Internet Capital Group Inc. Contracts
Sample Business Contracts
Employment Agreement - Internet Capital Group Inc. and Edward H. West
Employment Forms
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February 25, 2003
Mr. Edward H. West
ICG Commerce
610 Old York Road
Jenkintown, PA 19046
Dear Ed,
Internet Capital Group ("ICG") is pleased that you have accepted the position of
Chief Executive Officer of ICG Commerce ("ICGC"), one of our most important
partner companies. We are confident that the experience, talents, and leadership
you bring to this position will be a significant factor in the success of ICGC,
benefiting all stakeholders, including ICG.
To recognize your contributions to ICG and to motivate you to accept the
position of CEO with ICGC, ICG hereby agrees to provide the following package of
termination benefits subject to certain terms and conditions noted below,
including your execution of this letter agreement and the release attached
hereto and incorporated herein by reference (the "Release"):
- EMPLOYMENT STATUS - Your status as a regular employee of ICG has
terminated effective January 1, 2003. You agree that such termination
was by mutual agreement and not by ICG and not by you for Good Reason
(as such term is defined in the Severance and Change in Control
Agreement dated January 1, 2002 between you and ICG (the "Employment
Agreement")) and that, therefore, you are not entitled to any severance
as a result of such termination.
- ICG RESTRICTED SHARES - You received as of your date of termination
accelerated full vesting of all unvested ICG restricted shares
(750,000) you have previously been granted.
- ICG STOCK OPTIONS - All ICG stock options previously granted to you
that as of your termination date are either 1) unvested or 2) vested
with an exercise price greater than $3.04 have been or will be
cancelled. Therefore, you will retain the right to exercise the
following fully vested stock options according to the terms of the
grant and the period to exercise provision noted below:
- 200,000 stock options granted on December 21, 2000 with
an exercise price of $3.0312
- 312,500 stock options granted on April 23, 2001 with an
exercise price of $2.09
- 265,625 stock options granted on July 25, 2001 with an
exercise price of $1.40
- PERIOD TO EXERCISE VESTED AND RETAINED STOCK OPTIONS - The period to
exercise vested and retained stock options noted above will be extended
so as to terminate on December 31, 2006.
- 2002 ANNUAL BONUS -ICG has paid you $300,000 under the ICG 2002 Annual
Bonus Plan less required tax withholdings and other deductions
authorized by you.
- REEMPLOYMENT - ICG shall have no obligation to re-employ you.
- RESTRICTIVE COVENANT - You agree that Sections 1, 8, 9, 14 and 18 of
the Employment Agreement and the Restrictive Covenant Agreement between
you and ICG, as amended by the Employment Agreement shall remain in
full force and effect during the term of your employment with ICGC or
any of its affiliates as if you
<PAGE>
were still an ICG employee during such period provided that your
services for ICGC (or any successor following a Change in Control, as
defined in the ICGC Employee Liquidity Plan) shall not constitute a
breach of any covenant not to compete.
- EMPLOYMENT AGREEMENT - Except as set forth in the preceding paragraph,
the Employment Agreement is hereby terminated as of January 1, 2003.
- NO MITIGATION - You shall not be required to mitigate the amount of any
payment provided for in this letter 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 you in any
subsequent employment.
- PLANS AND BENEFITS - You are entitled to all benefits under the ICG
retirement, welfare benefit and perquisite plans in which you
participated that were accrued as of the date of your termination and
to all reimbursable expenses that were incurred on or prior to the date
of your termination, in each case only to the extent that such benefits
or expenses have not yet been paid by ICG.
- GROSS-UP PAYMENT - In the event of a Change in Control (as such term is
defined in the Employment Agreement) occurs on or prior to January 22,
2004 and it is finally determined that any payment or distribution by
ICG to you or for your benefit paid or payable or distributed or
distributable pursuant to the terms of this letter agreement (the
"Payment"), would constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Coe of 1986, as amended
(the "Code"), you shall be paid an additional amount (the "Gross-Up
Payment") such that the net amount retained by you after deduction of
any excise tax imposed under Section 4999 of the Code, and any federal,
state and local income and employment tax and excise tax imposed upon
the Gross-Up Payment shall be in an amount such that you will be in the
same after-tax position as if no excise tax under the Code had been
imposed. In the event that the after-tax benefit would not meet this
threshold the Payment will be reduced in such amount as is reasonably
deemed necessary by ICG so that no excise ax is imposed. For purposes
of determining the amount of the Gross-Up Payment, you shall be deemed
to pay federal income tax and employment taxes a the highest marginal
rate of federal income and employment taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and
locality of your current residence, net of the maximum reduction in
federal income taxes that may be obtained from the deduction of such
state and local taxes. All determinations to be made under this section
shall be made by a nationally recognized independent public accountant
selected by ICG (which may be ICG's auditors) (the "Accounting Firm"),
which firm shall provide its determinations and any supporting
calculations both to ICG and you within ten days of the Change of
Control. Any such determination by the Accounting Firm shall be binding
on ICG and you for purposes of any dispute between the parties hereto.
All fees and expenses of the Accounting Firm in performing the
determinations referred to above shall be borne solely by ICG. As a
result of uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm, it is
possible that the Gross-Up Payment made will have been an amount less
than ICG should have paid pursuant to this section (the "underpayment")
or an amount greater than ICG should have paid pursuant to this section
(the "Overpayment"). In the event that it is finally determined that an
Underpayment exists and you are required to make a payment of any
excise tax or related to, the Gross-Up Payment shall be adjusted
accordingly and the shortfall shall be promptly paid by ICG to you or
for your benefit. In the event that it is finally determined that an
Overpayment exists and ICG paid a Gross-Up Payment to you in excess of
the amount of the Gross-Up Payment to which you are actually entitled
to hereunder, such excess shall promptly be reimbursed by you to ICG.
ICG agrees to indemnify and hold harmless the Accounting Firm of and
from any and all claims, damages and expenses resulting from or
relating to its determinations pursuant to this section, except for
claims, damages or expenses resulting from the gross negligence or
willful misconduct of the Accounting Firm.
- INDEMNIFICATION - You shall be indemnified with respect to actions
taken while serving as ICG's Chief Financial Officer, President and
Chief Operating Officer to the same extent and in the same manner as
other senior executive of ICG.
- SUCCESSOR COMPANY - ICG shall require any successor or successors
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
ICG, to assume ICG's obligations under this letter agreement.
<PAGE>
- CONDITIONS AND RELIANCE - These benefits are expressly conditioned upon
your execution of the Release and this letter agreement. You
acknowledge that any of the consideration described herein that has
been provided to you prior to the date hereof has been provided in
reliance on your agreement to execute and comply with each of this
letter agreement and the Release.
- NO OTHER OBLIGATIONS - Except as set forth herein, it is expressly
agreed and understood by you that ICG does not have, and will not have,
any obligation to provide you at any time in the future with any
payments, benefits or consideration.
ICG appreciates the dedication, many contributions, and hard work you have
demonstrated since you joined us. We have confidence in your leadership of ICGC
and believe that this agreement will provide you the financial protection and
rewards for driving the successes of both ICGC and ICG.
If the foregoing terms are acceptable to you, please sign below and return a
copy of this letter to me.
Sincerely,
/s/ Walter W. Buckley
---------------------
Walter Buckley
Chairman and Chief Executive Officer
Accepted and agreed this 27th day of April, 2003.
/s/ Edward H. West
------------------
Edward H. West
<PAGE>
Release
THIS RELEASE (this "Release") is made as of this 23rd day of January,
2003, by and between Internet Capital Group, Inc. (the "Company") and Edward H.
West ("Executive").
WHEREAS, Executive and the Company entered into that certain Severance
and Change in Control Agreement, dated January 1, 2002; and
WHEREAS, Executive has voluntarily resigned and terminated his
employment with the Company;
NOW, THEREFORE, in consideration of the payments and other benefits
provided or to be provided to Executive pursuant to the attached letter
agreement between the Company and Executive dated January 23, 2003, which is
incorporated herein by reference (the "Letter Agreement") the parties, intending
to be legally bound, hereby agree as follows:
1. Executive, intending to be legally bound, does hereby
REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates,
subsidiaries, parents, joint ventures, and its and their respective
officers, directors, shareholders, employees, and agents, and its and
their respective successors and assigns, heirs, executors, and
administrators (collectively, "Releasees") from all causes of action,
suits, debts, claims and demands whatsoever in law or in equity,
absolute or contingent, known or unknown, which Executive ever had, now
has, or hereafter may have, or which his heirs, executors, or
administrators may have, by reason of any matter, cause or thing
whatsoever, from the beginning of time up to and including the date of
this Release, and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to his
employment relationship with Company, the terms and conditions of that
employment relationship, and the termination of that employment
relationship, including, but not limited to, any claims arising under
the Age Discrimination in Employment Act ("ADEA"), as amended, 29
U.S.C. Section 621 et seq., Title VII of The Civil Rights Act of 1964,
as amended, 42 U.S.C. Section 2000e et seq., the Americans with
Disabilities Act, 42 U.S.C. Section 12101 et seq., the Family and
Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. Section 2601 et seq., the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.
Section 1001 et seq., Pennsylvania Human Relations Act, and any other
claims under any federal, state or local common law, statutory, or
regulatory provision, now or hereafter recognized, and any claims for
attorneys' fees and costs but not including such claims to payments,
benefits and other rights provided Executive pursuant to the Letter
Agreement. This Release is effective without regard to the legal nature
of the claims raised and without regard to whether any such claims are
based upon tort, equity, implied or express contract or discrimination
of any sort. Except as specifically provided herein, it is expressly
understood and agreed that this Release shall operate as a clear and
unequivocal waiver by Employee of any claim for accrued or unpaid
wages, benefits or any other type of payment.
2. Executive further agrees and recognizes that he has
permanently and irrevocably severed his employment relationship with
the Company, that he shall not seek employment with the Company or any
affiliated entity other than ICG Commerce at any time in the future,
and that the Company has no obligation to employ him in the future.
3. Executive represents that he does not have in his
possession any records and business documents, whether on computer or
hard copy, and other materials (including but not limited to computer
disks and tapes, computer programs and software, office keys,
correspondence, files, customer lists, technical information, customer
information, pricing information, business strategies and plans, sales
records and all copies thereof) (collectively, the "Corporate Records")
provided by the Company and/or its predecessors, subsidiaries or
affiliates or obtained as a result of his prior
<PAGE>
employment with the Company and/or its predecessors, subsidiaries or
affiliates, or created by Executive while employed by or rendering
services to the Company and/or its predecessors, subsidiaries or
affiliates except as required to fulfill his duties as CEO of ICG
Commerce. Executive acknowledges that all such Corporate Records are
the property of the Company. In addition, Executive shall promptly
return in good condition any and all beepers, credit cards, cellular
telephone equipment and business cards supplied by the Company. As of
the date of Executive's termination of employment, the Company will
make arrangements to remove, terminate or transfer any and all business
communication lines including network access, cellular phone, fax line
and other business numbers.
4. The parties agree and acknowledge that this Release,
and the settlement and termination of any asserted or unasserted claims
against the Releasees pursuant to this Release, are not and shall not
be construed to be an admission of any violation of any federal, state
or local statute or regulation, or of any duty owed by any of the
Releasees to Executive.
5. Executive certifies and acknowledges as follows:
(a) That he has read the terms of this Release, and that
he understands its terms and effects, including the fact that he has
agreed to RELEASE AND FOREVER DISCHARGE all Releasees from any legal
action or other liability of any type related in any way to the matters
released pursuant to this Release;
(b) That he has signed this Release voluntarily and
knowingly in exchange for the consideration described herein, which he
acknowledges is adequate and satisfactory to him and which he
acknowledges is in addition to any other benefits to which he is
otherwise entitled;
(c) That he has been and is hereby advised in writing to
consult with an attorney prior to signing this Release;
(d) That he does not waive rights or claims that may
arise after the date this Release is executed;
(e) That the Company has provided him with a period of
twenty-one (21) days within which to consider this Release, and that
Executive has signed on the date indicated below after concluding that
this Release is satisfactory to him.
6. This Release will be governed by and construed
according to the laws of the Commonwealth of Pennsylvania. This Release
is the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all
prior discussions between us, other than any existing restrictive
covenant agreement between the Company and Executive and the Letter
Agreement. No waiver by the Company of any right under this Release
shall be construed as a waiver of any other right. No modification of
or amendment to this Release, nor any waiver of any rights under this
Release, will be effective unless in writing and signed by the party to
be charged.
<PAGE>
IN WITNESS WHEREOF Executive and the Company have executed this Release as of
the date set forth above.
Witness: /s/ Michael J. Shim
-------------------
/s/ Edward H. West Michael J. Shim
------------------
Edward H. West
INTERNET CAPITAL GROUP, INC.
By: /s/ Walter W. Buckley, III Witness: /s/ Luann M. Taiariol
-------------------------- ---------------------
Name: Walter W. Buckley, III Luann M. Taiariol
Title: Chief Executive Officer