EXHIBIT 10.33
PROMISSORY NOTE
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$ ___________ May 5, 1999
FOR VALUE RECEIVED, ____________, ("Borrower"), hereby promises to pay
to the order of INTERNET CAPITAL GROUP, INC., a Delaware corporation ("Holder"),
the principal sum _________________________________($___________) (the
"Principal Amount" as adjusted from time to time in accordance with the terms
hereof), on May , 2004, together with interest accrued thereon through the
date of payment; provided, however, (i) upon the sale, by the undersigned, of
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less than all the shares of Common Stock, par value $0.001 per share, of Holder
(the "Common Stock") purchased by the undersigned on the date hereof, the
undersigned shall be required to make a principal payment, together with
interest accrued thereon, equal to (x) multiplied by (y) where (x) is the
Principal Amount and (y) is (A) the number of shares of Common Stock sold by the
undersigned divided by (B) the total number of shares of Common Stock which are
purchased by the undersigned on the date hereof, (ii) upon the sale, by the
undersigned, of all the shares of Common Stock which are purchased by the
undersigned on the date hereof, the Principal Amount, together with interest
accrued thereon, shall become due and payable, and the undersigned shall pay
such Principal Amount, together with interest accrued thereon, to the Holder,
(iii) 90 days after termination of the Borrower's employment with the Holder or
its affiliates, for any reason, or (iv) upon a good faith determination by the
Board of Directors of the Holder that the Borrower has violated one or more of
the terms or conditions of the Restrictive Covenant Agreement between the Holder
and the Borrower, a copy of which is attached hereto as Exhibit A, the Principal
Amount, together with interest accrued thereon, shall become due and payable,
and the undersigned shall pay such Principal Amount, together with interest
accrued thereon, to the Holder.
The Borrower shall pay to the Holder hereof interest from 30 days
after the date hereof on the outstanding principal balance hereunder at the rate
of 5.22 percent (5.22%) per annum. Interest shall be calculated on the basis of
a 365-day year for the actual number of days elapsed and shall be payable on the
last day of each Yearly Period (as hereinafter defined) during the term hereof.
To the extent that interest for any Yearly Period or portion thereof is not paid
on the last day of such Yearly Period, such interest shall become part of the
Principal Amount effective such last day of such Yearly Period. As used herein,
the term "Yearly Period" means each successive twelve-month period, beginning on
the date hereof and ending on the first anniversary of the date hereof and
continuing to each successive anniversary thereafter, during which the Principal
Amount remains outstanding.
Payment shall be made at such place as the Holder may designate. All
payments hereunder shall be made in immediately available funds in lawful money
of the United States of America.
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This Promissory Note represents a full recourse obligation of the
Borrower. If for any reason the Borrower fails to pay the full amount due
hereunder, the Borrower's maximum personal liability shall be an amount equal to
100% of the Principal Amount.
Without limiting the generality of the foregoing, the Borrower hereby
pledges to the Holder __________ shares of Common Stock of the Company acquired
by the Borrower pursuant to the Internet Capital Group, Inc. 1999 Equity
Compensation Plan on the date hereof to secure the satisfaction by Borrower of
all its obligations to the Holder under this Promissory Note. All applicable
provisions of the Uniform Commercial Code shall apply to and be deemed to govern
this pledge. Concurrently with the delivery of this Promissory Note to the
Holder, the Borrower has delivered to the Holder the certificates representing
the shares of Common Stock pledged hereby, together with a stock power therefor
duly executed by the Borrower in blank.
All or any portion of the Principal Amount evidenced by this
Promissory Note may be prepaid at any time without premium or penalty.
Except as set forth in the next sentence, the obligations of the
Borrower and the rights of the Holder under this Promissory Note shall be
absolute and shall not be subject to any counterclaim, set-off, deduction or
defense. Notwithstanding anything to the contrary contained herein, Holder
shall be entitled to apply one hundred percent (100%), or such lower percentage
as determined by the Holder, of the amount of any and all bonus payments, net of
applicable taxes and withholdings in accordance with Borrower's applicable
employee benefit plans, awarded by the Holder or its affiliates to the Borrower,
to reduce the aggregate amount of the outstanding principal and accrued and
unpaid interest thereon due under this Promissory Note.
The Borrower hereby acknowledges that, as a condition of receipt of
the value provided by the Holder referenced above and in partial consideration
therefore, the Holder has on the date hereof, executed a Restrictive Covenant
Agreement between the Holder and the Borrower, a copy of which is attached
hereto as Exhibit A.
The Borrower hereby waives presentment, notice of dishonor and protest
in respect hereof.
In the event of default under this Promissory Note, the Holder shall
have all rights and remedies provided at law and in equity. All costs and
expenses of collection, including attorneys' fees, shall be added to and become
part of the Principal Amount of this Promissory Note and shall be collectible as
part of such Principal Amount.
No interest or other amount shall be payable in excess of the maximum
permissible rate under applicable law and any interest or other amount which is
paid in excess of such maximum rate shall be deemed to be a payment of principal
hereunder.
This Promissory Note may not be changed, modified or terminated
orally, but only by an agreement in writing signed by the party sought to be
charged.
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This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the principles
of conflict of laws thereof. If any term or provision of the Promissory Note
shall be held invalid, illegal or unenforceable, the validity of all other terms
and provisions hereof shall in no way be affected thereby.
This Promissory Note shall be binding upon the successors and assigns
of the Borrower and shall inure to the benefit of the Holder and its successors
and assigns.
_______________________________
[Name]
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