EXHIBIT 10.3
INTERNET COMMERCE CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
Name of Recipient: Number of Shares:
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Award Date: Vesting Start Date:
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THIS AGREEMENT (the "Agreement") is made and entered into as of the
Award Date noted above, by and between Internet Commerce Corporation (the
"Company"), a Delaware corporation, and the individual noted above (the
"Recipient").
WITNESSETH:
WHEREAS, the Company has adopted the Internet Commerce Corporation 2005
Stock Incentive Plan (the "Plan") for the purpose of securing and retaining the
services of officers, directors, key employees, and consultants of the Company,
and providing incentive to those who are primarily responsible for the
operations of the Company to shape and carry out the long-range plans of the
Company and aiding in its continued growth and financial success; and
WHEREAS, the Plan achieves such goals by providing the opportunity to
receive compensation which is based upon appreciation in the value of the shares
of the common stock, [par value $.01] ("Common Stock"), of the Company;
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Committee") has authorized the grant to the Recipient of a
restricted stock award for shares of the Common Stock under the Plan, and the
Company and the Recipient wish to confirm herein the terms, conditions, and
restrictions of the restricted stock award;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
agree:
SECTION 1
AWARD OF SHARES
1.1 Award of Shares. Subject to the terms, restrictions, limitations,
and conditions stated herein and in the Plan, the Company hereby awards to the
Recipient the number of shares of Common Stock set forth at the beginning of
this Agreement in the box labeled "Number of Shares" (the "Award Shares") under
the Plan.
1.2 Vesting of Award Shares. Recipient shall become vested in the Award
Shares (after such vesting, "Vested Shares") as follows based upon the
Continuous Service (as defined below)
of the Recipient from the Vesting Start Date (as specified at the beginning of
this Agreement) to the date of determination:
<Table>
<Caption>
VESTING SCHEDULE:
- --------------------------------------------------------------------------------
CONTINUOUS SERVICE FROM VESTING START DATE: PERCENTAGE VESTED:
- ------------------------------------------- ------------------
</Table>
For purposes of this Restricted Stock Award Agreement, "Continuous Service"
means a period of continuous performance of services by the Recipient for the
Company, a parent, or a subsidiary, as determined by the Committee in its sole
and absolute discretion.
Notwithstanding the preceding provisions, the Committee may, in its sole
discretion, accelerate the vesting of the Shares in whole or in part. The Award
Shares that have become vested pursuant to the above provisions are herein
referred to as the "Vested Award Shares" and all Award Shares that are not
Vested Award Shares are sometimes herein referred to as the "Unvested Award
Shares." RECIPIENT ACKNOWLEDGES AND AGREES THAT HE HAS BEEN FULLY ADVISED TO
CONSULT WITH HIS OWN TAX CONSULTANTS REGARDING THE APPLICABILITY OF HIS MAKING A
CODE SECTION 83(B) ELECTION WITH RESPECT TO THE AWARD SHARES.
1.3 Additional Condition to Award Shares. If the Recipient has received
this grant in respect of the Recipient's employment by the Company, in order to
not forfeit the Award Shares, the Recipient must deliver to the Company, within
the ten-day period (the "Withholding Period") commencing on the date of
occurrence of an event pursuant to which some or all of the Award Shares become
"substantially vested" within the meaning of Section 83 of the Code either a
certified check payable to the Company in the amount of all withholding or other
tax obligations (whether federal, state or local) imposed on the Company by
reason of the vesting of the Award Shares, or the Withholding Election described
in Section 1.4. Upon receipt of payment in full of all withholding tax
obligations, the Company shall cause a certificate representing the Award Shares
that are the Vested Award Shares to be issued and delivered to the Share
Custodian pursuant to the instructions of the Recipient as provided in Section
1.5.
1.4 Optional Withholding Election. In lieu of paying the withholding
tax obligation in cash, as described in Section 1.3, the Recipient may elect to
have the actual number of Vested Award Shares reduced by the smallest number of
whole shares of Common Stock that, when multiplied by the fair market value of
the Common Stock on the Vesting Date as determined by the Committee, is
sufficient to satisfy the amount of the withholding tax obligations imposed on
the Company by reason of the vesting of the Award Shares (the "Withholding
Election"). The Recipient may make a Withholding Election only if all of the
following conditions are met:
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(a) the Withholding Election must be made on or prior to the
end of the Withholding Period by executing and delivering to the
Company a properly completed Notice of Withholding Election, in
substantially the form of EXHIBIT A attached hereto;
(b) any Withholding Election made will be irrevocable;
however, the Committee may, in its sole discretion, disapprove and give
no effect to any Withholding Election; and
(c) if the Recipient is required to file beneficial ownership
reports pursuant to Subsection (a) of Section 16 of the Securities
Exchange Act of 1934 (the "1934 Act"), at any time during a period in
which some or all of the Award Shares vest, then either (A) the
Withholding Election must be made in a manner which does not create
liability of the Recipient under Section 16 of the 1934 Act or (B) the
Company shall be entitled to withhold the smallest number of whole
shares of Common Stock that, when multiplied by the fair market value
of the Common Stock on the Vesting Date as determined by the Committee,
is sufficient to satisfy such liability; and
(d) If the Recipient is an individual who is, on the relevant
date, subject to the Company's Insider Trading Policy, then a
Withholding Election may only be made to the extent that it does not
violate the Company's Insider Trading Policy.
1.5 Award Shares Held by the Share Custodian. The Recipient hereby
authorizes and directs the Company to deliver any share certificate issued by
the Company to evidence Award Shares to the Secretary of the Company or such
other officer of the Company as may be designated by the Committee (the "Share
Custodian") to be held by the Share Custodian until all of the Award Shares have
become Vested Award Shares, at which time such certificate shall be promptly
delivered to the Recipient. The Recipient hereby irrevocably appoints the Share
Custodian, and any successor thereto, as the true and lawful attorney-in-fact of
the Recipient with full power and authority to execute any stock transfer power
or other instrument necessary to transfer the Award Shares to the Company
pursuant to this Agreement, in the name, place, and stead of the Recipient. The
term of such appointment shall commence on the Award Date and shall continue
until all of the Award Shares have become Vested Award Shares. Notwithstanding
the foregoing, upon request to the Share Custodian, the Recipient shall be
entitled to the release from such custody arrangement and power of attorney of
any Vested Award Shares for which the amounts required to be paid under Sections
1.3 and 1.4 hereof have been paid. In the event the number of shares of Common
Stock is increased or reduced by changing par value, split-up, stock split,
reverse stock split, reclassification, merger, reorganization, consolidation, or
otherwise, and in the event of any distribution of Common Stock or other
securities of the Company in respect of the Common Stock, the Recipient agrees
that any certificate representing shares of Common Stock or other securities of
the Company issued as a result of any of the foregoing with respect to any Award
Shares held by the Share Custodian shall be delivered to the Share Custodian and
shall be subject to all of the provisions of this Agreement as if initially
purchased thereunder.
1.6 Rights as Stockholder. During the period that the Share Custodian
holds the shares of Common Stock, the Recipient shall be entitled to all rights
applicable to shares of Common
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Stock not so held; provided, however, that Recipient shall not be entitled to
dividends on any Unvested Award Shares on the record date for such dividend.
SECTION 2
RESTRICTIONS AND FORFEITURE OF SHARES
2.1 Forfeiture of Unvested Award Shares. If the Recipient ceases to
meet the requirement for Continuous Service for any reason, as determined by the
Committee in its sole and absolute discretion, all Unvested Award Shares shall
be forfeited to the Company, along with any and all rights or subsequent rights
attached thereto, effective immediately.
2.2 Restrictions on Transfer of Unvested Award Shares. Without the
prior written consent of the Committee, the granting of which shall be within
the sole and complete discretion of the Committee, no Unvested Award Share may
be in any manner conveyed, pledged, assigned, transferred, hypothecated,
encumbered, or otherwise disposed of by the Recipient, in whole or in part.
SECTION 3
GENERAL PROVISIONS
3.1 Change in Capitalization. If the number of outstanding shares of
the Common Stock shall be increased or decreased by a change in par value,
split-up, stock split, reverse stock split, reclassification, distribution of
common stock dividend, or other similar capital adjustment, an appropriate
adjustment shall be made by the Committee in the number and kind of Award
Shares, such that the Recipient's proportionate interest shall be maintained as
before the occurrence of the event; provided, however, that no fractional shares
shall be issued in making such adjustment. All adjustments made by the Committee
under this Section shall be final, binding, and conclusive.
3.2 Legends. Each certificate representing any Unvested Award Shares
shall be endorsed with the following legend and the Recipient shall not make any
transfer of the Unvested Award Shares without first complying with the
restrictions on transfer described in such legend:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO FORFEITURE
PROVISIONS AND RESTRICTIONS ON TRANSFER SET FORTH IN A RESTRICTED STOCK
AWARD AGREEMENT PURSUANT TO WHICH THESE SECURITIES WERE ISSUED, A COPY
OF WHICH IS AVAILABLE FROM THE COMPANY.
The Recipient agrees that the Company may also endorse any other legends
required by applicable federal or state securities laws. The Company need not
register a transfer of the Award Shares, and may also instruct its transfer
agent, if any, not to register the transfer of the Award Shares unless the
conditions specified in the foregoing legends are satisfied.
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3.3 Governing Laws. This Agreement shall be construed, administered and
enforced according to the laws of the State of Delaware.
3.4 Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors, and permitted assigns
of the parties.
3.5 Notice. Except as otherwise specified herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given if personally delivered or if sent by registered or certified
United States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
3.6 Severability. In the event that any one or more of the provisions
or portion thereof contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, the same shall not
invalidate or otherwise affect any other provisions of this Agreement, and this
Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.
3.7 Entire Agreement. Subject to the terms and conditions of the Plan,
this Agreement expresses the entire understanding and agreement of the parties
with respect to the subject matter. Capitalized terms used in this Agreement
without definition shall have the meanings given to them in the Plan. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
3.8 Violation. Any transfer, pledge, sale, assignment, or hypothecation
of the Award Shares or any portion thereof in contravention of this Agreement
shall be a violation of the terms of this Agreement and shall be null, void and
without effect ab initio.
3.9 Headings. Paragraph headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement.
3.10 Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
3.11 No Employment or Service Rights Created. Neither the establishment
of the Plan nor the award of Award Shares hereunder shall be construed as giving
the Recipient the right to continued employment or service in any capacity with
the Company.
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IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
to be effective as of the Award Date noted above.
INTERNET COMMERCE CORPORATION RECIPIENT:
By:
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Title:
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ATTEST:
By:
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Title:
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EXHIBIT A
INTERNET COMMERCE CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
Notice of Withholding Election
TO: Internet Commerce Corporation
FROM:
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RE: Withholding Election
This election relates to the Restricted Stock Award identified in
Paragraph 3 below and is made pursuant to Section 1.4 thereof. I hereby certify
that:
(1) My correct name and social security number and my current
address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Restricted Stock Award.
[ ] the legal representative of the estate of the
original recipient of the Restricted Stock Award.
[ ] a legatee of the original recipient of the Restricted
Stock Award.
[ ] the legal guardian of the original recipient of the
Restricted Stock Award.
(3) The Restricted Stock Award pursuant to which this election is
made is dated and was issued under the Internet Commerce
Corporation 2005 Stock Incentive Plan (the "Plan") in the name
of ____________________ for ____________ shares of Common
Stock. This election relates to _________________ shares of
Common Stock issuable upon vesting of the Award Shares,
provided that the numbers set forth above shall be deemed
changed as appropriate to reflect stock splits and other
adjustments contemplated by the applicable Plan provisions.
(4) In connection with any future vesting of the Restricted Stock
Award with respect to the Award Shares, I hereby elect to have
certain of the shares issuable pursuant to the exercise
withheld by the Company for the purpose
of having the value of the shares applied to pay federal,
state, and local, if any, taxes arising from the exercise. The
shares to be withheld shall have, as of the Tax Date
applicable to the exercise, a fair market value equal to the
minimum statutory tax withholding requirement under federal,
state, and local law in connection with the exercise.
(5) This Withholding Election is made prior to the Tax Date and is
otherwise properly made pursuant to Section 1.4 of the Plan.
(6) I understand that this Withholding Election may not be
revised, amended or revoked by me but is subject to the
disapproval of the Committee.
(7) I further understand that, if this Withholding Election is not
disapproved by the Committee, the Company shall withhold from
the Vested Award Shares a number of shares of Common Stock
having the value specified in Paragraph 4 above.
(8) The Plan has been made available to me by the Company, I have
read and understand the Plan and I have no reason to believe
that any of the conditions therein to the making of this
Withholding Election have not been met. Capitalized terms used
in this Notice of Withholding Election without definition
shall have the meanings given to them in the Plan.
Dated:
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Signature
Taxpayer Identification (Social Security)
Number:
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Printed Name:
Address:
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