be
liable to the Company for all expenses of such registration specified in
Sections 19(c), (d) and (e) hereof.
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18. Piggyback Registration Rights.
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a. Rights. Subject to the provision of this Section 18, if the
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Company proposes to make a registered public offering, including an initial
public offering, of any of its securities under the Act (whether to be sold by
it or by one or more third parties), other than an offering pursuant to a demand
registration under Section 17 hereof or an offering registered on Form X-0, Xxxx
X-0, or comparable forms, the Company shall, not less than 45 days prior to the
proposed filing date of the registration form, give written notice of the
proposed registration to the Executive, and at the written request of the
Executive delivered to the Company within 15 days after the receipt of such
notice, shall include in such registration and offering, and in any underwriting
of such offering, all shares of Common Stock as may have been designated in the
Executive's request.
b. Primary Offering Reduction. If a registration in which the
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Executive has the right to participate pursuant to this Section 18 is an
underwritten primary registration on behalf of the Company, and the managing
underwriters, the Company and the Executive determine, after reasonable
negotiations, that the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, then the
Company shall include in such registration the number of shares of Common Stock
requested to be sold by the Company, any other person who has registration
rights pursuant to a written agreement with the Company and the shares requested
by Executive in proportion to the number of shares of Common Stock so requested
by each of them to be so included.
c. Secondary Offering Reduction. If a registration in which the
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Executive has the right to participate pursuant to this Section 18 is an
underwritten secondary registration, and the managing underwriters, the Company
and the Executive determine, after reasonable negotiations, that the number of
shares requested to be included in such registration exceeds the number of
shares which can be sold in such offering, then the Company shall include in
such offering the number of shares of Common Stock owned and proposed to be sold
by the Company and by any other participants (including the Executive) proposing
(and entitled) to sell shares pursuant to such registration which the managing
underwriters, the Company and the Executive determine, after reasonable
negotiations, can be sold in the offering, in proportion to the number of shares
of Common Stock so requested by each of them to be included.
19. Other Registration Issues.
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a. The Company shall have no obligation to file a registration
statement pursuant to Section 17 hereof, or to include shares of Common Stock
owned by the Executive in a registration statement pursuant to Section 18
hereof, unless and until the Executive has furnished the Company with all
information and statements about or pertaining to the Executive in such
reasonable detail as is reasonably deemed by the Company to be necessary or
appropriate with respect to the preparation of the registration statement.
Whenever the Executive has requested that any shares of Common Stock be
registered pursuant to Section 17 or 18 hereof, subject to the provisions of
those Sections, the Company shall, as expeditiously as reasonably possible:
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(i) prepare and file with the SEC a registration statement with
respect to such shares and use its best efforts to cause such registration
statement to become effective as soon as reasonably practicable thereafter
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish counsel for the
Executive with copies of all such documents proposed to be filed);
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period
of not less than nine months or until the underwriters have completed the
distribution described in such registration statement, whichever occurs
first;
(iii) furnish to the Executive such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), and such other documents as the Executive may reasonably
request;
(iv) use its best efforts to register or qualify such shares under
such other securities or Blue Sky Laws of such jurisdictions as the Executive
reasonably requests (and to maintain such registrations and qualifications
effective for a period of nine months or until the underwriters have
completed the distribution of such shares, whichever occurs first), and to do
any and all other acts and things which may be necessary or advisable to
enable the Executive or underwriters to consummate the disposition in such
jurisdictions of such shares; provided, however, that the Company will not be
-------- -------
required to (a) qualify generally to do business in any jurisdiction where it
would not be required but for this Section 19(a)(iv), or (b) subject itself
to taxation in any such jurisdiction; provided, further, however, that,
-------- ------- -------
notwithstanding anything to the contrary in this Agreement with respect to
the bearing of expenses, if any such jurisdiction shall require that expenses
incurred in connection with the qualification of such shares in that
jurisdiction be borne in part or full by the Executive, then the Executive
shall pay such expenses to the extent required by such jurisdiction;
(v) cause all such shares to be listed on securities exchanges, if
any, on which similar securities issued by the Company are then listed;
(vi) provide a transfer agent and registrar for all such shares not
later than the effective date of such registration statements;
(vii) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Executive
and underwriters reasonably request (and subject to approval by the Company's
counsel) in order to expedite or facilitate the disposition of such shares;
and
12
(viii) make available for inspection by the Executive, by any
underwriter participating in any distribution pursuant to such registration
statement, and by any attorney, accountant or other agent retained by the
Executive or underwriter, or by any such underwriter, all financial and other
records, pertinent corporate documents, and properties (other than
confidential intellectual property) of the Company; provided, however, that
-------- -------
the Company can condition delivery of any information, records or corporate
documents upon the receipt from the Executive and the underwriter and their
counsel, accountants, advisors and agents, of a confidentiality agreement in
form and substance acceptable to the Company and its counsel in the exercise
of their exclusive discretion.
b. Holdback Agreement. In the event that the Company effects an
------------------
underwritten public offering of any of the Company's equity securities, the
Executive agrees, if requested by the managing underwriters, not to effect any
sale or distribution, including any sale pursuant to Rule 144 under the Act, of
any equity securities (except as part of such underwritten offering) during the
180-day period commencing with the effective date of the registration statement
for such offering.
c. Stockholder Expenses. If, pursuant to Section 17 or 18 hereof,
--------------------
shares of Common Stock owned by the Executive are included in a registration
statement, then the Executive shall pay all transfer taxes, if any, relating to
the sale of its shares, the fees and expenses of his own counsel, and its pro
rata portion of any underwriting discounts, fees or commissions or the
equivalent thereof.
d. The Company's Expenses. Except for the fees and expenses
----------------------
specified in Section 19(c) hereof and except as provided below in this Section
19(d), the Company shall pay all expenses incident to the registration and to
the Company's performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or Blue Sky Laws, underwriting discounts, fees and
commissions (other than the Executive's pro rata portion of any underwriting
discounts or commissions or the equivalent thereof), printing expenses,
messenger and delivery expenses, and fees and expenses of counsel for the
Company and all independent certified public accountants and other persons
retained by the Company. If the Company shall previously have paid, pursuant to
this Section 19(d), the expenses of a registration, then the Executive shall pay
all expenses described in this Section 19(d) (but not expenses described in
Section 19(e) hereof).
e. Other. With respect to any registration pursuant to Section 17
-----
or 18 hereof, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties) and the expenses and fees for listing the securities
to be registered on exchanges on which similar securities issued by the Company
are then listed.
f. Indemnity. In the event that any shares of Common Stock owned by
---------
the Executive are offered or sold by means of a registration statement pursuant
to Section 17 or 18
13
hereof, the Company agrees to indemnify and hold harmless the Executive and each
person, if any, who controls or may control the Executive within the meaning of
the Act (the Executive and any such other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as "Indemnified
Persons") from and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses, including,
without limitation, interest, penalties, and reasonable attorneys fees and
disbursements, asserted against, resulting to, imposed upon or incurred by such
Indemnified Person, jointly or severally, directly or indirectly (hereinafter
referred to in this Section 19(f) in the singular as a "claim" and in the plural
as "claims"), based upon, arising out of, or resulting from any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement, any preliminary or final prospectus contained therein, or any
amendment or supplement thereto, or any document incident to registration or
qualification of any such shares, or any omission or alleged omission to state
therein a material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, or any
violation by the Company of the Act of any state securities or Blue Sky Laws,
except insofar as such claim is based upon, arises out of or results from
information developed or certified by the Executive for use in connection with
the registration statement or arises out of or results from the omission of
information known to the Executive prior to the violation or alleged violation.
The Executive agrees to indemnify and hold harmless the Company, its officers
and directors, and each person, if any, who controls or may control the Company
within the meaning of the Act (the Company, its officers and directors, and any
such persons also being hereinafter referred to individually in this context as
an "Indemnified Person" and collectively as "Indemnified Persons") from and
against all claims based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration statement, or any
omission to state therein a material fact necessary in order to make the
statement made therein, in the light of the circumstances under which they were
made, not misleading, to the extent that such claim is based upon, arises out
of, or results from information developed or certified by the Executive for use
in connection with the registration statement or arises out of, or results from
an omission of information known to the Executive prior to the violation or
alleged violation; provided, however, that the maximum amount of liability
-------- -------
in respect of such indemnification shall be limited to an amount equal to the
net proceeds actually received by the Company or the Executive from the sale of
such shares effected pursuant to such registration. The indemnifications set
forth herein shall be in addition to any liability the Company or the Executive
may otherwise have to the Indemnified Persons. Promptly after actually receiving
definitive notice of any claim in respect of which an Indemnified Person may
seek indemnification under this Section 19(f), such Indemnified Person shall
submit written notice thereof to either the Company or the Executive, as the
case may be (sometimes being hereinafter referred to as an "Indemnifying
Person"). The omission of the Indemnified Person so to notify the Indemnifying
Person of any such claim shall not relieve the Indemnifying Person from any
liability it may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the Indemnifying
Person to reduce such liability was materially adversely affected by such
omission. In addition, the omission of the Indemnified Person to notify the
Indemnifying Person of any such claim shall not relieve the Indemnifying Person
from any liability it may have otherwise than hereunder. The Indemnifying Person
shall have the right to undertake, by counsel or representatives of its own
choosing, the defense, compromise or settlement (without admitting liability of
the Indemnified Person) of any such
14
claim asserted, such defense, compromise or settlement to be undertaken at the
expense and risk of the Indemnifying Person, and the Indemnified Person shall
have the right to engage separate counsel, at its own expense, whom counsel for
the Indemnifying Person shall keep informed and consult with in a reasonable
manner. In the event the Indemnifying Person shall elect not to undertake such
defense by its own representatives, the Indemnifying Person shall give prompt
written notice of such election to the Indemnified Person, and the Indemnified
Person shall undertake the defense, compromise or settlement (without admitting
liability of the Indemnified Person) thereof on behalf of and for the account
and risk of the Indemnifying Person by counsel or other representatives designed
by the Indemnified Person. In the event that any claim shall arise out of a
transaction or cover any period or periods wherein the Company and the Executive
shall each be liable hereunder for part of the liability or obligation arising
therefrom, then the parties shall, each choosing its own counsel and bearing its
own expenses, defend such claim, and no settlement or compromise of such claim
may be made without the joint consent or approval of the Company and the
Executive. Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement or any claim if
such settlement is effected without the consent of such Indemnifying Person
(which consent shall not be unreasonably withheld).
20. Definitions. For purposes of this Agreement, the following terms
-----------
shall have the following meanings:
a. "Accrued Compensation" shall mean an amount which shall include
all amounts earned or accrued through the Termination Date but not paid as of
the Termination Date including (i) base salary, (ii) reimbursement for
reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, and (iii) bonuses and
incentive compensation (other than the Pro Rata Bonus).
b. "Act" shall mean the Securities Act of 1933, as amended.
c. "Adequate Justification" shall mean the occurrence after a Change
in Control of any of the following events or conditions: (i) a material failure
of the Company to comply with the terms of this Agreement; (ii) any relocation
of the Executive outside the metropolitan area where the Company's principal
executive office is located that is not approved by members of the Incumbent
Board (as such term is defined under Section 20(j)); or (iii) other than as
provided for herein, the removal of the Executive from the position of Chief
Executive Officer or any other substantial diminution in the Executive's
authority or the Executive's responsibilities that is not approved by members of
the Incumbent Board.
d. "Base Amount" shall mean the greater of the Executive's annual
base salary (i) at the rate in effect on the Termination Date or (ii) at the
highest rate in effect at any time during the 90-day period prior to the Change
in Control, and shall include all amounts of his base salary that are deferred
under the qualified and non-qualified employee benefit plans of the Company or
any other agreement or arrangement.
e. "Board" shall have the meaning set forth in the recitals.
15
f. "Bonus Amount" shall mean the greater of (i) the most recent
annual bonus paid or payable to the Executive, or, if greater, the annual bonus
paid or payable for the full fiscal year ended prior to the fiscal year during
which a Change in Control occurred or (ii) the average of the annual bonuses
paid or payable during the three full fiscal years ended prior to the
Termination Date or, if greater, the three full fiscal years ended prior to the
Change in Control (or, in each case, such lesser period for which annual bonuses
were paid or payable to the Executive).
g. "Business" shall mean the design, development, marketing and
implementation of electronic commerce products and services for community
financial institutions.
h. "Bylaws" shall mean the Amended and Restated Bylaws of the
Company, as amended, supplemented or otherwise modified from time to time.
i. "Cause" shall mean the result of:
(i) any act that (X) constitutes, on the part of the Executive,
fraud, dishonesty, or gross malfeasance of duty, and (Y) is
demonstrably likely to lead to material injury to the Company or
resulted or was intended to result in direct or indirect gain to or
personal enrichment of the Executive; provided, however, that such
-------- -------
conduct shall not constitute Cause:
(A) unless (1) there shall have been delivered to the
Executive a written notice setting forth with specificity the
reasons that the Board believes the Executive's conduct
constitutes the criteria set forth in clause (i), (2) the
Executive shall have been provided the opportunity, if such
behavior is susceptible to cure, to cure the specific
inappropriate behavior within 30 days following written notice,
(3) after such 30-day period, the Board of Directors determines
that the behavior has not been cured, and (4) the termination is
evidenced by a resolution adopted in good faith by two-thirds of
the members of the Board (other than the Executive); or
(B) if such conduct (1) was believed by the Executive in
good faith to have been in or not opposed to the interests of the
Company, and (2) was not intended to and did not result in the
direct or indirect gain to or personal enrichment of the
Executive; or
(ii) the conviction (from which no appeal may be or is timely
taken) of the Executive of a felony.
j. A "Change in Control" shall mean the occurrence during the Term
of any the following events:
16
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934 (the "1934 Act"))
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of 20% or
more of the combined voting power of the Company's then outstanding
Voting Securities; provided, however, that in determining whether a
-------- -------
Change in Control has occurred, Voting Securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (1) an employee
benefit plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is owned
directly or indirectly by the Company (a "Subsidiary"), (2) the
Company or any Subsidiary, or (3) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(ii) The individuals who, as of the date of the Initial Public
Offering, are members of the Board (the "Incumbent Board") cease for
any reason to constitute at least two-thirds of the Board; provided,
--------
however, that if the election, or nomination for election by the
-------
Company's stockholders, of any new director was approved by a vote of
at least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Agreement, be considered as a member of the
Incumbent Board; provided, further, however, that no individual shall
-------- ------- -------
be considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
0000 Xxx) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
(A) A merger, consolidation or reorganization involving the
Company, unless
(1) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger,
consolidation or reorganization, at least two-thirds of the
combined voting power of the outstanding voting securities
of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their
ownership of the Voting Securities immediately before such
merger, consolidation or reorganization, and
17
(2) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board
of directors of the Surviving Corporation.
(A transaction described in clauses (1) and (2) shall
herein be referred to as a "Non-Control Transaction").
(B) A complete liquidation or dissolution of the Company;
or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary).
(iv) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated prior to a
Change in Control and the Executive reasonably demonstrates that such
termination (A) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change
in Control and who effectuates a Change in Control (a "Third Party")
or (B) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then for all purposes of this
Agreement, the date of a Change in Control with respect to the
Executive shall mean the date immediately prior to the date of such
termination of the Executive's employment.
k. "Compensation Committee" shall mean the compensation committee of
the Board.
l. "Competing Business" shall mean any business that, in whole or in
part, is the same or substantially the same as the Business.
m. "Confidential Business Information" shall have the meaning
ascribed to it in Section 5(b).
n. "Continuation Period" shall have the meaning ascribed to it in
Section 4(c)(iii).
o. "Disability" shall mean the inability of the Executive to perform
substantially all of his current duties as required hereunder for a continuous
period of 90 days because of mental or physical condition, illness or injury.
p. "Effective Date" shall mean January 30, 1998.
18
q. "Fair Market Value" shall have the meaning ascribed to it in
Section 4(e).
r. "Initial Public Offering" shall mean the closing of the first
public offering of the Company's common stock registered under the Act in which
aggregate proceeds to the Company, net of all underwriting discounts and
commissions and other expenses of issuance and distribution as stated in the
prospectus relating to such offering, are equal to at least twelve million
dollars ($12,000,000).
s. "Notice of Termination" shall mean a written notice of
termination from the Company or the Executive which specifies an effective date
of termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
t. "Plan" shall mean The InterCept Group, Inc. Amended and Restated
1996 Stock Option Plan effective as of November 12, 1996.
u. "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in the
fiscal year through the Termination Date and the denominator of which is 365.
v. "Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.
w. "Termination Date" shall mean, in the case of the Executive's
death, his date of death, and in all other cases, the date specified in the
Notice of Termination.
x. "Trade Secrets" shall have the meaning ascribed to it in Section
5(a).
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its officers thereunto duly authorized,
and the Executive has signed and sealed this Agreement, effective as of the date
first above written.
[End of page]
19
THE INTERCEPT GROUP, INC.
ATTEST:
By:/s/ Xxxxx Xxxxxx By:/s/ Xxxxx X. Xxxxxxx
------------------------- ---------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
----------------------- ------------------------
Title: Assistant Secretary Title: President
---------------------- ------------------------
(CORPORATE SEAL)
EXECUTIVE
/s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
