As filed with the Securities and Exchange Commission on October 22, 1999
Registration No. ______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNET COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3645702
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
805 Third Avenue
New York, New York 10022
(212) 271-7640
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive office)
RICHARD J. BERMAN
Chairman of the Board of Directors
INTERNET COMMERCE CORPORATION
805 Third Avenue
New York, New York 10022
(212) 271-7640
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
PETER S. KOLEVZON, ESQ.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022-3903
(212) 715-9100
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Approximate date of commencement of proposed sale to the public: at
such time or times after the effective date of this Registration Statement as
the selling stockholders may determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reimbursement plans, check the following box. |X|
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of each class Amount Proposed Proposed maximum Amount
of securities to be to be maximum offering aggregate offering of registration
registered registered price per share price (1) fee (1)
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<S> <C> <C> <C> <C>
Class A Common Stock 22,000 $11.25 $247,500 $68.81
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(1) The proposed maximum aggregate offering price has been estimated solely to
calculate the registration fee under Rule 457(c) of the Securities Act, based
upon the average of the highest and lowest prices per share of the class A
common stock on The Nasdaq SmallCap Market reported on October 20, 1999.
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The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION DATED OCTOBER 22, 1999
PROSPECTUS
INTERNET COMMERCE CORPORATION
o This prospectus relates to the public offering from time to time of up
to 22,000 shares of our class A common stock that may be sold by the
persons listed on page 18 below. These person are referred to in this
prospectus as selling stockholders.
o Our common stock is traded on The Nasdaq SmallCap Market under the
symbol ICCSA. On October 20, 1999, the last sale price for the common
stock was $11.13.
o Any selling stockholder may sell the common stock on The Nasdaq
SmallCap Market or in privately negotiated transactions, whenever he
decides and at the price he sets. The price at which any of the shares
of common stock are sold and the commissions paid, if any, may vary
from transaction to transaction.
o This investment involves a high degree of risk. You should carefully
consider the risk factors beginning on page 5 of this prospectus before
you decide to invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is October ___, 1999
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TABLE OF CONTENTS
Page
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Prospectus Summary.......................................................... 3
Risk Factors................................................................ 5
Risks Relating to ICC.................................................... 5
Risks Relating to the Internet and Online Commerce Aspects
of our Business.......................................................... 10
Risks Relating to this Offering.......................................... 11
Forward-Looking Statements.................................................. 13
Use of Proceeds............................................................. 14
Business.................................................................... 14
Selling Stockholders........................................................ 18
Plan of Distribution........................................................ 18
Description of Securities................................................... 20
Legal Matters............................................................... 26
Experts..................................................................... 26
Where You Can Find More Information......................................... 26
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PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in
this prospectus. This summary may not contain all of the information that you
should consider before purchasing shares of our class A common stock. You should
read the entire prospectus carefully, including Risk Factors commencing on page
5, before making an investment decision.
Internet Commerce Corporation, or ICC
Business Description
Our CommerceSense service uses the Internet and our proprietary
technology to deliver our customers' documents and data files to members of
their trading communities, many of which may have incompatible systems, by
translating the documents and data files into any format required by the
receiver. We believe that our CommerceSense service has significant advantages
over traditional value added networks, or VANs, and email-based and other
Internet-based systems, including lower cost, higher level of service, greater
transmission speed and more features.
We use CommerceSense to provide the following services:
o Traditional VAN services -- CommerceSense provides the full
suite of traditional VAN services, but uses the Internet to
provide cost savings and increased capabilities for our
customers;
o EDI for web-based retailers -- CommerceSense provides an
electronic document and data file delivery link between
web-based retailers and their vendors that require that
documents and data files be transmitted using electronic data
interchange, or EDI, format;
o EDI to fax service -- CommerceSense can translate electronic
documents into fax format and send the documents by fax to our
customers' trading partners that cannot receive electronically
transmitted documents; and
o Large-scale electronic document management and delivery --
CommerceSense can transmit large-scale non-EDI electronic
documents and data files and provides real-time delivery,
archiving, security, authentication and audit services.
Business Strategy
We believe that our CommerceSense service provides a platform with many
applications that will allow our customers to integrate a substantial portion of
their document and data file delivery methods into a single, seamless process
with significantly less administrative effort and cost. We intend to continue to
market CommerceSense as a
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one-stop electronic document and data delivery service to the 2,500 largest
companies in the United States and abroad that use EDI to communicate with their
vendors. We believe that the cost and ease of use of our CommerceSense service
will allow these companies to request or encourage their smaller trading
partners to conduct electronic commerce using CommerceSense.
The address of our principle executive office is 805 Third Avenue, New
York, New York 10022. Our telephone number at that address is (212) 271-7640.
The Offering
Class A common stock offered
by the selling stockholders........................................22,000 shares
Class A common stock to be
outstanding after the offering..............................1,879,941 shares (1)
Nasdaq SmallCap Market symbol........................... ..................ICCSA
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(1) This information is based on the number of shares of class A common stock
outstanding on October 20, 1999. It includes all of the shares being offered by
this prospectus by the selling stockholders. It excludes (a) 5,770,775 shares of
class A common stock issuable upon exercise or conversion of warrants, series A
convertible redeemable preferred stock and class B common stock outstanding on
that date and (b) 1,960,000 shares then issuable under outstanding options or
reserved for issuance under our 1994 stock option plan.
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RISK FACTORS
You should carefully consider each of the following risk factors in
addition to the other information contained in this prospectus before purchasing
shares of our class A common stock. Investing in our class A common stock
involves a high degree of risk. Any of the following risks could materially and
adversely affect our business, operating results, financial condition and the
market price of our class A common stock and could result in the complete loss
of your investment.
Risks Relating to ICC
We have a limited operating history and there is insufficient
historical information to determine whether we will successfully implement any
of our business strategies. We were founded as Infosafe Systems, Inc. in
November 1991 and from 1991 to 1997 we conducted limited operations and
developed products that we were unable to exploit commercially and consequently
discontinued. In 1998, we shifted our business emphasis to focus exclusively on
the development and marketing of our CommerceSense service and launched the
current version of our CommerceSense service commercially in April 1999. As a
result, we have only a limited operating history and there is little historical
information on which to evaluate our business and prospects. We may not be
successful in implementing any of our business strategies.
We have never earned a profit and expect to incur significant losses.
We have incurred significant losses since we were founded in 1991. We have never
earned a profit in any fiscal quarter and, as of April 30, 1999, we had an
accumulated deficit of approximately $20.0 million. In their audit report on our
July 31, 1998 financial statements, Richard A. Eisner & Company, LLP questioned
our ability to continue as a going concern. In addition, we expect our cost of
revenue and operating expenses to increase significantly, especially in the
areas of marketing, customer installation and customer service. As a result, we
expect to incur additional losses in the future.
We may not achieve profitability. The profit potential of our business
model is unproven. Our revenue is dependent on the number of customers who
subscribe to our CommerceSense VAN service and the volume of the data, documents
or other information they send or retrieve utilizing this service. The success
of our CommerceSense VAN service and our other proposed services depends to a
large extent on the future business-to-business electronic commerce using the
Internet, which is uncertain. If we experience a shortfall in our estimated
revenue, we may be unable to adjust spending in a timely manner and may not
achieve profitability.
We currently depend primarily on our CommerceSense VAN service and may
not be able to continue to expand into new business areas. We are currently
focusing on our CommerceSense VAN service. As a result, our financial condition
will depend heavily on the success or failure of this service. It is difficult
to predict demand and market acceptance for this service in the new and rapidly
evolving business-to-business electronic commerce
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market. If our CommerceSense VAN service is not successful, our revenue may not
increase sufficiently for us to become profitable.
We are expanding our operations by developing and marketing new and
complementary services using our CommerceSense service as a platform to provide
these additional services or systems. We cannot assure you that we will be able
to continue to do so effectively.
If we are unable to manage our growth, our financial results will
suffer. Our ability to implement our business plan successfully in a new and
rapidly-evolving market requires effective planning and growth management. If we
cannot manage our anticipated growth effectively, our business and financial
results will suffer. We plan to expand our existing operations substantially,
particularly those relating to sales and marketing, customer installation and
technical support. We expect that we will need to continue to manage and to
expand multiple relationships with customers, Internet service providers and
other third parties. We also expect that we will need to continue to improve our
financial systems, procedures and controls and will need to expand, train and
manage our workforce, particularly our information technology staff. We also
intend to expand our services, which may require additional resources and
employees.
We may face capacity constraints which impede our revenue growth and
business profitability. The satisfactory performance, reliability and
availability of our network infrastructure, customer support and document
delivery systems and our web site are critical to our reputation and our ability
to attract customers and maintain adequate customer service levels. Any
significant or prolonged capacity constraints could prevent customers from
sending or gaining access to their documents or other data or accessing our
customer support services for extended periods of time. This would decrease our
ability to acquire and retain customers and prevent us from achieving the
necessary growth in revenue to achieve profitability. If the amount of traffic
increases substantially and we experience capacity constraints, we will need to
expand further and upgrade our technology and network infrastructure. We may be
unable to predict the rate or timing of increases in the use of our services to
enable us to upgrade our operating systems in a timely manner.
If we do not keep pace with rapid technological changes, customer
demands and intense competition, we will not be successful. Our market is
characterized by rapidly changing technology, customer demands and intense
competition. If we cannot keep pace with these changes, our CommerceSense
service could become uncompetitive and our business will suffer. The Internet's
recent growth and the intense competition in our industry require us to continue
to develop strategic business and Internet solutions that enhance and improve
the customer service features, functions and responsiveness of our CommerceSense
VAN and other proposed services and that keep pace with continuing changes in
information technology and customer requirements. If we are not successful in
developing and marketing enhancements to our CommerceSense VAN service or other
proposed services that respond to technological change or customer demands, our
business will suffer.
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If we are unable to obtain necessary future capital, our business will
suffer. As of July 31, 1999, we had cash and marketable securities in the amount
of approximately $4.6 million. We anticipate that we will need to raise
additional funds soon. If we are unable to obtain necessary additional
financing, our business will suffer. We cannot assure you that any additional
financing will be available on reasonable terms or at all. In addition, we may
need to raise additional funds sooner if we attempt to expand more rapidly or if
competitive pressures or technological changes are greater than anticipated.
Even if we are able to obtain additional financing, we will subsequently need to
raise additional funds if we do not become profitable or if achieving
profitability takes longer than we anticipate.
Raising additional funds in the future by issuing securities could
adversely affect our stockholders and negatively impact our operating results.
If we raise additional funds through the issuance of debt securities, the
holders of the debt securities will have a claim to our assets that will have
priority over any claim of our stockholders. The interest on these debt
securities would increase our costs and negatively impact our operating results.
If we raise additional funds through the issuance of class A common stock or
securities convertible into or exchangeable for class A common stock, the
percentage ownership of our then-existing stockholders will decrease and they
may experience additional dilution. In addition, any convertible or exchangeable
securities may have rights, preferences and privileges more favorable to the
holders than those of the class A common stock.
We may not be able to compete effectively in the business-to-business
electronic commerce market, which could limit our market share and harm our
financial performance. The business-to-business electronic commerce industry is
evolving rapidly and is intensely competitive. If we are not able to compete
effectively against our current and future competitors, we may lose customers,
may need to lower our prices, may experience reductions in gross margins,
increases in marketing costs or losses in market share, or may experience a
combination of these problems and, as a result, our business will suffer.
Many of our current and potential competitors have significant existing
customer relationships and vastly larger financial, marketing, customer support,
technical and other resources than we do. As a result, they may be able to
respond more quickly to changes in customer requirements or be able to undertake
more extensive marketing campaigns, adopt more aggressive pricing policies and
make more attractive offers to potential customers and employees, or be able to
devote greater resources to the development, promotion and sale of their
services than we can. As a result, we may not be successful in competing against
our competitors.
Our principal competitors include: Harbinger Corporation, GE
Information Services, Inc., International Business Machines Corporation Global
Services, Sterling Commerce, Inc., AT&T Corp. and MCI Communications
Corporation. Each of these competitors has an established VAN that has provided
EDI for at least several years and has long-established relationships with the
users of EDI, including many of our prospective customers.
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If we are successful in utilizing our CommerceSense platform to provide
new services, we may enter into different markets and may face the same or
additional competitors, most of which will have substantially greater financial
and other resources than we do.
If we cannot successfully expand our business outside of the United
States, our revenues and operating results will be adversely affected. Our
current and future customers are conducting their businesses internationally. As
a result, an important component of our business strategy is to expand our
international marketing and sales efforts. We have limited experience in
expanding our business outside the United States and if we do not successfully
expand our business in this way, we may lose current and future customers. In
addition, our potential new service offerings may involve delivery of data and
use of the Internet in other countries which may currently have or enact laws or
regulations that restrict our ability to deliver data or use the Internet or
that impose significant taxes for doing so. Loss of customers and restrictions
on delivery of data and use of the Internet will adversely affect our revenues
and operating results.
Losing any of our key personnel could cause our revenues to decline. We
are substantially dependent on the continued services and performance of our
executive officers and other key employees. The loss of the services of any of
our executive officers or other key employees could impede the operation and
growth of our business and cause our revenues to decline. Although all of our
executive officers, except Dr. Geoffrey S. Carroll and Richard Blume, and some
key employees have entered into employment agreements, none of these agreements
prevents any of them from leaving us.
If we cannot hire and retain highly qualified employees, our business
and financial results will suffer. We believe we will need to expand
significantly our information technology, marketing and customer service staffs.
Competition for employees in our industry is intense. If we are unable to
attract, assimilate or retain highly qualified employees, our management may not
be able to effectively manage our business, exploit opportunities and respond to
competitive challenges and our business and financial results will suffer. Many
of our competitors may be able to offer more lucrative compensation packages
which include stock options and other stock-based compensation and
higher-profile employment opportunities than we can.
If we are not able to hire and retain independent contractors, our
business will be harmed. We are substantially dependent on the services of
independent contractors to train customers in the use of CommerceSense. We have
entered into three relationships with independent contractors and need to retain
several other providers of these services to achieve our business plan. If we
fail to hire and retain qualified independent contractors, then our business
will be harmed.
We depend on our intellectual property, which may be difficult and
costly to protect. Other than our decryption/logging/branding patent, our
intellectual property consists of proprietary or confidential information that
is not currently subject to patent, trademark or similar protection. Although we
have applied for trademark protection for the CommerceSense name, we may not be
granted this trademark. Even if we are granted this
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trademark, we may not be able to protect it. If our competitors or others adopt
product or service names similar to CommerceSense, it may impede our ability to
build brand identity and customer loyalty. We may need to file lawsuits to
defend the validity of our intellectual property rights and trade secrets, or to
determine the validity and scope of the proprietary rights of others. Litigation
is expensive and time-consuming and could divert management's attention away
from running our business.
The validity, enforceability and scope of protection of some types of
proprietary rights in Internet-related businesses are uncertain and still
evolving. If unauthorized third parties try to copy our service or our business
model or use our confidential information to develop competing services, we may
lose customers and our business could suffer. We may not be able to effectively
police unauthorized use of our technology because policing is difficult and
expensive. In particular, the global nature of the Internet makes it difficult
to control the ultimate destination or security of software or other data
transmitted. The laws of other countries may not adequately protect our
intellectual property.
Intellectual property infringement claims against us could harm our
business. Our business activities and our CommerceSense service may infringe
upon the proprietary rights of others and other parties may assert infringement
claims against us. Any such claims and any resulting litigation could subject us
to significant liability for damages and could result in invalidation of our
proprietary rights. We could be required to enter into costly and burdensome
royalty and licensing agreements, which may not be available on terms acceptable
to us, or may not be available at all.
We may suffer systems failures and business interruptions which would
harm our business. Our success depends in part on the efficient and
uninterrupted operation of our service that is required to accommodate a high
volume of traffic. Almost all of our network operating systems are located at a
single leased facility in New York, New York. Our systems are vulnerable to
events such as damage from fire, power loss, telecommunications failures,
break-ins and earthquakes. This could lead to interruptions or delays in our
service, loss of data or the inability to accept, transmit and confirm customer
documents and data. Our business may suffer if our service is interrupted.
Although we have implemented network security measures, our servers may be
vulnerable to computer viruses, electronic break-ins, attempts by third parties
deliberately to exceed the capacity of our systems and similar disruptions.
Year 2000 issues could affect the performance of our business. We may
have substantial exposure to the year 2000 problem, both with our own systems
and with systems we do not control. The year 2000 problem could harm our
business and financial results. Many currently installed computer systems and
software products have been coded to accept or recognize only two digit entries
to define the applicable year. These systems may erroneously recognize the year
2000 as the year 1900. Thus could result in major failures or malfunctions.
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This risk is particularly significant for our business. We rely on
computer programs and systems in connection with our internal and external
communication networks and systems, including transmissions of information over
the Internet, order processing and fulfillment, accounting and financial
systems, customer access to our web site and other business functions. Based on
our design process and assessment to date, we believe the current versions of
our service and our various systems are year 2000 compliant. However, we cannot
assure you that our programs designed to minimize the impact of the transition
to the year 2000 on the terminal operations software at our facilities and other
date sensitive equipment will be completely successful. In addition, the costs
of implementing these programs may exceed our current estimates. If these
programs are not successful or if their costs exceed our estimates, the date
change from 1999 to 2000 could harm our business. The full extent of any adverse
impact on our business is impossible to determine.
In addition, our customers may not become year 2000 compliant in a
timely fashion or at all. The failure of a customer to become year 2000
compliant will adversely affect the ability of that customer's trading partners
to receive or utilize the document or data we transmit. As a result, customers
that are not year 2000 compliant may cease using our CommerceSense service,
decreasing our revenues and harming our results of operations.
Risks Relating to the Internet and Online Commerce Aspects of Our Business
If Internet usage does not continue to grow or its infrastructure
fails, our business will suffer. If the Internet does not gain increased
acceptance for business-to-business electronic commerce, our business will not
grow or become profitable. We cannot be certain that the infrastructure or
complementary services necessary to maintain the Internet as a useful and easy
means of transferring documents and data will continue to develop. The Internet
infrastructure may not support the demands that growth may place on it and the
performance and reliability of the Internet may decline.
Privacy concerns may prevent customers from using our services.
Concerns about the security of online transactions and the privacy of users may
inhibit the growth of the Internet as a means of delivering business documents
and data. We may need to incur significant expenses and use significant
resources to protect against the threat of security breaches or to alleviate
problems caused by security breaches. We rely upon encryption and authentication
technology to provide secure transmission of confidential information. If our
security measures do not prevent security breaches, we could suffer operating
losses, damage to our reputation, litigation and possible liability. Advances in
computer capabilities, new discoveries in the field of cryptography or other
developments that render current encryption technology outdated may result in a
breach of our encryption and authentication technology and could enable an
outside party to steal proprietary information or interrupt our operations.
Failure of our third-party providers to provide adequate Internet and
telecommunications service could result in significant losses of revenue. Our
operations depend upon third parties for Internet access and telecommunications
service. Frequent or prolonged interruptions of these services could result in
significant losses of revenues. Each of them has experienced outages in the past
and could experience outages, delays and other
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difficulties due to system failures unrelated to our on-line architecture. These
types of occurrences could also cause users to perceive our services as not
functioning properly and therefore cause them to use other methods to deliver
and receive information. We have limited control over these third parties and
cannot assure you that we will be able to maintain satisfactory relationships
with any of them on acceptable commercial terms or that the quality of services
that they provide will remain at the levels needed to enable us to conduct our
business effectively.
Government regulation and legal uncertainties relating to the Internet
could harm our business. Changes in the regulatory environment in the United
States and other countries could decrease our revenues and increase our costs.
The Internet is largely unregulated and the laws governing the Internet remain
unsettled, even in areas where there has been some legislative action. It may
take years to determine whether and how existing laws such as those governing
intellectual property, privacy and taxation apply to the Internet. In addition,
because of increasing popularity and use of the Internet, any number of laws and
regulations may be adopted in the United States and other countries relating to
the Internet or other online services covering issues such as:
o user privacy;
o security;
o pricing and taxation;
o content; and
o distribution.
Costs of transmitting documents and data could increase, which would
harm our business and operating results. The cost of transmitting documents and
data over the Internet could increase. We may not be able to increase our prices
to cover these rising costs. Several telecommunications companies have
petitioned the Federal Communications Commission to regulate Internet and
on-line service providers in a manner similar to long distance telephone
carriers and to impose access fees on these providers. Also, foreign and state
laws and regulations relating to the provision of services over the Internet are
still developing. If individual states or foreign countries impose taxes or laws
that negatively impact services provided over the Internet, our cost of
providing our CommerceSense and other services may increase.
Risks Relating to this Offering
Shares eligible for future sale by our existing stockholders may
adversely affect our stock price and may render it difficult to sell class A
common stock. The average weekly trading volume of our class A common stock on
The Nasdaq SmallCap Market was, approximately, 86,100 shares during the quarter
ended December 31, 1998, 133,800 shares during the quarter ended March 31, 1999,
116,500 shares during the quarter ended June 30, 1999 and 75,800 shares during
the quarter ended September 30, 1999. On October 18, 1999, our registration
statement on form S-3 became effective. This registration statement covers the
sale of up to 5,476,280 shares of class A common stock by holders of our class A
common stock and holders of our series A preferred stock, class B common stock
and warrants that may be converted into or exchanged for class A common stock.
The market
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price of our class A common stock could be materially and adversely affected by
sales of even a small percentage of these shares or the perception that these
sales could occur.
Our stock price may be extremely volatile and this volatility could
affect your ability to sell your shares at a favorable price. The market price
of our class A common stock is likely to fluctuate substantially in the future.
In the past, companies that have experienced volatility in the market price of
their stock have been subject to securities class action litigation. If we were
subject to a securities class action lawsuit, it could result in substantial
costs and a significant diversion of resources, including management time and
attention.
The market for our common stock may be illiquid, which would restrict
your ability to sell your shares. Our class A common stock is currently trading
on The Nasdaq SmallCap Market. Due to the low weekly trading volume and the
large number of shares being registered by this registration statement, a
purchaser of the shares covered by this prospectus may not be able to find a
buyer for the portion of the shares the purchaser wishes to sell at an
acceptable price. It is possible that the trading market for the class A common
stock in the future will be thin and illiquid, which could result in increased
volatility in the trading prices for our class A common stock. The price at
which the class A common stock will trade in the future cannot be predicted and
will be determined by the market. The price may be influenced by investors'
perceptions of our business, financial condition and prospects, the use of the
Internet for business purposes and general economic and market conditions.
Our class A common stock was delisted from The Nasdaq SmallCap Market
on February 22, 1999 because we did not satisfy the listing criteria. Since then
we have been relisted on The Nasdaq SmallCap Market.
If we lose our $20 million net operating loss carryforward, our
financial results will suffer. Section 382 of the Internal Revenue Code contains
rules designed to discourage persons from buying and selling the net operating
losses of companies. These rules generally operate by focusing on ownership
changes among stockholders owning directly or indirectly 5% or more of the
common stock of a company or any change in ownership arising from a new issuance
of stock by a company. In general, the rules limit the ability of a company to
utilize net operating losses after a change of ownership of more than 50% of its
class A common stock over a three-year period. Purchases of our class A common
stock in amounts greater than specified levels could inadvertently create a
limitation on our ability to utilize our net operating losses for tax purposes
in the future. We are currently subject to a limitation on the utilization of
our net operating loss carryforward and we may suffer further limitation as a
result of sales of class A common stock covered by this prospectus.
Our board of directors can issue preferred stock with rights adverse to
the holders of class A common stock. Our board of directors is authorized,
without further stockholder approval, to determine the provisions of and to
issue up to 4,989,825 shares of preferred stock. Issuance of preferred shares
with rights to dividends and other distributions,
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voting rights or other rights superior to the class A common stock could be
adverse to the holders of class A common stock.
We may have to spend significant resources indemnifying our officers
and directors or paying for damages caused by their conduct. The Delaware
General Corporation Law provides for broad indemnification by corporations of
their officers and directors and permits a corporation to exculpate its
directors from liability for their actions. Our bylaws and certificate of
incorporation implement this indemnification and exculpation to the fullest
extent permitted under this law as it currently exists or as it may be amended
in the future. Consequently, subject to this law and to some limited exceptions
in our certificate of incorporation, none of our directors will be liable to us
or to our stockholders for monetary damages resulting from conduct as a
director.
FORWARD-LOOKING STATEMENTS
This prospectus contains a number of forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Specifically, all statements other than
statements of historical facts included in this prospectus, or incorporated by
reference in this prospectus, regarding our financial position, business
strategy and plans and objectives of management for future operations are
forward-looking statements. These forward-looking statements are based on the
beliefs of management, as well as assumptions made by and information currently
available to management. When used in this prospectus, including the information
incorporated by reference, the words anticipate, believe, estimate, expect, may,
will, continue, intend and plan and words or phrases of similar import, as they
relate to our financial position, business strategy and plans, or objectives of
management, are intended to identify forward-looking statements. These
cautionary statements reflect our current view regarding future events and are
subject to risks, uncertainties and assumptions related to various factors which
include but may not be limited to those listed under the heading Risk Factors
starting on page 5 and other cautionary statements in this prospectus and in the
information incorporated in this prospectus by reference.
Although we believe that our expectations are reasonable, we cannot
assure you that our expectations will prove to be correct. Based upon changing
conditions, should any one or more of these risks or uncertainties materialize,
or should any underlying assumptions prove incorrect, actual results may vary
materially from those described in this prospectus as anticipated, believed,
estimated, expected, intended or planned. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by these cautionary statements.
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USE OF PROCEEDS
The selling stockholders are selling all the common stock covered by
this prospectus for their own account. We will not therefore receive any
proceeds from the sale of this class A common stock.
BUSINESS
Internet Commerce Corporation
Industry Background
We believe that although the Internet has become an important new sales
channel, its real value will be in achieving business efficiencies and cost
savings by expanding global business-to-business interconnectedness.
We believe that in an increasingly global economy, improvements in
speed and efficiency in the supply chain between businesses are important and
improvements in the capacity of a business to buy and sell goods and services or
raw materials within its business community becomes an important factor in its
ability to compete. Thus, for example, in a just-in-time economy, timeliness,
and not price, may be the most important component in creating competitive
advantage.
The speed and efficiency of the supply chain are hindered by
incompatibilities in technologies and methodologies used to communicate business
information among trading communities, which slow down the flow of information
and create bottlenecks. These incompatibilities stem from the diversity of
trading partners, which may range from members of the Fortune 100 to sole
proprietors providing niche products. Trading partners may therefore have
different communications capabilities and requirements. Some trading partners
may rely on paper or fax to communicate, others exchange data in proprietary
file formats through direct dial-up connections or over the Internet, while the
largest trading partners use electronic methods such as electronic data
interchange, or EDI, over value added networks, or VANs.
The CommerceSense Solution
We believe that our CommerceSense service provides a solution to the
communication difficulties caused by the differences in data formats, networks
and communications methods used by the members of trading communities, and thus
bridges the incompatibility gap and enabling seamless electronic business
communication. Our CommerceSense service can translate incompatible files into a
format any user is capable of receiving and uses the Internet to transmit the
data file by EDI, fax or other format. We believe that users of our
CommerceSense service can thus improve their productivity and reduce their costs
by enabling electronic business-to-business transactions between parties with
different systems.
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We believe that our CommerceSense service improves the basic
infrastructure of business-to-business electronic communications by providing
intelligent messaging and routing using the Internet, which, we believe,
improves the security, reliability, ease of use and acceptability of using the
Internet for business-to-business electronic commerce. CommerceSense performs
these functions without requiring that the user purchase any software and at
prices that are, we believe, less than half of the prices currently charged by
traditional VANs.
We designed our CommerceSense service to avoid what we believe are
inefficiencies in traditional VAN services, software products and phone and
manual fax processes, which we believe are more expensive, slower and more
difficult to use than our CommerceSense service. CommerceSense incorporates
proprietary technology and is immediately accessible using a standard Internet
connection and a web browser.
Our CommerceSense service uses the Internet to deliver a higher level
of service and more features than traditional VANs:
o Documents are delivered up to 100 times faster, depending upon
the speed of the customer's Internet connections;
o Our customers may more effectively track, monitor and process
business documents and other data files using our real-time
document management browser screen displays;
o Our CommerceSense service allows us to consistently provide
confirmed delivery of documents and other data files;
o Documents can be delivered either in real-time or retrieved
when convenient for the customer. Real-time delivery reduces
the potential for document corruption, bottlenecks and other
problems associated with batch delivery modes, which are
traditionally store-and-forward and in some cases can take
several hours to be delivered;
o Our CommerceSense service can handle transmissions of data
other than standard business documents, such as images,
engineering drawings, architectural blueprints, audio and some
types of video; and
o Our customers enjoy flexibility in creating different document
types and formats for various business applications. For
example, our customers can add their business logo to their
documents and can use their own format for each document type.
In addition, we believe our CommerceSense service offers advantages
over e-mail and other Internet-based electronic commerce systems, such as a full
range of VAN services, translation of a wide variety of data into
customer-specified formats, management of business documents or data files of
virtually any size and of a wide variety, including purchase orders, invoices,
statements, inventory tracking and shipping documents, images, engineering
drawings, architectural blueprints, audio and some types of video. CommerceSense
also provides a complete audit trail of content delivery and customer selection
from a variety of security methods.
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We believe that CommerceSense is one of the only Internet-based data
transmission services that is approved to interconnect with the eight largest
traditional VANs, which we believe currently provide EDI services for 90% of
companies capable of using EDI. As a result, we can handle EDI traffic between
our customers and any of their trading partners that choose to continue to use a
traditional VAN and between a customer that uses a traditional VAN and its
trading partners that do not. This provides our customers with the possibility
of maximum penetration into their trading partner community.
EDI for web-based retailers. We provide an electronic document and data file
delivery link between web-based retailers and their vendors. We believe that
many larger vendors require that product orders and other documents be
transmitted using EDI. Web retailers can use our CommerceSense service to comply
with this requirement and thus can reduce their costs and improve their ability
to locate, order, track and deliver products. Our CommerceSense service can
process purchase orders, invoices, order status reports and other files
transmitted between web-based shopping portals of electronic retailers and their
vendors, distributors, and manufacturers and can also manage critical logistics
delivery files. Due to the special requirements and rapid growth of these new
web-based retail companies, we have a dedicated web retailer sales and support
team that offers the retail companies the option to outsource to us all of their
electronic document and data file delivery requirements.
EDI to fax service. Traditional EDI users convert electronic documents into a
faxable format and fax the documents manually to their trading partners that can
not receive documents transmitted electronically in EDI. Our CommerceSense fax
service allows our customers to send a document electronically, which we will
then electronically convert and fax to any of our customer's trading partners
that cannot receive electronically transmitted documents and specify that they
want to receive the document by fax. We believe that our CommerceSense fax
service will result in lower fax costs for our customers as well as reduced
human involvement in the document delivery process and fewer errors. Recently,
several other VANs began offering similar EDI-fax services; however, we believe
that these services cost 3 to 5 times more per page and are currently only
offered domestically. Our customers currently send documents using our
CommerceSense fax service to approximately 900 trading partners.
Large-scale electronic document management and delivery. Our CommerceSense
service can transmit large-scale non-EDI electronic documents and other large
files, which may include catalogs, engineering drawings, graphics and some types
of video. CommerceSense allows customers to manage and distribute these large
files in real-time and provides archiving, security, authentication and audit
services. CommerceSense will support both a publish/subscribe configuration, in
which a customer can publish any number of files for subscribers authorized by
the customer to view and/or download, and a point-to-point-delivery
configuration that operates like our CommerceSense VAN service.
Business Strategy
We believe that our CommerceSense service provides a platform with many
applications that will allow our customers to fulfill a substantial portion of
their electronic
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document and data delivery requirements with significantly less administrative
effort and cost. We believe that CommerceSense will allow our customers to send
us the majority of their important documents and data files which we will then
be able to transmit to each of the intended recipients in any form requested by
the recipient. Our customers will thus be able to integrate a substantial
portion of their document and data file delivery methods into a single, seamless
process.
A large company that uses EDI to communicate with its vendors is
referred to as a hub; their trading partners, vendors or customers, are referred
to as spokes. We intend to continue to market CommerceSense as a one-stop
electronic document and data delivery service to the 2,500 largest hub companies
in the United States. Due to the cost to the spoke companies of implementing EDI
and using VANs and other electronic document delivery methods, large hub
companies are currently connected electronically to only a small percentage of
their potential spoke companies.
Our current customers conduct their business internationally, and we
intend to service these customers and pursue new international customers by
expanding our marketing and operation to Europe and other places outside the
United States.
We believe that a significant number of these hub companies intend to
expand the use of electronic commerce to more of their spoke companies. Since
small spoke companies using our CommerceSense service require only an Internet
connection or a web browser to receive and transmit documents electronically
and, we believe, will also be able to receive electronic documents using our
CommerceSense fax service, large hub companies may now be able to request or
encourage electronic commerce with their small hub companies. In turn, many of
these spoke companies may become the hub companies for their suppliers, which
should further broaden the reach of our CommerceSense service.
We intend to encourage the use of our CommerceSense service through
exceptional customer service. We currently offer technical support to our
customers twenty-four hour a day, seven days a week. Due to the multiple
redundancies of all of our systems and the stability of the Securities Industry
Automation Corporation, or SIAC, which is the location of our data center, our
CommerceSense service has been fully operational more than 99% of the time.
We intend to seek acquisitions of services, products or companies,
joint ventures or other arrangements which complement or expand our business.
However, we cannot assure you that we will be able to identify appropriate
acquisition candidates in the future or that we will be able to successfully
negotiate and finance the acquisition if an acquisition candidate is identified.
If we make other types of acquisitions, it will be necessary to assimilate the
acquired services, technologies or customers into our operations. If we
consummate one or more significant acquisitions through the issuance of shares
of class A common stock, you could suffer significant dilution of your ownership
interests in ICC. Finally, expanding our business through acquisitions may
expose us to new and different competitors, which will likely have greater
financial and other resources than we do.
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We expect to experience seasonality in our business that reflects the
seasonality of the businesses of our customers. We believe that period-to-period
comparisons of our operating results may not be meaningful and that our
operating results for any particular period will not necessarily be a good
indicator of our future performance.
SELLING STOCKHOLDERS
Robert Nagel had the right to receive 22,000 shares of class A common
stock in connection with the settlement of an arbitration we reached in February
1999. Of these shares, 16,500 shares were issued to Mr. Nagel and 5,500 shares
were issued to Leslie Trager in compensation for legal services rendered to Mr.
Nagel.
In the table below is information, as of October 20, 1999, regarding
the beneficial ownership of the shares by the selling stockholders. The number
of shares shown as beneficially owned by the selling stockholders includes all
of the shares of class A common stock to be issued upon conversion in full of
all of the convertible securities described above. The information regarding the
selling stockholders' beneficial ownership after this offering assumes that all
shares of class A common stock offered by the selling stockholders through this
prospectus are actually sold. The presentation is based on 1,879,941 shares of
our class A common stock outstanding as of October 20, 1999.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Shares Number of Common Stock
of Common Stock Shares of Beneficially Owned
Beneficially Owned Common Stock After Offering
- ---------------------------------- --------------------------------------
Selling Stockholders Before Offering Offered Number Percent
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ROBERT NAGEL 16,500 16,500 0 *
LESLIE TRAGER 5,500 5,500 0 *
</TABLE>
- ----------
* Less than 1%
PLAN OF DISTRIBUTION
We anticipate that the selling stockholders may sell all or a portion
of the shares offered by this prospectus from time to time on The Nasdaq
SmallCap Market, on other securities exchanges or in private transactions, at
fixed prices, at market prices prevailing at the time of sale or at prices
reasonably related to the market price, at negotiated prices, or by a
combination of these methods of sale through:
o ordinary brokerage transactions and transactions in which the broker
solicits purchases;
o sales to one or more brokers or dealers as principal, and the resale by
those brokers or dealers for their account, including resales to other
brokers and dealers;
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o block trades in which a broker or dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; or
o privately negotiated transactions with purchasers.
We are not aware as of the date of this prospectus of any agreements
between the selling stockholders and any broker-dealers regarding the sale of
the shares offered by this prospectus, although we have made no inquiry in that
regard. In connection with distributions of the shares, the selling stockholders
may enter into hedging transactions with broker-dealers. In connection with
these transactions:
o broker-dealers may engage in short sales of the shares covered by this
prospectus in the course of hedging the positions they assume with
selling stockholders;
o the selling stockholders may sell shares of our class A common stock
short and deliver the shares to close out their short positions;
o the selling stockholders may enter into option or other transactions
with broker-dealers that require the delivery to the broker-dealer of
the shares covered by this prospectus, which the broker-dealer may
resell according to this prospectus; and
o the selling stockholders may pledge the shares covered by this
prospectus to a broker or dealer and upon a default, the broker or
dealer may effect sales of the pledged shares according to this
prospectus.
The selling stockholders and any broker, dealer or other agent
executing sell orders on behalf of the selling stockholders may be considered to
be underwriters within the meaning of the Securities Act. If so, commissions
received by any of these brokers, dealers or agents and profit on any resale of
the shares may be considered to be underwriting commissions under the Securities
Act. These commissions received by a broker, dealer or agent may be in excess of
customary compensation.
All costs, fees and expenses of registration incurred in connection
with the offering will be borne by us. All selling and other expenses incurred
by the selling stockholders will be borne by the selling stockholders.
We have notified the selling stockholders that they will be subject to
applicable provisions of the Securities Exchange Act of 1934 and its rules and
regulations, including, among others, Rule 102 under Regulation M. These
provisions may limit the timing of purchases and sales of any of the common
stock by the selling stockholders. Rule 102 under Regulation M provides, with
some exceptions, that it is unlawful for the selling stockholders or their
affiliated purchasers to, directly or indirectly, bid for or purchase, or
attempt to induce any person to bid for or purchase, for an account in which the
selling stockholders or affiliated purchasers have a beneficial interest, any
securities that are the subject of the distribution during the applicable
restricted period under Regulation M. All of the above
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may affect the marketability of the class A common stock. To the extent required
by law, we may require the selling stockholders, and their brokers if
applicable, to provide a letter that acknowledges compliance with Regulation M
under the Exchange Act before authorizing the transfer of the selling
stockholders' shares.
DESCRIPTION OF SECURITIES
The following summary description of the material terms of our capital
stock and warrants is not intended to be complete. Since the terms of our
capital stock must comply with the provisions of our certificate of
incorporation and bylaws, which are included as exhibits to the registration
statement, and the Delaware General Corporation Law, you should read our
certificate of incorporation and bylaws very carefully. The relevant provisions
of our certificate of incorporation and bylaws and the Delaware General
Corporation Law are discussed under the heading Delaware Law and Certificate of
Incorporation and Bylaw Provisions on page 25 of this prospectus.
We have the authority to issue up to 40,000,000 shares of class A
common stock, 2,000,000 shares of class B common stock, 2,000,000 shares of
class E-1 common stock, 2,000,000 shares of class E-2 common stock and 5,000,000
shares of preferred stock, which includes 10,000 shares of series A preferred
stock and 175 shares of series S preferred stock.
Common Stock
Class A common stock
As of July 31, 1999, there were 1,810,936 shares of class A common
stock outstanding, held of record by approximately 160 stockholders. Class A
common stock is currently traded on The Nasdaq SmallCap Market under the symbol
ICCSA.
Holders of class A common stock are entitled to one vote per share on
all matters to be voted on by our common stockholders. Subject to the
preferences of the preferred stock, the holders of class A common stock are
entitled to a proportional distribution of any dividends that may be declared by
the board of directors, provided that if any distributions are made to the
holders of class A common stock, identical per-share distributions must be made
to the holders of the class B common stock, even if the distributions are in
class A common stock. In the event of a liquidation, dissolution or winding up
of ICC, the holders of class A common stock are entitled to share equally with
holders of the class B common stock in all assets remaining after liabilities
and amounts due to holders of preferred stock have been paid in full or set
aside. Class A common stock has no preemptive, redemption or conversion rights.
The rights of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of series A preferred stock,
series S preferred stock or any other series of preferred stock that ICC may
designate and issue in the future.
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Class B common stock
As of July 31, 1999, there were 115,599 shares of class B common stock
outstanding, held of record by five stockholders.
Class B common stock is convertible into class A common stock on a
one-for-one basis both upon request of the holder of the class B common stock or
automatically upon transfer of the class B common stock to a stockholder that
does not hold any class B common stock before the transfer. Class B common stock
is entitled to six votes per share rather than one vote per share, but in all
other respects each share of class B common stock is identical to one share of
class A common stock.
Class E-1 and E-2 common stock
On May 28, 1999, we called for redemption on June 11, 1999 all
outstanding shares of class E-1 and class E-2 common stock for a total
redemption price of $276.85. On July 31, 1999 there were no shares of class E-1
or E-2 common stock outstanding.
Preferred Stock
Our certificate of incorporation authorizes our board of directors,
without any approval of our stockholders, to issue up to 5,000,000 shares of
preferred stock from time to time and in one or more series and to fix the
number of shares of any series and the designation, conversion, dividend and
other rights of the series. The board of directors has designated 10,000 shares
of preferred stock as series A preferred stock and 175 shares of preferred stock
as series S preferred stock.
Future issuances of preferred stock may have the effect of delaying or
preventing a change in control of ICC. The issuance of preferred stock could
decrease the amount of earnings and assets available for distribution to the
holders of common stock or could adversely affect the rights and powers,
including voting rights, of the holders of our common stock. In some
circumstances, the issuance of preferred stock could have the effect of
decreasing the market price of our common stock.
Series A preferred stock
As of July 31, 1999, ICC had 9,590 shares of series A preferred stock
outstanding, held by approximately 100 stockholders.
Series A preferred stock is convertible, at the option of the holder,
into class A common stock. Each share of series A preferred stock is convertible
into a number of shares of class A common stock determined by dividing $1,000 by
the average market price of the class A common stock for the ten trading days
before the conversion date. However,
o if this average market price is less than $3 per share, the
series A preferred stock provides that the average market
price will be considered to be $3 per
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share, which results in a maximum of 333 shares which may be
issued upon conversion of one share of series A preferred
stock;
o if this average market price is greater than $5 per share, the
series A preferred stock provides that the average market
price will be considered to be $5 per share, which results in
a minimum of 200 shares which may be issued upon conversion of
one share of series A preferred stock; and
o until December 31, 1999 each of 8,505 shares of series A
preferred stock is convertible into a maximum of 200 shares of
class A common stock.
As a result of this formula, if all of the series A preferred stock were
converted before January 1, 2000, a maximum of 2,064,334 shares of class A
common stock could be issued in this conversion. If all of the series A
preferred stock were converted after December 31, 1999, a maximum of 3,213,334
shares of class A common stock would be issued in this conversion. The minimum
and maximum conversion rates apply even if the class A common stock is not
traded on The Nasdaq SmallCap Market after January 1, 2000. No fewer than 25
shares may be converted at one time unless the holder then holds fewer than 25
shares and converts all of the holder's shares at that time.
Series A preferred stock is redeemable, in whole or in part, by ICC,
commencing on the third anniversary of the date of issuance. The redemption
price for each share of series A preferred stock is $1,000 plus unpaid
dividends. Notice of redemption must be given 30 days before the redemption
date.
Subject to the rights of stockholders holding any series of ICC
preferred stock that is senior to the series A preferred stock, upon a
liquidation, dissolution or winding up of ICC, the holders of series A preferred
stock are entitled to receive an amount equal to $1,000 per share of series A
preferred stock before any distribution is made to holders of common stock.
The holders of the outstanding shares of series A preferred stock are
entitled to a 4% annual dividend payable in cash or in shares of class A common
stock, at the option of ICC. Thus dividends are payable on each July 1
commencing on July 1, 1999. ICC elected to issue 14,641 shares of class A common
stock in payment of the dividend due on July 1, 1999.
Series A preferred stock has no voting rights except as expressly
required by law.
Series S preferred stock
As of July 1, 1999, ICC had no outstanding shares of series S preferred
stock. ICC does not intend to issue any shares of series S preferred stock in
the future.
Voting Trust. Thomas H. Lipscomb, former chairman of the board of
directors and president of ICC, and Alan N. Alpern, former chief financial
officer of ICC, have deposited substantially all the shares of common stock
beneficially owned by them and other members
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of their families, which includes class B common stock, into a voting trust
until February 18, 2000. As of May 1, 1998, 123,739 shares of class B common
stock were forfeited according to the terms of an escrow agreement dated as of
September 11, 1992, as amended September 20, 1994, and these shares were
delivered by the escrow agent to ICC which holds the shares in treasury. As of
September 10, 1999, the shares in the voting trust represented 20.3% of the
total voting power of ICC. However, the shares in the voting trust would
currently represent only 6.4% of the total voting power of ICC if all of the
shares of class A common stock registered by this registration statement were
currently outstanding and none of the currently outstanding shares of class B
common stock was converted into class A common stock. The shares of common stock
held in the voting trust will be voted at the direction of a majority of the
non-management directors of ICC and Richard J. Berman, the chairman of ICC, and
Arthur R. Medici, former president and a current director of ICC.
Warrants
As of June 30, 1999, there were 1,184,715 class A warrants outstanding
and 950,490 class B warrants outstanding. On June 30, 1999, we commenced an
offer to exchange one share of class A common stock for each 8 outstanding class
A warrants and one share of class A common stock for each 16 outstanding class B
warrants. The exchange offer was completed on July 30, 1999 and, as a result,
ICC issued a total of 148,651 shares of class A common stock in exchange for
868,500 class A warrants and 639,002 class B warrants.
As of July 31, 1999, there were 316,215 class A warrants outstanding.
Each class A warrant entitles the holder upon exercise to purchase one class B
warrant, which is described below, and one share of class A common stock. Each
class A warrant is exercisable for $23.20 and expires in February 2002.
As of July 31, 1999, there were 311,488 class B warrants outstanding.
Each class B warrant entitles the holder upon exercise to purchase one share of
class A common stock. Each class B warrant is exercisable for $31.22 and expires
in February 2002.
The class A and class B warrants are traded in the over-the-counter
market on the OTC Bulletin Board. The number of class A and class B warrants and
the exercise prices of the class A and class B warrants are subject to
adjustment in the event of any subdivision or combination of the outstanding
class A common stock, any stock dividend payable in shares of class A common
stock paid to holders of class A common stock, or any sale of any shares of
class A common stock, or of any rights, warrants, options or securities
convertible into or exercisable for class A common stock, for consideration
valued at less than the market price of the class A common stock at that time.
If all the series A preferred stock remains outstanding on January 1, 2000 and
the minimum price at which it may be converted changes to $3.00 per share, the
number of class A warrants outstanding as of July 31, 1999 would increase to
405,763 and the number of class B warrants outstanding as of July 31, 1999 would
increase to 399,534, and the exercise prices of the class A warrants would
decrease to $18.08 and the exercise price of the class B warrants would decrease
to $24.34.
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In connection with our initial public offering, unit purchase options
were issued to D.H. Blair and its designees to purchase 31,000 units for $33.75
per unit. Upon exercise of these options, the holders are entitled to receive
one share of class A common stock, one class A warrant and one class B warrant.
In connection with our 1997 private placement, unit purchase options were issued
to D.H. Blair and its designees to purchase 112,229 of the same units for $15.75
per unit. The unit purchase options issued in connection with our 1997 private
placement are subject to an anti-dilution adjustment as a result of the private
placement of series A preferred stock and this adjustment would be substantial.
On June 30, 1999, D.H. Blair and its designees exchanged all of these unit
purchase options for a total of 105,000 shares of class A common stock.
Investors in our 1998 bridge financing purchased 10% notes with
warrants attached. For each $1 of notes, a purchaser was entitled to 0.3
warrants and we issued a total of 778,500 warrants in this transaction. Each of
these warrants entitles the holder upon exercise to purchase one share of class
A common stock for $2.50. These warrants expire between December 2001 and July
2002.
Two placement agents provided services in connection with our 1998
bridge financing and are entitled to receive a total of 59,850 warrants for
these services. Each of these warrants entitles the holder upon exercise to
purchase one share of class A common stock for $2.50. These warrants expire
between July 2001 and January 2002.
Several NASD registered broker/dealers provided services in connection
with our April 1999 private placement of series A preferred stock and are
entitled to receive a total of 173,250 warrants for these services. Each of
these warrants entitles the holder upon exercise to purchase one share of class
A common stock for $5.00 and expires in April 2002.
The warrants issued in our 1998 bridge financing to investors and
placement agents are redeemable by ICC for $2.50 per warrant within 10 days of
mailing an acceleration notice at any time until January 2000 if the bid price
of the class A common stock exceeds $7.50 subject to adjustment for stock
splits, dividends or combinations for 10 consecutive trading days.
The number and exercise price of the warrants issued to financial
advisors in connection with our 1998 bridge financing and our April 1999 private
placement are subject to adjustment in the event of any stock dividend payable
in shares of class A common stock paid to holders of class A common stock or any
subdivision or combination of the outstanding class A common stock.
Summerwind Restructuring, Inc. received 500,000 warrants as
consideration for various consulting services under a consulting agreement with
our predecessor, Infosafe Systems, Inc. Each of these warrants entitles the
holder upon exercise to purchase one share of class A common stock for $2.50 and
expires in June 2003. The number and exercise price of the Summerwind warrants
are subject to adjustment in the event of any sale or distribution of debt or
other securities of ICC or of cash, property or other assets to holders of class
A common stock, any stock dividend payable in shares of class A common stock
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paid to holders of class A common stock, any subdivision or combination of the
outstanding class A common stock, or any sale of any shares of class A common
stock, or of any rights, options, warrants, or securities convertible into or
exercisable for class A common stock, for consideration valued at less than the
then exercise price of the Summerwind warrants.
Delaware Law and Certificate of Incorporation and Bylaw Provisions
The following is a summary description of material provisions of the
Delaware General Corporation Law and our certificate of incorporation and
bylaws. For further information you should refer to our certificate of
incorporation and bylaws.
We must comply with the provisions of Section 203 of the Delaware
General Corporation Law. Section 203 prohibits a publicly-held Delaware
corporation from engaging in a business combination with an interested
stockholder for three years after the date of the transaction in which the
person became an interested stockholder, unless the business combination is
approved in a prescribed manner. A business combination includes mergers, asset
sales and other transactions resulting in a financial benefit to the interested
stockholder. An interested stockholder is generally a person who, together with
affiliates and associates, owns, or within the past three years did own, 15% of
the corporation's voting stock.
There are provisions in our certificate of incorporation, our bylaws
and Delaware law that make it more difficult for a third party to obtain control
of ICC, even if doing so would be beneficial to our stockholders. This could
depress our stock price. However, these provisions enhance the likelihood of
continuity and stability in the composition of the policies formulated by the
board of directors. In addition, these provisions are intended to ensure that
the board of directors will have sufficient time to act in what it believes to
be in the best interests of ICC and its stockholders. These provisions also are
designed to reduce the vulnerability of ICC to an unsolicited proposal for a
takeover of ICC that does not contemplate the acquisition of all of its
outstanding shares or an unsolicited proposal for the restructuring or sale of
all or part of ICC. The provisions are also intended to discourage some tactics
that may be used in proxy fights.
Classified Board of Directors
We received stockholder authorization on June 26, 1998 to amend our
certificate of incorporation to divide the board of directors into three classes
of directors. The classes must be as nearly equal in number as possible and
serve staggered three-year terms. We intend to elect directors for each class at
our next annual meeting of stockholders. As a result, after out next annual
meeting, approximately one-third of the board of directors will be elected each
year. The classified board provision will help to assure the continuity and
stability of the board of directors and the business strategies and policies of
ICC as determined by the board of directors. The classified board provision
could have the effect of discouraging a third party from making a tender offer
for our shares or attempting to obtain control of ICC. In addition, the
classified board provision could delay stockholders who do not agree with the
policies of the board of directors from removing a majority of the board of
directors for two years.
-25-
<PAGE>
Indemnification
We have included in our certificate of incorporation and bylaws
provisions to (1) eliminate the personal liability of our directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by the Delaware General Corporation Law and (2) indemnify our directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law, including circumstances in which indemnification is discretionary.
We believe that these provisions are necessary to attract and retain
qualified persons as directors and officers.
Transfer Agent and Registrar
The transfer agent and registrar for our class A common stock is
American Stock Transfer and Trust Company.
LEGAL MATTERS
The legality of the shares being offered will be passed upon by Kramer
Levin Naftalis & Frankel LLP, New York, New York.
EXPERTS
Richard A. Eisner & Company, LLP, independent auditors, have audited
our consolidated financial statements as of July 31, 1998 and for each of the
two years then ended and for the period from November 18, 1991 (inception)
through July 31, 1998, as stated in their report, included in our annual report
on Form 10-KSB for the year ended July 31, 1998 which is incorporated in this
prospectus by reference. This report contained an explanatory paragraph which
indicated that substantial doubt existed regarding ICC's ability to continue as
a going concern. Our consolidated financial statements are incorporated by
reference in reliance on Richard A. Eisner & Company, LLP's report, given on
their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
o Government Filings. We file annual, quarterly and special reports,
proxy statements and other information with the SEC. Our sec filings
are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at
the SEC's public reference room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the sec's
public reference room in Washington, D.C. by calling the SEC at
1-800-SEC-0330.
-26-
<PAGE>
We have filed with the SEC a registration statement on form S-3 to
register the shares of common stock to be offered. This prospectus is part of
that registration statement and, as permitted by the SEC's rules, does not
contain all the information included in the registration statement. For further
information about us and our class A common stock, you should refer to that
registration statement and to the exhibits and schedules filed as part of that
registration statement, as well as the documents we have incorporated by
reference which are discussed below. You can review and copy the registration
statement, its exhibits and schedules, as well as the documents we have
incorporated by reference, at the public reference facilities maintained by the
SEC as described above. The registration statement, including its exhibits and
schedules, are also available on the SEC's web site, given above.
o Stock Market. Shares of our class A common stock are traded on The
Nasdaq SmallCap Market. Materials that are filed can be inspected at
the offices of the National Association of Securities Dealers, Inc.,
Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
o Information Incorporated by Reference. The SEC allows us to incorporate
by reference the information we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is an important
part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any further
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, until this offering has been completed:
o Our annual report on form 10-KSB for the year ended July 31,
1998;
o Our quarterly reports on form 10-QSB for the quarters ended
October 31, 1998, January 31, 1999 and April 30, 1999;
o Our quarterly reports on form 10-QSB/A for the quarters ended
October 31, 1998, January 31, 1999 and April 30, 1999;
o Our proxy statement for a special meeting of stockholders held
on March 15, 1999;
o Our current reports on Form 8-K, filed with the SEC on April
20, 1999 and July 1, 1999 and our amendment on form 8-K/A
filed with the SEC on April 28, 1999; and
o The description of our class A common stock contained in our
Rule 424 prospectus filed with the SEC on June 18, 1997,
including any amendments or reports filed for the purpose of
updating the description. See also Description of Securities
on pages 20 to 26.
-27-
<PAGE>
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Internet Commerce Corporation
805 Third Avenue
New York, New York 10022
(212) 271-7640
Attn: Victor Bjorge
We are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents. We have not authorized anyone to
provide you with, and you should not rely on, information other than that which
is in this prospectus, any prospectus supplement or which is incorporated in
this prospectus by reference.
-28-
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the distribution of the securities covered by this Registration Statement.
All of the expenses will be borne by ICC except as otherwise indicated.
SEC Registration Fee (actual)..................................$ 68.81
Nasdaq SmallCap Market listing fee (actual)....................$ 0
Blue Sky fees and expenses.....................................$ 500
Printing and engraving fees and expenses.......................$ 1,000
Legal fees and expenses........................................$ 2,500
Accounting fees and expenses...................................$ 500
Miscellaneous .............................................$ 431.19
Total..........................................................$ 5,000
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware,
referred to as the DGCL, provides that a corporation may indemnify directors and
officers as well as other employees and individuals against expenses, including
attorneys' fees, judgments, fines, and amounts paid in settlement in connection
with specified actions, suits, proceedings whether civil, criminal,
administrative, or investigative, other than action by or in the right of the
corporation, known as a derivative action, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses, including attorneys' fees, incurred in connection with the
defense or settlement of the action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statue provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise. Section 145 thus makes provision for indemnification in terms
sufficiently broad to cover officers and directors, under certain circumstances,
for liabilities arising under the Securities Act of 1933, as it may be amended
from time to time.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
<PAGE>
Article VII of our by-laws and Article Seventh of our Amended and
Restated Certificate of Incorporation, as further amended, both provide that we
shall indemnify, to the fullest extent permitted by Section 145 of the DGCL,
each person that Section 145 grants us power to indemnify. Article VIII of our
by-laws and Article Seventh of our Amended and Restated Certificate of
Incorporation, as further amended, both provide that no director shall be liable
to us or any of our stockholders for monetary damages for breach of fiduciary
duty as a director, except with respect to (1) a breach of the director's duty
of loyalty to the corporation or its stockholders, (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) liability under Section 174 of the DGCL or (4) a transaction from which
the director derived an improper personal benefit, and that it is the intention
of the foregoing provisions to eliminate the liability of our directors to ICC
or our stockholders to the fullest extent permitted by Section 102(b)(7) of the
DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to our directors, officers
and controlling persons pursuant to the foregoing provisions, or otherwise, we
have been advised that in the opinion of the securities and exchange commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by ICC of expenses incurred or paid by a
director, officer or controlling person of ICC in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by ICC is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated in this registration statement
by reference to a prior filing of ICC under the Securities Act or the Exchange
Act as indicated in parenthesis:
Exhibit
Number Description
- ------ -----------------------------------------
3(i).1 Amended and Restated Certificate of Incorporation (1)
3(i).2 Certificate of Merger merging Infosafe Systems, Inc. and Internet
Commerce Corporation (1)
3(i).3 Certificate of Amendment to the Amended and Restated Articles of
Incorporation (2)
3(i).4 Certificate of Designations -- Series A Convertible Redeemable
Preferred Stock (1)
3(i).5 Certificate of Designations -- Series S Preferred Stock (1)
4.1 Specimen Certificate for Class A Common Stock (3)
-2-
<PAGE>
4.2 Form of Revised Subscription Agreement, dated March 31, 1999, relating
to the shares of Series A Convertible Redeemable Preferred Stock sold
in the 1999 private placement (1) 4.3 Form of Underwriter's Option (3)
4.4 Form of Warrant Agreement (3)
4.5 Escrow agreement, as amended (3)
4.6 Form of warrant expiring February 18, 2002 (3)
4.7 Warrant Agreement, dated February 10, 1997, by and among ICC, American
Stock Transfer and Trust Company as warrant agent and D.H. Blair
Investment Banking Corp. (4)
4.8 Amendment Agreement, dated February 10, 1997, to Warrant Agreement
dated January 25, 1995 by and among ICC, American Stock Transfer and
Trust Company as warrant agent and D.H. Blair Investment Banking Corp.
(4)
4.9 Form of Unit Purchase Option for D.H. Blair Investment Banking Corp.
dated February 18, 1997 (4)
4.10 Agreement, dated February 18, 1997, between ICC and D. H. Blair
Investment Banking Corp. to extend an agreement dated January 25, 1995
regarding mergers, acquisitions and similar transactions (4)
4.11 Form of Class A Bridge Warrant issued in the 1998 bridge financing (1)
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP regarding legality of
the shares of class A common stock being registered pursuant to this
Registration Statement
9.1 Voting Trust Agreement between the trustees of the voting trust and
various stockholders of ICC (3)
9.2 Amendments to the Voting Trust Agreement (1)
10.1 1992 Stock Option Plan (3)
10.2 1994 Stock Option Plan (3)
10.3 Formation and Stock Purchase Agreement, dated as of April 16, 1997
among ICC, Michele Golden and Michael Cassidy (5)
10.4 Lease Agreement between 805 Third Ave. Co. as landlord and ICC as
tenant relating to the rental of ICC's current principal executive
office (6)
10.5 Consulting Agreement, dated as of June 12, 1998, between Summerwind
Restructuring, Inc. and ICC (1)
10.6 Lease Agreement, dated as of May 21, 1999, between JB Squared LLC and
ICC relating to the rental of approximately 4,000 square feet at the
Lakeview Executive Center, 45 Research Way, East Setauket, New York,
11733 (7)
10.7 Employment Agreement for Richard J. Berman dated as of September 15,
1998 (1)
10.8 Employment Agreement for G. Michael Cassidy dated as of April 16, 1997
(1)
10.9 Employment Agreement for Michele Golden dated as of April 16, 1997 (1)
10.10 Employment Agreement for Donald R. Gordon dated as of December 18, 1998
(1)
-3-
<PAGE>
10.11 Employment Agreement for David Hubbard dated as of April 16, 1997 (1)
10.12 Employment Agreement for Walter M. Psztur dated as of August 21, 1998
(1)
10.13 Settlement Agreement between ICC, Arthur R. Medici and Dr. Robert H.
Nagel
10.14 Revised Settlement Agreement between ICC, Arthur R. Medici and Dr.
Robert H. Nagel
10.15 Amendment to the Revised Settlement Agreement between ICC, Arthur R.
Medici and Dr. Robert H. Nagel
23(ii).1 Consent of Richard A. Eisner & Company, LLP
(b) Financial Statement Schedules:
Not Applicable.
(1) Incorporated by reference to the Company's Registration Statement on
Form S-3 (File no. 333-80043)
(2) Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended July 31, 1998.
(3) Incorporated by reference to the Company's Registration Statement on
Form SB-2 (File no. 33-83940)
(4) Incorporated by reference to the Company's Report on Form 10-QSB dated
January 31, 1997
(5) Incorporated by reference to the Company's Report on Form 10-QSB dated
April 30, 1997
(6) Incorporated by reference to the Company's Report on Form 10-QSB dated
October 31, 1997
(7) Incorporated by reference to Amendment No. 3 to the Company's
Registration Statement on Form S-3 (File no. 333-80043)
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
-4-
<PAGE>
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
21st day of October, 1999.
Internet Commerce Corporation
by: /s/ Dr. Geoffrey S. Carroll
-------------------------------------
Dr. Geoffrey S. Carroll
President and Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act, this registration
statement or amendment thereto has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Dr. Geoffrey S. Carroll President and Chief October 21, 1999
- ---------------------------------- Executive Officer
Dr. Geoffrey S. Carroll (Principal Executive
Officer), Director
/s/ Walter M. Psztur Chief Financial Officer October 21, 1999
- ----------------------------------- (Principal Financial
Walter M. Psztur and Accounting Officer)
/s/ Richard J. Berman Director October 21, 1999
- ----------------------------------
Richard J. Berman
/s/ G. Michael Cassidy Director October 21, 1999
- ----------------------------------
G. Michael Cassidy
/s/ Michele Golden Director October 21, 1999
- ----------------------------------
Michele Golden
- ---------------------------------- Director October __, 1999
Charles C. Johnston
/s/ Arthur R. Medici Director October 21, 1999
- -----------------------------------
Arthur R. Medici
- ---------------------------------- Director October __, 1999
James Ortenzio
/s/ Peter Ruel Director October 21, 1999
- ----------------------------------
Peter Ruel
Exhibit 5.1
October 22, 1999
Internet Commerce Corporation
805 Third Avenue
New York, New York 10022
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Internet Commerce Corporation, a
Delaware corporation (the "Registrant"), in connection with the preparation and
filing of a Registration Statement on Form S-3 (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"), with respect to
the registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 22,000 shares (the "Shares") of Class A Common Stock, par value
$.01 per share.
In connection with the registration of the Shares, we have
reviewed copies of the Registration Statement, the Amended and Restated
Certificate of Incorporation, as amended (the "Certificate of
Incorporation"),and the By-laws of the Registrant, resolutions of the Board of
Directors of the Registrant and such other documents and records as we have
deemed necessary to enable us to express an opinion on the matters covered
hereby. In rendering this opinion, we have (a) assumed (i) the genuineness of
all signatures on all documents examined by us, (ii) the authenticity of all
documents submitted to us as originals and (iii) the conformity to original
documents of all documents submitted to us as photostatic or conformed copies
and the authenticity of the originals of such copies; and (b) relied on (i)
representations, statements and certificates of public officials and others and
(ii) as to matters of fact, statements, representations and certificates of
officers and representatives of the Registrant.
<PAGE>
Based upon the foregoing, we are of the opinion that the
Shares are validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving the foregoing consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP
---------------------------------------
Kramer Levin Naftalis & Frankel LLP
SETTLEMENT AGREEMENT
This Stipulation of Settlement (hereinafter, the "Agreement") is
made and entered into by and between Internet Commerce Corporation, a Delaware
corporation, formerly known as Infosafe Systems, Inc. ("ICC"), Arthur R. Medici,
individually ("Medici"), and Dr. Robert H. Nagel, individually ("Nagel")
(collectively, the "Parties"), to resolve Infosafe Systems Inc. v. Robert H.
Nagel, AAA #13-160-00500-97 and Robert H. Nagel v. Arthur R. Medici, pending
before the U.S. District Court for the Southern District of New York, Case No,
98-CV-2243 (SWK) (together, the "Actions").
WHEREAS, the Parties are each desirous of finally, conclusively and
forever resolving the Actions (the "Settlement");
AND WHEREAS, the Parties, each acting on its own behalf, as the case
may be, have approved the settlement terms described below:
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the Parties agree as follows:
1. ICC will deliver to Nagel:
(a) $60,000 upon the closing, after satisfaction of all
necessary regulatory and stockholder approvals, of ICC's
private placement of its Series A Preferred Stock
pursuant to Regulation D under the Securities Act of
1933 (the "Private Placement"). It is currently
contemplated that such closing will occur by March 8,
1999; and
(b) 22,000 shares of Class A Common Stock of ICC to be
registered for resale on a selling security holder
"shelf" registration statement (the "Resale Registration
Statement") to be filed with the Securities and Exchange
Commission after the closing of the Private Placement.
It is agreed that such 22,000 shares of Class A Common
Stock will be issued on the date of execution of this
Agreement, but will be issued by ICC to Nagel after the
effective date of the Resale Registration Statement as
securities eligible for resale pursuant thereto. Nagel
agrees that he will not, without ICC's prior written
consent (which may be granted or withheld in ICC's sole
discretion) sell or transfer such 22,000 shares of Class
A Common Stock until the expiration of the ninety-day
period following the effective date of the Resale
Registration Statement. If the Resale Registration
Statement is not deemed effective on or before June 30,
1999, then the Agreement is null and void at the option
of Nagel. If Nagel exercises such option, the $60,000
paid pursuant to paragraph 1(a), plus interest at the
rate of 9% per annum from the date of payment, shall be
an offset against any
<PAGE>
amount owed by ICC arising from the arbitral award in
Infosafe Systems, Inc. v. Robert H. Nagel, AAA No.
13-160-00500-97.
2. The Parties will execute mutual General Releases, which
General Releases shall be held in escrow by Schnader Harrison Segal & Lewis LLP,
pending delivery of the funds and stock referred to in paragraph 1 of this
Agreement.
3. The Parties will execute a Stipulation of Dismissal of the
case captioned Robert H. Nagel v. Arthur R. Medici, United States District
Court, Southern District of New York, Case No. 98-CV-2243 (SWK), which
Stipulation of Dismissal shall be held in escrow by Schnader Harrison Segal &
Lewis LLP pending delivery of the funds and stock referred to in paragraph 1 of
this Agreement.
4. Confidentiality. This Agreement and the terms and
conditions of the Settlement of the disputes among the Parties shall remain
strictly CONFIDENTIAL. Each party agrees that neither they nor their agents will
disclose any information concerning this Agreement and related discussions to
any third party at any time, except with respect to ICC, such of its management
staff and administrative employees having a need to know; and with respect to
ICC, their respective attorneys and tax advisors (all the foregoing having first
been informed of these requirements having agreed to be bound by them) or if
compelled to do so by rule or regulation or under subpoena or other judicial
process; Nagel and Medici agree that they will not reveal or discuss the terms
and conditions of this Agreement to anyone except their spouse or children,
accountant or financial advisor, attorney and any tax or regulatory authorities
which may require such disclosure.
5. Non-Disparagement. The Parties agree that they will not
directly or indirectly make any statement to any person or entity that could be
interpreted by a reasonable person as tending to disparage the professional
reputation of ICC, Medici or Nagel or any entity related to ICC, or the personal
or professional reputation of ICC's respective officers, employees or agents.
This provision is not intended to restrict competition of either party against
the other, but is merely intended to govern the manner of any competition
between them.
6. Non-Admission. With regard to the action pending before the
U.S. District Court for the Southern District of New York, Robert H. Nagel v.
Arthur R. Medici, Case No. 98-CV-2243 (SWK), neither the negotiation,
undertaking, agreement to provide, nor the actual provision of the consideration
set forth in this Agreement, nor the drafting or execution of this document
shall in any way be construed as an acknowledgment or an admission by either
party of any liability to the other or any other individual or entity, or an
acknowledgment or admission of any wrongdoing whatsoever under federal, state or
local law. Both parties specifically deny any such liability or wrongdoing.
7. Waiver and Reinstatement. Nagel hereby waives any rights he
may have to reinstatement and agrees and promises that he will never apply for
or seek employment with ICC at any time. ICC and its successors shall have the
option of waiving it/their rights under this Paragraph.
2
<PAGE>
8. Entire Agreement. This Agreement constitutes the complete
understanding between the parties concerning all matters as between Nagel and
Medici and Nagel and ICC and supersedes any prior employment agreement Nagel may
have had with ICC, the provisions of any ICC personnel documents, handbooks or
policies and any prior customs or practices of ICC.
9. Governing Law Successors and Assigns. This Agreement shall
be governed and construed in accordance with the laws of New York and shall be
binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the Parties executed this Agreement on the
date set forth below.
INTERNET COMMERCE CORPORATION
By: /s/ Richard J. Berman
---------------------------------
Its: Chairman & CEO
---------------------------------
/s/ ARTHUR R. MEDICI
- --------------------------------- -----------------------------
Attest: ARTHUR R. MEDICI
/s/ DR. ROBERT H. NAGEL
- --------------------------------- -----------------------------
Attest: DR. ROBERT H. NAGEL
3
Exhibit 10.14
REVISED SETTLEMENT AGREEMENT
This Revised Stipulation of Settlement (the "Agreement") is made and
entered into by and between Internet Commerce Corporation, a Delaware
corporation, formerly known as Infosafe Systems, Inc. ("ICC"), Arthur R. Medici,
individually ("Medici"), and Dr. Robert H. Nagel, individually ("Nagel")
(collectively, the "Parties"), to resolve Infosafe Systems, Inc. v. Robert H.
Nagel, AAA #13-160-00500-97 and Robert H. Nagel v. Arthur R. Medici, pending
before the U.S. District Court for the Southern District of New York, Case No.
98-CV-2243 (SWK) (together, the "Actions").
WHEREAS, the Parties are each desirous of finally, conclusively and
forever resolving the Actions (the "Settlement");
AND WHEREAS, the Parties, each acting on its or his own behalf, as
the case may be, have approved the settlement terms described below:
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the Parties agree as follows:
1. ICC will deliver to Nagel:
(a) $60,000 by April 22, 1999. In the event that ICC does
not pay $60,000 on or prior to April 22, 1999, then the
Agreement is null and void at the option of Nagel; and
(b) 22,000 shares (the "Shares") of Class A Common Stock of
ICC to be registered for resale on a selling security
holder "shelf" registration statement (the "Resale
Registration Statement") to be filed with the Securities
and Exchange Commission. It is agreed that the Shares
will not be issued on the date of execution of this
Agreement, but will be issued within 3 business days of
the effective date of the Resale Registration Statement;
provided, however, that, if ICC declares a dividend on
its Class A Common Stock payable in-kind, or effects a
split on such Class A Common Stock (in each case, prior
to the effective date of the Resale Registration
Statement), Nagel shall be entitled to the same benefits
as any other holder of Class A Common Stock as if he
owned the Shares at the time of such dividend or split.
Nagel agrees that he will not, without ICC's prior
written consent (which may be granted or withheld in
ICC's sole discretion) sell or transfer the Shares until
the expiration of 90 days following the effective date
of the Resale Registration Statement. If the Resale
Registration Statement is not declared effective on or
before September 10, 1999, then the Agreement is null
and void at the option of Nagel. If Nagel exercises such
option, the $60,000 paid pursuant to
<PAGE>
paragraph 1(a) shall be an offset against any amount
owed by ICC arising from the arbitral award in Infosafe
Systems, Inc. v. Robert H. Nagel, AAA No.
13-160-00500-97.
2. Delivery of Funds and Stock to Nagel. Pursuant to Nagel's
request, the $60,000 paid to Nagel pursuant to paragraph 1(a) shall be delivered
to Nagel by delivering a check payable to Morley and Trager as attorneys for
Nagel. Two certificates representing the Shares shall be delivered, as set forth
above, to Morley and Trager as follows: 16,500 Shares registered in the name of
Robert H. Nagel and 5,500 Shares in the name of Leslie Trager.
3. The Parties have executed mutual General Releases, which General
Releases are and shall be held in escrow by Schnader Harrison Segal & Lewis LLP,
pending delivery of the funds and the Shares.
4. The Parties have executed a Stipulation of Dismissal of the case
captioned Robert H. Nagel v. Arthur R. Medici, United States District Court,
Southern District of New York, Case No. 98-CV-2243 (SWK), which Stipulation of
Dismissal is and shall be held in escrow by Schnader Harrison Segal & Lewis LLP
pending delivery of the funds and the Shares.
5. Confidentiality. This Agreement and the terms and conditions of
the Settlement shall remain strictly CONFIDENTIAL. Each party agrees that
neither they nor their agents will disclose any information concerning the
Agreement and related discussions to any third party at any time, except with
respect to ICC, such of its management staff and administrative employees having
a need to know and their respective attorneys and tax advisors (all the
foregoing having first been informed of these requirements having agreed to be
bound by them) or if compelled to do so by rule or regulation or under subpoena
or other judicial process; Nagel and Medici agree that they will not reveal or
discuss the terms and conditions of this Agreement to anyone except their spouse
or children, accountant or financial advisor, attorney and any tax or regulatory
authorities which may require such disclosure.
6. Non-Disparagement. The Parties agree that they will not directly
or indirectly make any statement to any person or entity that could be
interpreted by a reasonable person as tending to disparage the professional
reputation of ICC, Medici or Nagel or any entity related to ICC, or the personal
or professional reputation of ICC's respective officers, employees or agents.
This provision is not intended to restrict competition of either party against
the other, but is merely intended to govern the manner of any competition
between them.
7. Non-Admission. With regard to the action pending before the U.S.
District Court for the Southern District of New York, Robert H. Nagel v. Arthur
R. Medici, Case No. 98-CV-2243 (SWK), neither the negotiation, undertaking,
agreement to provide, nor the actual provision of the consideration set forth in
this Agreement, nor the drafting or execution of this document shall in any way
be construed as an acknowledgment or an admission by either party of any
liability to the other or any other individual or entity, or an acknowledgment
or admission of any wrongdoing whatsoever under federal, state or local law.
Both parties specifically deny any such liability or wrongdoing.
2
<PAGE>
8. Waiver and Reinstatement. Nagel hereby waives any rights he may
have to reinstatement and agrees and promises that he will never apply for or
seek employment with ICC at any time. ICC and its successors shall have the
option of waiving its/their rights under this Paragraph.
9. Entire Agreement. This Agreement constitutes the complete
understanding between the parties concerning all matters as between Nagel and
Medici and Nagel and ICC and supersedes the Settlement Agreement previously
executed by ICC, Nagel and Medici, as well as any prior employment agreement
Nagel may have had with ICC, the provisions of any ICC personnel documents,
handbooks or policies and any prior customs or practices of ICC.
10. Governing Law, Successors and Assigns. This Agreement shall be
governed and construed in accordance with the laws of New York and shall be
binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the Parties executed this Agreement on the date
set forth below.
INTERNET COMMERCE CORPORATION
By: /s/ Richard J. Berman
--------------------------------
Its: Chairman and CEO
--------------------------------
- ------------------------------ /s/ Arthur R. Medici
Attest: ---------------------------
- ------------------------------ /s/ Dr. Robert H. Nagel
Attest: ---------------------------
3
Exhibit 10-15
SCHNADER HARRISON
SEGAL & LEWIS LLP
ATTORNEYS AT LAW
14TH FLOOR o 330 MADISON AVENUE o NEW YORK, NEW YORK
10017-3092 212-973-8000 o FAX 212-972-8798
http://www.schnader.com
Benjamin P. Deusch August 26, 1999
Direct Dial: 212-973-8014
VIA FACSIMILE
Leslie Trager, Esquire
Morley and Trager
230 Park Avenue - Suite 935
New York, NY 10169
Re: Infosafe v. Nagel/Nagel v. Medici
98 Civ. 2243 (SWK) and AAA No. 13-160-00500-97
Dear Les:
Pursuant to our conversation, this will confirm that the parties in
the matters referenced above have agreed to amend the Revised Settlement
Agreement. Specifically, Paragraph 1(b) shall now read:
"22,000 shares (the "Shares") of Class A Common Stock of ICC to be
registered for resale on a selling security holder "shelf"
registration statement (the "Resale Registration Statement") to be
filed with the Securities and Exchange Commission. It is agreed that
the Shares will not be issued on the date of execution of this
Agreement, but will be issued within 3 business days of the
effective date of the Resale Registration Statement; provided,
however, that, if ICC declares a dividend on its Class A Common
Stock payable in-kind, or effects a split on such Class A Common
Stock (in each case, prior to the effective date of the Resale
Registration Statement), Nagel shall be entitled to the same
benefits as any other holder of Class A Common Stock as if he owned
the Shares at the time of such dividend or split. Nagel agrees that
he will not, without ICC's prior written consent (which may be
granted or withheld in ICC's sole discretion) sell or transfer the
Shares until the expiration of 42 days following the effective date
of the Resale Registration Statement. If the Resale Registration
Statement is not declared effective on or before October 28, 1999,
then the Agreement is null and void at the option of Nagel. If Nagel
exercises such
<PAGE>
Leslie Trager, Esquire
August 26, 1999
Page 2
option, the $60,000 paid pursuant to paragraph 1(a) shall be an
offset against any amount owed by ICC arising from the arbitral
award in Infosafe Systems, Inc. v. Robert H. Nagel, AAA No.
13-160-00500-97."
Notwithstanding the amendment to Paragraph 1(b), all other terms
comprising the Revised Settlement Agreement and any other agreement between the
parties shall remain in full force and effect.
If you agree with the content of this letter, please sign below
and return to me at your earliest convenience. Upon receipt, I will advise the
Court, in writing, that we have reached an agreement and that the September 20,
1999 trial date can be adjourned to a date after October 31, 1999.
Very truly yours,
/s/ Benjamin P. Deutsch
-----------------------
Benjamin P. Deutsch
For SCHNADER HARRISON SEGAL & LEWIS LLP
AGREED
/s/ Leslie Trager
- --------------------------------- ------
Attorney for Respondent/Plaintiff (Date)
Robert H. Nagel
Exhibit 23(ii).1
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference the Registration Statement on Form S-3
of Internet Commerce Corporation (formerly Infosafe Systems Inc.) of our report
dated September 23, 1998 (September 25, 1998 with respect to Note A, October 23,
1998 with respect to Note L and October 28, 1998 with respect to Note J[3]),
relating to the consolidated balance sheet of Internet Commerce Corporation
(formerly Infosafe Systems Inc.) and subsidiary as of July 31, 1998, and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for each of the years in the two-year period ended July 31, 1998
and for the period from November 18, 1991 (inception) through July 31, 1998,
which report appears in the July 31, 1998 annual report on Form 10- KSB of
Internet Commerce Corporation (formerly Infosafe Systems Inc.) and subsidiary.
Our report dated September 23, 1998 (September 25, 1998 with respect to Note A,
October 23, 1998 with respect to Note L and October 28, 1998 with respect to
Note J[3]), contains an explanatory paragraph that states that the Company is in
the development stage and has incurred operating losses since inception which
raise substantial doubt about the Company's ability to continue as a going
concern. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
/s/ Richard A. Eisner & Company, LLP
New York, New York
October 21, 1999
