SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 30, 1999
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INTERNET COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
Commission file number 000-24996
Delaware 13-3645702
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
805 Third Avenue, New York, NY 10022
(Address of principal executive offices)
(Zip Code)
(212) 271-7640
(Registrant's telephone number, including area code)
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INTERNET COMMERCE CORPORATION
FORM 8-K
CURRENT REPORT
TABLE OF CONTENTS
Item 5. Other Events............................................3
Item 7. Exhibits................................................4
Signature..............................................................5
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Item 5. OTHER EVENTS
Internet Commerce Corporation (the "Company") today announced that Dr. Geoffrey
S. Carroll was hired under a three-year agreement as the Company's new President
and Chief Executive Officer. Richard J. Berman, the former Chief Executive
Officer, will remain Chairman of the Board of the Company. Dr. Carroll's initial
salary is $200,000 per year, increasing to $350,000 per year on the earlier of
November 1, 1999 or completion of a funding transaction. Dr. Carroll will also
be eligible to receive an annual performance bonus to be awarded in the
discretion of the Compensation Committee of the Board of Directors of the
Company. In addition, Dr. Carroll has been granted options to purchase 300,000
shares of the Class A Common Stock (the "Common Stock") of the Company at an
exercise price of $13.00 per share, of which options one-third are exercisable
immediately and the balance are exercisable commencing on January 1, 2000,
provided that one-third of such options shall only be exercisable if the average
closing price for the Common Stock for any five consecutive trading days exceeds
$15.00 and the remaining one-third of such options shall only be exercisable if
the average closing price for the Common Stock for any five consecutive trading
days exceeds $20.00. Dr. Carroll has also been granted immediately exercisable
options to purchase (i) 50,000 shares of Common Stock exercisable at $40 per
share, (ii) 50,000 shares of Common Stock exercisable at $60 per share, and
(iii) 50,000 shares of Common Stock exercisable at $80 per share. All of Dr.
Carroll's options expire on June 29, 2009. In the event of a change of control
of the Company, Dr. Carroll shall be entitled to receive a lump sum payment
equal to his aggregate remaining salary under his employment agreement.
The Company also announced that Donald R. Gordon has resigned as Chief Operating
Officer and Executive Vice President of the Company for personal reasons. Mr.
Gordon served the Company in these capacities for the past six months and will
pursue other interests.
In addition, the Company announced that Richard Blume has joined the Company
under a three-year agreement to replace Mr. Gordon as Chief Operating Officer
and Executive Vice President of the Company. Mr. Blume's initial salary is
$175,000 per year, increasing to $250,000 per year on completion of a funding
transaction. Mr. Blume will also be eligible to receive an annual performance
bonus to be awarded in the discretion of the Compensation Committee of the Board
of Directors of the Company. In addition, Mr. Blume has been granted options to
purchase 200,000 shares of Common Stock at an exercise price of $13.00 per
share, of which options one-third are exercisable immediately and the balance
are exercisable commencing on January 1, 2000, provided that one-third of such
options shall only be exercisable if the average closing price for the Common
Stock for any five consecutive trading days exceeds $15.00 and the remaining
one-third of such options shall only be exercisable if the average closing price
for the Common Stock for any five consecutive trading days exceeds $20.00. Mr.
Blume has also been granted immediately exercisable options to purchase (i)
30,000 shares of Common Stock exercisable at $40 per share, (ii) 30,000 shares
of Common Stock exercisable at $60 per share, and (iii) 30,000 shares of Common
Stock exercisable at $80 per share. All of Mr. Blume's options expire on June
29, 2009. In the event of a change of control of the Company, Mr. Blume shall be
entitled to receive a lump sum payment equal to his aggregate remaining salary
under his employment agreement.
The Board of Directors of the Company has adopted new By-laws, which are filed
as Exhibit 3.1 to this Current Report
On June 30, 1999 the Company commenced an offer to exchange shares of its Common
Stock for all of its outstanding Class A Warrants and Class B Warrants and
issued the press release with respect thereto which is filed as Exhibit 99.1 to
this Current Report.
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Item 7. EXHIBIT
3.1 Amended and Restated By-laws.
99.1 Press Release dated June 30, 1999.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 1, 1999
INTERNET COMMERCE CORPORATION
By: /s/ Richard J. Berman
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Richard J. Berman
Chairman of the Board of Directors
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BY-LAWS
OF
INTERNET COMMERCE CORPORATION
(A Delaware Corporation)
ARTICLE I
Stockholders
Section 1. Place of Meetings. Meetings of stockholders shall be held at
such place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. Annual meetings of stockholders shall be
held, from time to time, at such time fixed by the directors. If such day is a
legal holiday, then the meeting shall be held on the next following business
day. At each annual meeting the stockholders shall elect by a plurality vote the
number of directors equal to the number of directors of the class whose term
expires at such meeting (or, if fewer, the number of directors properly
nominated and qualified for election) to hold office until the third succeeding
annual meeting of stockholders after their election and shall transact such
other business as may be properly brought before the meeting, provided, however,
that at the first annual meeting of stockholders after the adoption of these
By-Laws, the stockholders shall elect by a plurality vote the initial Class I
directors, whose terms shall expire at the annual meeting of stockholders for
the year 2000, the initial Class II directors, whose terms shall
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expire at the annual meeting of stockholders for the year 2001 and the initial
Class III directors, whose terms shall expire at the annual meeting of
stockholders for the year 2002.
Section 3. Matters to be Considered at Annual Meetings. At any annual
meeting of stockholders or any special meeting in lieu of annual meeting of
stockholders (the "Annual Meeting"), only such business shall be conducted, and
only such proposals shall be acted upon as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stock-holder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the corporation entitled to vote
at such Annual Meeting on such business who complies with the requirements set
forth in this Section 3. In addition to any other applicable requirements, for
business to be properly brought before an Annual Meeting by a stockholder of
record of any shares of capital stock entitled to vote at such Annual Meeting,
such stockholder shall: (i) give timely notice as required by this Section 3 to
the Secretary of the corporation and (ii) be present at such meeting, either in
person or by a representative. A stockholder's notice shall be timely if
delivered to, or mailed to and received by, the corporation at its principal
executive office not less than 75 days nor more than 120 days prior to the
anniversary date of the immediately preceding Annual Meeting (the "Anniversary
Date"); provided, however, that in the event the Annual Meeting is scheduled to
be held on a date more than 30 days before the Anniversary Date or more than 60
days after the Anniversary Date, a stockholder's notice shall be timely if
delivered to, or
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mailed to and received by, the corporation at its principal executive office not
later than the close of business on the later of (A) the 75th day prior to the
scheduled date of such Annual Meeting, or (B) the 15th day following the day on
which public announcement of the date of such Annual Meeting is first made by
the corporation. For purposes of these By-Laws, "public announcement" shall
mean: (i) disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service, (ii) a report or other
document filed publicly with the Securities and Exchange Commission (including,
without limitation, a Form 8-K), or (iii) a letter or report sent to
stockholders of record of the corporation at the close of business on the day of
the mailing of such letter or report. A stockholder's notice to the Secretary
shall set forth as to each matter proposed to be brought before an Annual
Meeting: (i) a brief description of the business the stockholder desires to
bring before such Annual Meeting and the reasons for conducting such business at
such Annual Meeting, (ii) the name and address, as they appear on the
corporation's stock transfer books, of the stockholder proposing such business,
(iii) the class and number of shares of the corporation's capital stock
beneficially owned by the stockholder proposing such business, (iv) the names
and addresses of the beneficial owners, if any, of any capital stock of the
corporation registered in such stockholder's name on such books and the class
and number of shares of the corporation's capital stock beneficially owned by
such beneficial owners, (v) the names and addresses of other stockholders known
by the stockholder proposing such business to support such proposal and the
class and number of shares of the corporation's capital stock beneficially owned
by such other stockholders and (vi) any material interest of
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the stockholder proposing to bring such business before such meeting (or any
other stockholders known to be supporting such proposal) in such proposal. If
the Board of Directors or a designated committee thereof determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 3 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 3 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If neither the Board of Directors nor such committee makes
a determination as to the validity of any stockholder proposal in the manner set
forth above, the presiding officer of the Annual Meeting shall determine whether
the stockholder proposal was made in accordance with the terms of this Section
3. If the presiding officer determines that any stockholder proposal was not
made in a timely fashion in accordance with the provisions of this Section 3 or
that the information provided in a stockholder's notice does not satisfy the
information requirements of this Section 3 in any material respect, such
proposal shall not be presented for action at the Annual Meeting in question. If
the Board of Directors, a designated committee thereof or the presiding officer
determines that a stockholder proposal was made in accordance with the
requirements of this Section 3, the presiding officer shall so declare at the
Annual Meeting and ballots shall be provided for use at the meeting with respect
to such proposal. Notwithstanding the foregoing provisions of these By-Laws, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder with respect to the matters set forth in these By-Laws,
and nothing in these By-Laws shall be deemed to affect any rights of
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stockholders to request inclusion of proposals in the corporation's proxy
statement, or the corporation's right to refuse inclusion thereof, pursuant to
Rule 14a-8 under the Exchange Act.
Section 4. Special Meetings. Special meetings of the stockholders may
be called by the Board of Directors, the Chairman of the Board or the Chief
Executive Officer of the corporation.
Section 5. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and hour of the meeting shall be given by
or at the direction of the Board of Directors to each stockholder entitled to
vote at the meeting at least ten, but not more than sixty, days prior to the
meeting. Notice of any special meeting shall state in general terms the purpose
or purposes for which the meeting is called.
Section 6. Quorum; Adjournments of Meetings. The holders of a majority
of the issued and outstanding shares of the capital stock of the corporation
entitled to vote at a meeting, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at such meeting; but, if
there be less than a quorum, the holders of a majority of the stock so present
or represented may adjourn the meeting to another time or place, from time to
time, until a quorum shall be present, whereupon the meeting may be held, as
adjourned, without further notice, except as required by law, and any business
may be transacted at such meeting which might have been transacted at the
meeting as originally called.
Section 7. Voting. At any meeting of the stockholders every registered
owner of shares entitled to vote may vote in person or by proxy and, except as
otherwise
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provided by statute, in the Amended and Restated Certificate of Incorporation,
as amended, or these By-Laws, shall have one vote for each such share standing
in the stockholder's name on the books of the corporation. Except as otherwise
required by statute, the Amended and Restated Certificate of Incorporation, as
amended, or these By-Laws, all matters, other than the election of directors,
brought before any meeting of the stockholders shall be decided by a vote of a
majority in interest of the stockholders of the corporation present in person or
by proxy at such meeting and voting thereon, a quorum being present.
Section 8. Inspectors of Election. The Board of Directors, or, if the
Board shall not have made the appointment, the chairman presiding at any meeting
of stockholders, shall have power to appoint one or more persons to act as
inspectors of election at the meeting or any adjournment of such meeting, but no
candidate for the office of director shall be appointed as an inspector at any
meeting for the election of directors. Section 9. Chairman of Meetings. The
Chairman of the Board or, in the Chairman of the Board's absence, the Chief
Executive Officer, shall preside at all meetings of the stockholders. In the
absence of both the Chairman of the Board and the Chief Executive Officer, a
majority of the members of the Board of Directors present in person at such
meeting may appoint any other officer or director to act as chairman of the
meeting. Section 10. Secretary of Meetings. The Secretary of the corporation
shall act as secretary of all meetings of the stockholders. In the absence of
the Secretary, the chairman of the meeting shall appoint any other person to act
as secretary of the meeting.
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ARTICLE II
Board of Directors
Section 1. Number of Directors. The total number of directors
constituting the entire Board of Directors shall consist of not fewer than one
nor more than ten members; provided, however, that such number may from time to
time be increased or decreased by the Board of Directors or by the stockholders.
The directors shall be divided into three classes as nearly as equal in number
as possible. The initial Class I, II and III directors shall be elected at the
first annual meeting of stockholders after the adoption of these By-Laws. The
initial Class I directors shall serve until the second annual meeting of
stockholders after the adoption of these By-Laws. The initial Class II directors
shall serve until the third annual meeting of stockholders after the adoption of
these By-Laws. The initial Class III directors shall serve until the fourth
annual meeting of stockholders after the adoption of these By-Laws. Members of
each class of directors shall thereafter serve for terms of three years or until
their successors have been duly elected and qualified. Section 2. Vacancies.
Whenever any vacancy shall occur in the Board of Directors by reason of death,
resignation, removal, increase in the number of directors or otherwise, it may
be filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, until the next election of the class
for which such director shall have been chosen, or, if the Board has not filled
such vacancy, it may be filled by the stockholders.
Section 3. Removal. Any director or the entire Board of Directors may
be removed, but only for cause, by the holders of a majority of the shares then
entitled to vote at
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an election of directors, unless otherwise specified by law or the Amended and
Restated Certificate of Incorporation, as amended.
Section 4. First Meeting. The first meeting each year of the Board of
Directors, of which no notice shall be necessary, shall be held immediately
following the annual meeting of stockholders or any adjournment of such annual
meeting at the place the annual meeting of stockholders was held at which such
directors were elected, or at such other place as a majority of the members of
the Board who are then present shall determine, for the election or appointment
of officers for the ensuing year and the transaction of such other business as
may be brought before such meeting.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors, other than the first meeting, may be held without notice at such
times and places as the Board of Directors may from time to time determine.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by order of the Chairman of the Board, the Chief Executive Officer
or any two directors. Notice of the time and place of each special meeting shall
be given by or at the direction of the person or persons calling the meeting by
mailing the same at least three days before the meeting or by telephoning,
telegraphing or delivering personally or by facsimile or e-mail the same at
least twenty-four hours before the meeting to each director. Except as otherwise
specified in the notice of such meeting, or as required by statute, the Amended
and Restated Certificate of Incorporation, as amended, or these By-Laws, any and
all business may be transacted at any special meeting of the Board of Directors.
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Section 7. Place of Conference Call Meeting. Any meeting at which one
or more of the members of the Board of Directors or of a committee designated by
the Board of Directors shall participate by means of conference telephone or
similar communications equipment shall be deemed to have been held at the place
designated for such meeting, provided that at least one member is at such place
while participating in the meeting.
Section 8. Organization. Every meeting of the Board of Directors shall
be presided over by the Chairman of the Board, or, in the Chairman of the
Board's absence, the Chief Executive Officer. In the absence of the Chairman of
the Board and the Chief Executive Officer, a presiding officer shall be chosen
by a majority of the directors present. The Secretary of the corporation shall
act as secretary of the meeting, but, in the Secretary's absence, the presiding
officer may appoint any person to act as secretary of the meeting.
Section 9. Quorum; Vote. A majority of the directors then in office
(but in no event less than one-third of the total number of directors) shall
constitute a quorum, for the transaction of business, but less than a quorum may
adjourn any meeting to another time or place from time to time until a quorum
shall be present, whereupon the meeting may be held, as adjourned, without
further notice. Except as otherwise required by statute, the Amended and
Restated Certificate of Incorporation, as amended, or these By-Laws, all matters
coming before any meeting of the Board of Directors shall be decided by the vote
of a majority of the directors present at the meeting, a quorum being present.
Section 10. Action by Written Consent in Lieu of a Meeting. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any
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committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
ARTICLE III
Officers
Section 1. General. The Board of Directors shall elect or appoint the
officers of the corporation, which shall include a Chairman, a President, a
Secretary and a Treasurer and such other or additional officers (including,
without limitation, one or more Vice-Chairmen of the Board, Vice-Presidents,
Assistant Vice-Presidents, Assistant Secretaries and Assistant Treasurers) as
the Board of Directors may from time to time determine.
Section 2. Term of Office; Removal and Vacancy. Each officer shall hold
office at the pleasure of the Board of Directors and until such officer's
successor is elected or appointed and qualified or until the officer's earlier
resignation or removal. Any officer or agent shall be subject to removal with or
without cause at any time by the Board of Directors. Vacancies in any office,
whether occurring by death, resignation, removal or otherwise, may be filled by
the Board of Directors.
Section 3. Powers and Duties. Each of the officers of the corporation
shall, unless otherwise ordered by the Board of Directors, have such powers and
duties as generally pertain to the officer's respective office as well as such
powers and duties as fromtime to time may be conferred upon the officer by the
Board of Directors. Unless otherwise ordered
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by the Board of Directors after the adoption of these By-Laws, the President
shall be the chief executive officer of the corporation.
Section 4. Power to Vote Stock. Unless otherwise ordered by the Board
of Directors, the Chairman of the Board, the President and any Vice President
each shall have full power and authority on behalf of the corporation to attend
and to vote at any meeting of stockholders of any corporation in which this
corporation may hold stock, and may exercise on behalf of this corporation any
and all of the rights and powers incident to the ownership of such stock at any
such meeting and shall have power and authority to execute and deliver proxies,
waivers and consents on behalf of the corporation in connection with the
exercise by the corporation of the rights and powers incident to the ownership
of such stock. The Board of Directors, from time to time, may confer like powers
upon any other person or persons.
ARTICLE IV
Capital Stock
Section 1. Certificates of Stock. Certificates for stock of the
corporation shall be in such form as the Board of Directors may from time to
time prescribe and shall be signed by the Chairman of the Board or a Vice
Chairman of the Board or the President or a Vice-President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary.
Section 2. Transfer of Stock. Shares of capital stock of the
corporation shall be transferable on the books of the corporation only by the
holder of record thereof, in person or by duly authorized attorney, upon
surrender and cancellation of certificates for a
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like number of shares, with an assignment or power of transfer endorsed thereon
or delivered therewith, duly executed, and with such proof of the authenticity
of the signature and of authority to transfer, and of payment of transfer taxes,
as the corporation or its agents may require.
Section 3. Ownership of Stock. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the owner thereof
in fact and shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise expressly provided by
law.
ARTICLE V
Miscellaneous
Section 1. Corporate Seal. The seal of the corporation shall be
circular in form and shall contain the name of the corporation and the year and
State of incorporation.
Section 2. Fiscal Year. The Board of Directors shall have power to fix,
and from time to time to change, the fiscal year of the corporation.
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ARTICLE VI
Amendment
The Board of Directors shall have the power, without the assent or vote
of the stockholders, to make, alter, amend, change, add to or repeal the By-Laws
of the corporation subject to the power of the stockholders to alter or repeal
the By-Laws made or altered by the Board of Directors.
ARTICLE VII
Indemnification
The corporation shall indemnify to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time (the "DGCL"), each person that such Sections grant the corporation power to
indemnify.
ARTICLE VIII
Liability of Directors
No director shall be liable to the corporation or any of its
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, it being the intention of the
foregoing provisions to eliminate the liability of the corporation's directors
to the corporation or its stockholders to the fullest extent permitted by
Section 102(b)(7) of the DGCL.
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Internet Commerce Corporation Announces Commencement of Exchange Offer
for its Class A Warrants and Class B Warrants
NEW YORK, June 30, 1999 -- Internet Commerce Corporation (the "Company")
(NASDAQ: ICCSA) today announced that it has commenced an exchange offer to the
holders of its Class A Warrants (the "Class A Warrants") and Class B Warrants
(the "Class B Warrants," together with the Class A Warrants, the "Warrants") to
exchange shares of the Company's Class A Common Stock for such Warrants (the
"Exchange Offer"). As more fully described in the applicable Offering Circular,
the Company is offering to exchange one share of Class A Common Stock for each
eight Class A Warrants and one share of Class A Common Stock for each sixteen
Class B Warrants, upon the terms and subject to the conditions set forth in the
Offering Circular. The Company will accept any and all Warrants duly tendered
for exchange in the Exchange Offer. The Exchange Offer shall expire at 9:00
a.m., New York City time, on July 30, 1999, unless extended by the Company.
There can be no assurance that such Exchange Offer will be successful.
This announcement is neither an offer to purchase the Warrants, nor a
solicitation of an offer to sell or exchange the Class A Common Stock. The
offers are made solely by the Offering Circular, dated June 30, 1999, and are
subject to the terms and conditions specified therein.
The exchange agent for the Exchange Offer is American Stock Transfer and
Trust Company.
Holders of Warrants who have questions or requests for assistance should
call Morrow & Co., Inc., who has been retained by the Company as information
agent in the Exchange Offer, at (800) 566-9061. The Company has filed with the
Securities and Exchange Commission (the "Commission") a Schedule 13E-4, together
with all exhibits thereto (including the Offering Circular). Copies of the
Schedule 13E-4 and exhibits may be obtained from the Company or from the web
site maintained on the World Wide Web by the Commission at http://www.sec.gov.
About Internet Commerce Corporation
Internet Commerce Corporation develops and markets Internet-based
products and services to facilitate secure Electronic Commerce (EC) transactions
for commercial and governmental markets. ICC's expertise in business-to-business
commerce and electronic data interchange (EDI) provides easy-to-use,
sophisticated solutions for companies of all sizes for the transmission,
encryption, reporting and archiving of all electronic data.
