As filed with the Securities and Exchange Commission on February 7, 2000
Registration No. 333-93301
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
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
--------------------
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. |_|
<PAGE>
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|
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
<TABLE>
<CAPTION>
- ------------------------------ ------------------ ---------------------- ---------------------- -----------------------
Title of each class Amount Proposed Proposed maximum Amount
of securities to be to be maximum offering aggregate offering of registration
registered registered (1) price per share (2) price (2) fee (2)
- ------------------------------ ------------------ ---------------------- ---------------------- -----------------------
<S> <C> <C> <C> <C>
Class A Common Stock 955,289 $40.75 $38,928,027 $10,277
- ------------------------------ ------------------ ---------------------- ---------------------- -----------------------
</TABLE>
(1) Includes shares of class A common stock that are issuable upon conversion of
series A convertible redeemable preferred stock and upon exercise of warrants.
(2) 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 Small Cap Market reported on February 3, 2000. A
filing fee of $9,429.29 was previously paid in connection with the filing of the
Company's Registration Statement on Form S-3 filed on December 21, 1999.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION DATED FEBRUARY 7, 2000
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.
PROSPECTUS
INTERNET COMMERCE CORPORATION
o This prospectus relates to the public offering from time to time of up
to 955,289 shares of our class A common stock that may be sold by the
persons listed on pages 16 to 17 below. These persons 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 February 4, 2000, the last sale price for the common
stock was $47.75.
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 We filed a registration statement on form S-3 (file no. 333-80043)
which became effective on October 18, 1999 covering the resale of up to
5,476,280 shares of our common stock.
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 February 7, 2000
<PAGE>
TABLE OF CONTENTS
Page
Prospectus Summary........................................................... 3
Risk Factors................................................................. 5
Risks Relating to ICC...................................................... 5
Risks Relating to the Internet and Online Commerce Aspects of our Business. 9
Risks Relating to this Offering............................................ 10
Forward-Looking Statements................................................... 11
Use of Proceeds.............................................................. 12
Business..................................................................... 12
Selling Stockholders......................................................... 15
Plan of Distribution......................................................... 18
Description of Securities.................................................... 19
Legal Matters................................................................ 24
Experts...................................................................... 24
Where You Can Find More Information.......................................... 24
<PAGE>
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 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.
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Recent Developments
ICC has established a strategic global alliance with Cable & Wireless,
a global provider of Internet, data, voice and messaging services, to jointly
market and sell their respective product and service offerings in the
business-to-business e-commerce marketplace. Cable & Wireless will be entitled
to commissions for sales of ICC products and services based on quarterly target
levels to be agreed upon. These commissions will be payable in shares of class A
common stock valued at the then fair market value of such shares.
As part of these arrangements, Cable & Wireless purchased for $10
million 10,000 shares of a new series of convertible preferred stock of ICC that
is initially convertible into shares of class A common stock at $22.34 per
share. The average closing bid price of the class A common stock for the five
trading days before the definitive agreement was executed and delivered was
$22.21. The preferred stock is entitled to a four percent cumulative, annual
dividend, payable in cash or in kind at ICC's option, and votes together with
the class A common stock. Each share of preferred stock entitles Cable &
Wireless to a number of votes equal to the number of shares of class A common
stock into which the preferred stock is convertible. Cable & Wireless also
received 400,000 warrants to purchase class A common stock of ICC. The warrants
are exercisable for five years at $22.21.
ICC has agreed to elect a nominee of Cable & Wireless to its Board of
Directors and to allow Cable & Wireless to participate in any equity offering on
the same terms and conditions as other purchasers to maintain its percentage
interest in ICC.
ICC has completed an addition $9.5 million equity financing comprised
of commitments of $5 million from Acorn Investment Trust, $2.5 million from
Firstar Investment Research & Management, LLC and $2 million from Bantry Bay
Ventures. ICC has issued a total of approximately 434,000 shares of its Class A
Common Stock in this financing based on the market value of ICC's Class A Common
Stock on the dates ICC entered into definitive agreements with the investors.
These dates ranged from November 23 to 26, 1999.
The Offering
Class A common stock offered
by the selling stockholders......................................955,289 shares
Class A common stock to be
outstanding after the offering.............................5,465,036 shares (1)
Nasdaq SmallCap Market symbol.............................................ICCSA
- ---------------------------
(1) This information is based on the number of shares of class A common
stock outstanding on January 31, 2000. It includes all of the shares being
offered by this prospectus by the selling stockholders. It excludes (a)
2,564,852 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) 3,083,290 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 July 31, 1999, we had an
accumulated deficit of approximately $23.9 million. 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 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
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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.
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 have entered into an agreement under which we
sold shares of convertible preferred stock to Cable & Wireless for $10 million
and in December we sold in private placements a total of approximately 434,000
shares of our class A common stock for an aggregate of $9.5 million. See Recent
Developments on page 4 of this prospectus for more information about these
transactions. This financing may not be sufficient and 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.
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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.
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
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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 or similar protection. The applications to
register ICC.NET, AUDINET, COMMERCESENSE, B2B4B2C and B to B for B to C have now
been allowed as trademarks and await registration. We intend to apply for
additional name and logo marks in the United States and in foreign
jurisdictions. No assurance can be given that registrations will issue on the
non-allowed applications or that interested third parties will not petition the
United States Patent and Trademark Office to cancel our registration. We may not
be able to protect these trademarks. 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.
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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.
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 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
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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, 133,800 shares during the quarter
ended March 31, 1999, 116,500 shares during the quarter ended June 30, 1999,
75,800 shares during the quarter ended September 30, 1999, 576,621 shares during
the quarter ended December 31, 1999 and 660,250 shares for the period from
January 1, 2000 to January 28, 2000. 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 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.
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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. We intend to authorize a new
series of preferred stock in connection with our proposed transaction with Cable
& Wireless. See Recent Developments on page 4 of this prospectus for more
information about this transaction. Issuance of preferred shares with rights to
dividends and other distributions, 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
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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.
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.
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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.
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 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
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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.
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
We raised $7 million of cash proceeds and converted into equity
$2,595,000 of debt through the sale and exchange of series A preferred stock in
our private placement that was completed in April 1999. We issued a total of
9,595 shares of series A preferred stock in connection with this private
placement, some of which were issued to certain of the selling stockholders
named below.
Summerwind Restructuring, Inc. received 500,000 warrants as
consideration for various consulting services under a consulting agreement.
These consulting services included providing financial analysis, advice and
assistance to us in structuring our 1998 bridge financing. Summerwind
subsequently transferred 100,000 of these warrants to Mr. Ruel.
From June 1998 to January 1999 we issued 778,500 warrants to investors
that purchased units in connection with our 1998 bridge financing. These units
consisted of (1) a six month promissory note
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<PAGE>
bearing interest at an annual rate of 10% and (2) a three year warrant to
purchase three shares of our class A common stock for $2.50 per share for each
$10 principle amount of the promissory note included in the unit. Each unit was
purchased for the principle amount of the promissory note included in the unit.
In addition, we issued 66,600 warrants to placements agents in connection with
the our 1998 bridge financing and we issued 173,250 warrants to broker/dealers
in connection with our April 1999 private placement of Series A preferred stock.
See the section entitled "Warrants" under the heading Description of Securities
in this prospectus for further information.
Southeast Research Partners received 75,000 warrants pursuant to a
consulting agreement with ICC for services rendered commencing in October 1998.
The warrants were exchanged for 63,000 shares of class A common stock in July
1999.
On July 1, 1999 we issued 14,641 shares of class A common stock as a
dividend on the series A preferred stock to the holders of series A preferred
stock of record as of July 1, 1999 according to the provisions of the
certificate of designation for the series A preferred stock.
For further information about the convertible securities discussed in
this section, see Description of Securities on pages 19 to 24.
In the table below is information, as of January 31, 2000, regarding
the beneficial ownership of the shares by the selling stockholders. 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 5,465,036 shares of our class A common stock outstanding as of January
31, 2000, which includes all of the shares being offered by this prospectus by
the selling stockholders.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Common Stock
Number of Shares Number of Beneficially Owned
of Common Stock Shares of After Offering
Beneficially Owned Common Stock -----------------------
Selling Stockholders Before Offering Offered Number Percent
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BLUESTONE CAPITAL PARTNERS 28,202 28,202 0 *
Kerry Dukes
KARL BRENZA 14,298 14,298 0 *
MICHAEL A. BRESNER 400 400 0 *
BRIGHTON CAPITAL, LTD. 19,350 19,350 0 *
Jeff Wolin
STEPHEN N. CELLA 2,205 2,205 0 *
GERALD WILLIAM CRABBE 30,102 29,102 1,000 *
ROBERT H. DASKAL 400 400 0 *
CARMINE DEPALMA 16,500 16,500 0 *
NIKO DIMITROV 92,419 25,725 66,694 1.2
BRIAN FRIEDMAN 400 400 0 *
GKN SECURITIES CORP. 40,500 40,500 0 *
David Nussbaum
GERALD J. GOLDEN 250 250 0 *
JAY GOLDMAN 1,250 1,250 0 *
CRAIG GOULD 400 400 0 *
DAVID HANDLER 8,496 8,496 0 *
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Common Stock
Number of Shares Number of Beneficially Owned
of Common Stock Shares of After Offering
Beneficially Owned Common Stock -----------------------
Selling Stockholders Before Offering Offered Number Percent
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LAWRENCE S. ISAACSON 6,000 6,000 0 *
KENNETH A. JOHNSON 10,496 8,496 2,000 *
KENSINGTON CAPITAL 15,491 15,491 0 *
LIMITED
Graham Wilson
BRUCE KLEIN 5,135 5,135 0 *
JOHN D. LANE 32,241 32,241 0 *
PASQUALE M. LAVECCHIA 8,496 8,496 0 *
STEVEN LEVINE 1,250 1,250 0 *
MARTAN & CO. 2,295 2,295 0 *
Mike Silvestri
NATIONAL SECURITIES CORPORATION 3,000 3,000 0 *
Steven Rothstein
DAVID NUSSBAUM 1,250 1,250 0 *
OTATO LIMITED PARTNERSHIP 67,978 67,978 0 *
Ira Leventhal
STEPHEN J. POSNER 43,988 43,988 0 *
JOSEPH M. RAITI 16,966 15,966 300 *
RCG HALIFAX FUND, LTD. 84,971 84,971 0 *
Jeffrey M. Solomon
RG SECURITIES, LLC 5,000 5,000 0 *
Robert Scibelli
STEVEN A ROTHSTEIN 650 650 0 *
PETER RUEL 120,250 120,250 0 *
DOUGLAS SCHMIDT 32,991 32,991 0 *
JAMES SCIBELLI 42,486 42,486 0 *
SOUND HOLDINGS, LLC 201,638 201,638 0 *
Donald Casadonte
TIMOTHY VON F. STRAUS 33,988 33,988 0 *
TRANSVEST LTD. 8,496 8,496 0 *
Michael Donovan
CHARLES N. TRAVERS 15,996 15,996 0 *
JOHN A. VACARRO 750 750 0 *
WIN CAPITAL 8,977 8,977 0 *
Steve Bayern
</TABLE>
- ----------
* Less than 1%
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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;
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.
The selling stockholders also may resell all or a portion of the shares
offered by this prospectus in reliance upon Rule 144 under the Securities Act of
1933, provided that they meet the criteria and conform to the requirements of
that Rule.
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<PAGE>
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 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.
Except as noted in the next sentence, all of the selling stockholders
acquired their securities in the ordinary course of business and none of them
had any agreement or understanding, directly or indirectly, with any person to
distribute the securities at the time their securities listed above were
acquired. The following persons or entities are "underwriters" as defined in the
Securities Act of 1933 in connection with the sale of the shares offered by this
prospectus: Bluestone Capital Partners, GKN Securities Corp., Martan & Co.,
National Securities Corporation, RG Securities, LLC and Win Capital. Any
broker-dealers or agents that participate with these persons or entities in
sales of the shares may be considered to be "underwriters" within the meaning of
the Securities Act in connection with sales in which they participate. If any
broker-dealers or agents are considered to be "underwriters," then any
commissions they receive and any profit on the resale of the shares purchased by
them may be considered to be underwriting commissions or discounts under the
Securities Act.
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 23 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 January 31, 2000, there were 4,595,853 shares of class A common
stock outstanding, held of record by approximately 200 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
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<PAGE>
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.
Class B common stock
As of January 31, 2000, there were 89,595 shares of class B common
stock outstanding, held of record by seven 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 January 31, 2000, ICC had 1,683 shares of series A preferred
stock outstanding, held by approximately 22 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
75% of the average market price of the class A common stock for the ten trading
days before the conversion date. However,
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<PAGE>
o if 75% of the average market price is less than $3 per share,
the series A preferred stock provides that 75% of the average
market price will be considered to be $3 per share, which
results in a maximum of 333 shares which may be issued upon
conversion of one share of series A preferred stock; and
o if 75% of the average market price is greater than $5 per
share, the series A preferred stock provides that 75% of 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.
If all of the series A preferred stock were converted on January 31, 2000, a
maximum of 561,000 shares of class A common stock would be issued in this
conversion. The minimum and maximum conversion rates apply even if at the time
of conversion the class A common stock is not traded on The Nasdaq SmallCap
Market. 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 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 October 31, 1999, the shares in the
voting trust represented 17.3% of the total voting power of ICC. However, the
shares in the voting trust would currently represent only 5.8% of the total
voting power of ICC if all of the shares of class A common stock registered by
this registration statement and ICC's registration statement on form S-3
(Registration No. 333-80043) which became effective on October 18, 1999 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
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<PAGE>
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 January 31, 2000, there were 314,256 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 January 31, 2000, there were 309,403 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.
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
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<PAGE>
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 after one year from issuance 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
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.
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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.
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 financial statements as of July 31, 1999, as stated in their report,
included in our annual report on Form 10-KSB for the year ended July 31, 1999
which is incorporated in this prospectus by reference. Our 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.
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<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,
1999;
o Our quarterly report on form 10-QSB for the quarter ended
October 31, 1999;
o Our current reports on form 8-K dated December 1, 1999 and
December 13, 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 19 to 24 of this prospectus.
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.
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<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).............................$ 10,277
Nasdaq SmallCap Market listing fee (actual)...............$ 7,500
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 ........................................$ 723
Total.....................................................$ 23,000
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.
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
26
<PAGE>
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)
3(i).6* Certificate of Designations -- Series C Preferred Stock
4.1 Specimen Certificate for Class A Common Stock (3)
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)
<PAGE>
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)
4.12* Warrant Agreement dated January 12, 2000, by and among ICC and
Cable and Wireless USA, Inc.
4.13* Master Agreement dated November 23, 1999 by and among ICC and
Cable and Wireless PLC Corporation
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)
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 (8)
10.14 Revised Settlement Agreement between ICC, Arthur R. Medici and
Dr. Robert H. Nagel (8)
10.15 Amendment to the Revised Settlement Agreement between ICC,
Arthur R. Medici and Dr. Robert H. Nagel (8)
10.16 Second Amendment to the Revised Settlement Agreement between
ICC, Arthur R. Medici and Dr. Robert H. Nagel (8)
10.17 Master Agreement between Cable & Wireless PLC and ICC executed
on November 24, 1999 (9)
23(ii).1 Consent of Richard A. Eisner & Company, LLP
(b) Financial Statement Schedules:
Not Applicable.
* Filed herewith
(1) Incorporated by reference to the Company's Registration
Statement on Form S-3 (File no. 333-80043)
<PAGE>
(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)
(8) Incorporated by reference to the Company's Registration
Statement on Form S-3 (File no. 333-91885)
(9) Incorporated by reference to the Company's Current Report on
Form 8-K dated December 1, 1999
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.
(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.
<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
7th day of February, 2000.
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 February 7, 2000
- ----------------------------- Executive Officer
Dr. Geoffrey S. Carroll (Principal Executive Officer)
Director
/s/ Walter M. Psztur Chief Financial Officer February 7, 2000
- ----------------------------- (Principal Financial
Walter M. Psztur and Accounting Officer)
/s/ Richard J. Berman Director February 7, 2000
- -----------------------------
Richard J. Berman
/s/ G. Michael Cassidy Director February 7, 2000
- -----------------------------
G. Michael Cassidy
/s/ Michele Golden Director February 7, 2000
- -----------------------------
Michele Golden
Director February __, 2000
- -----------------------------
Charles C. Johnston
/s/ Arthur R. Medici Director February 7, 2000
- -----------------------------
Arthur R. Medici
Director February __, 2000
- -----------------------------
James Ortenzio
Director February __, 2000
- -----------------------------
Peter Ruel
Exhibit 3(i).6
Certificate of the Powers, Designations,
Preferences and Relative, Participating,
Optional and Other Special Rights of the
SERIES C CONVERTIBLE
REDEEMABLE PREFERRED STOCK
OF
INTERNET COMMERCE CORPORATION
and the Qualifications, Limitations
or Restrictions Thereof, Which
Have Not Been Set Forth in the
Certificate of Incorporation
or in Any Amendment Thereto.
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
The undersigned, Dr. Geoffrey S. Carroll, President and Chief Executive
Officer of INTERNET COMMERCE CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (hereinafter "the Corporation"), DOES
HEREBY CERTIFY:
That pursuant to authority conferred upon the Board of Directors of the
Corporation by the Certificate of Incorporation and pursuant to the provisions
of Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors of the Corporation, by unanimous written consent dated
December 28, 1999, duly adopted the following resolution:
RESOLVED, that, pursuant to the authority expressly granted to
and vested in the Board of Directors of the Corporation by the
provisions of its Certificate of Incorporation, the Board of Directors
of the Corporation hereby creates a series of Preferred Stock of the
Corporation to consist of 10,000 of the 5,000,000 shares of Preferred
Stock, $.01 par value per share, which the Corporation now has
authority to issue, and the Board of Directors of the Corporation
hereby fixes the designations, powers, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of
such series of Preferred Stock (in addition to the designations,
powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions
thereof, set forth in the Certificate of Incorporation of the
Corporation which are applicable to Preferred Stock of all series) as
follows:
1. Designation and Number. The distinctive designation of the series shall
be Series C Convertible Redeemable Preferred Stock (the "Series C
Preferred"); the number of shares of Series C Preferred which the
Corporation is authorized to issue shall be 10,000, which number may be
increased (but not above the total number of authorized shares of
-1-
<PAGE>
Preferred stock of the Corporation) or decreased (but not below the
number of shares then outstanding) from time to time by the Board of
Directors of the Corporation.
2. Definitions. For purposes of this Certificate of Designation, the
following terms shall have the meanings indicated.
(a) The term "Junior Stock" means the Series A Convertible Redeemable
Preferred Stock, par value $.01 per share, the Class A Common Stock,
par value $.01 per share, (the "Common Stock), the Class B Common
Stock, par value $.01 per share, and all those classes and series of
preferred or special stock and all those series of Preferred Stock
which, by the terms of the Certificate of Incorporation (as the same
may hereafter be amended) or of the instrument by which the Board of
Directors of the Corporation, acting pursuant to authority granted in
the Certificate of Incorporation (as the same may hereafter be
amended), shall designate the special rights and limitations of each
such class and series of preferred or special stock or series of
Preferred Stock, shall be subordinate to the Series C Preferred with
respect to the right of the holders thereof to receive dividends or to
participate in the assets of the Corporation distributable to
stockholders upon any liquidation, dissolution or winding-up of the
Corporation.
(b) the term "Market Price per share of Common Stock" for any Trading
Day means (i) the closing bid price for the Common Stock (as defined in
Section 7(g) hereof) on such Trading Day as published by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ")
(or, if such prices are not so published by NASDAQ, the average of the
high and low bid prices for the Common Stock on such Trading Day, as
furnished by any New York Stock Exchange member firm selected from time
to time by the Corporation for such purpose) or (ii), if the Common
Stock is then listed or admitted to trading on a national securities
exchange, the last sale price regular way for the Common Stock on such
Trading Day as reported in the consolidated transaction reporting
system for securities listed or traded on such exchange, or, in case no
such reported sale takes place on such Trading Day, the reported
closing bid price regular way for the Common Stock on such Trading Day
on the principal national securities exchange on which the Common Stock
is then listed or admitted to trading.
(c) the term "Trading Day" shall mean any day on which trading takes
place (i) in the over-the-counter market and prices reflecting such
trading are published by NASDAQ, or (ii) if the Common Stock is then
listed or admitted to trading on a national securities exchange, on the
principal national securities exchange on which the Common Stock is
then listed or admitted to trading.
3. Dividends. (a) The holders of the Series C Preferred shall be entitled
to receive cumulative dividends at, but not exceeding, the rate of four
percent (4%) per share per annum, payable annually on the first day of
January in each year, commencing with the first day of January, 2001,
in cash or duly authorized, fully paid and non-assessable shares of
Common Stock. In calculating the number of shares of Common Stock to be
paid as any dividend payable in shares of Common Stock, each share of
Series C Preferred shall be deemed to have a value of $1,000 and each
share of Common Stock to be paid as a dividend shall be deemed to have
a value equal to the average of the Market
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<PAGE>
Price per share of Common Stock for the ten (10) consecutive Trading
Days ending two (2) days prior to the payment date of such dividend.
Such dividends on the Series C Preferred shall accrue and be cumulative
with respect to any shares issued on or after the date of the initial
issuance of shares of Series C Preferred, so that the first dividend on
shares of Series C Preferred, payable on the first day of January 1,
2001, shall be in an amount per share (computed to the nearest whole
cent) determined by multiplying $40.00 by a fraction, the numerator of
which is the number of days from the date of the initial issuance of
shares of Series C Preferred to January 1, 2001, and the denominator of
which is 366. Such dividends on the Series C Preferred shall accrue and
be cumulative with respect to shares issued subsequent to January 1,
2001 from the dividend payment date next preceding the date on which
such shares are issued. Dividends shall accrue and be cumulative on a
day to day basis, whether or not earned or declared, on each share of
Series C Preferred from the date on which dividends thereon are
cumulative. Notwithstanding the foregoing, no fractional shares of
Common Stock shall be issued in the payment of dividends. Any dividend
distribution that would result in a holder of Series C Preferred being
entitled to a fraction of a share of Common Stock (after aggregating
all shares of Series C Preferred held by such holder) shall be payable
in cash, with the amount of cash to be determined by multiplying such
fraction by the Market Price per share of Common Stock on the Trading
Day that is two (2) days prior to the payment date of such dividend.
(b) So long as any Series C Preferred is outstanding, no dividends
whatever shall be paid or declared, nor shall any distribution be made,
on any Common Stock, other than a dividend or distribution payable in
Junior Stock or warrants or other rights to purchase Junior Stock,
unless all dividends on Series C Preferred for all past quarterly
dividend periods shall have been paid or declared.
4. Liquidation Preference. (a) The Series C Preferred shall be preferred
as to assets over all other classes or series of preferred or special
stock or series of Preferred Stock of the Corporation, whether
currently existing or created hereafter so that, in the event of any
liquidation, dissolution or winding up of the Corporation, the holders
of Series C Preferred shall be entitled to have set apart for them or
to be paid out of the assets of the Corporation before any distribution
is made to or set apart for the holders of any other class or series of
preferred or special stock or series of Preferred Stock, upon such
liquidation, dissolution or winding up, an amount in cash equal to, and
in no event more than, $1000.00 per share of Series C Preferred plus a
sum of money equal to all dividends accrued and unpaid thereon to the
date that payment is made available to the holders of Series C
Preferred. If, upon such liquidation, dissolution or winding-up of the
Corporation, the assets of the Corporation available for distribution
to the holders of its stock shall be insufficient to permit the
distribution in full of the amounts receivable as aforesaid by the
holders of Series C Preferred, then all such assets of the Corporation
shall be distributed ratably among the holders of Series C Preferred in
proportion to the amounts which each would have been entitled to
receive if such assets were sufficient to permit distribution in full
as aforesaid. Neither the consolidation nor merger of the Corporation
nor the sale, lease or transfer by the Corporation of all or any part
of its assets shall be deemed to be a liquidation, dissolution or
winding-up of the Corporation for the purposes of this Section 4.
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<PAGE>
5. Voting Rights. (a) Except as otherwise required by law or provided
herein, a holder of Series C Preferred shall be entitled (i) for each
share of Class C Preferred held, to the number of votes per share equal
to the number of whole shares of Common Stock into which each share of
Series C Preferred is convertible as of the record date for the
determination of stockholders entitled to vote, (ii) to vote on or
consent to all matters upon which the holders of Common Stock are
entitled to vote or consent, and (iii) to notice of any stockholders
meeting in accordance with the By-laws of the Corporation. Fractional
votes shall not be permitted and any fractional voting rights resulting
from the above formula (after aggregating all shares of Series C
Preferred held by each holder) shall be rounded to the nearest whole
number (with one-half being rounded upward). Except as otherwise
provided in the Certificate of Incorporation or as expressly required
by law, the holders of Series C Preferred and the holders of Common
Stock shall vote together as a single class on all matters presented to
stockholders and not as separate classes.
(b) The holders of Series C Preferred, voting as a class separately
from the holders of other stock, shall be entitled, at each annual
meeting of the stockholders or special meeting held in place thereof,
to elect one director; provided , however, that if the total number of
directors constituting the entire Board of Directors (exclusive of the
director elected by the holders of Series C Preferred) increases to
more than nine members, the holders of Series C Preferred, voting as a
class as aforesaid, shall be similarly entitled to elect two (2)
directors. Any director or directors elected by the holders of Series C
Preferred pursuant to this Section 5(b) shall (i) serve until the next
annual meeting of stockholders and until his or their respective
successor or successors have been duly elected and qualified; and (ii)
each have one vote and shall vote together with all other directors of
the Corporation, and not as a separate class, on all matters that
properly come before the Board of Directors.
6. Redemption of the Series C Preferred. (a) Subject to the provisions of
Section 6(b) hereof, the Corporation, at its option, may (except as
otherwise provided in Section 7 hereof) redeem, at any time after
January 1, 2005, the whole or, from time to time thereafter, any part
of the Series C Preferred at the redemption price of $1000.00 per
share, plus an amount in cash equal to all dividends accrued but unpaid
thereon to the date of redemption.
(b) Not less than fifteen (15) days nor more than forty-five (45) days
prior to the date fixed for any redemption of Series C Preferred, a
notice specifying the time and place thereof and the redemption price
shall be given by mail to the holders of record of the shares to be
redeemed at their respective addresses as shown on the stock records of
the Corporation. If less than all of the Series C Preferred then
outstanding are being redeemed, the notice of redemption mailed to each
holder of shares of Series C Preferred to be redeemed shall identify
the shares of Series C Preferred held by such holder to be redeemed. No
failure to mail such notice nor any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such
redemption except as to a holder (i) to whom the Corporation has failed
to mail such notice or (ii) whose notice was defective. An affidavit of
the Secretary of the Corporation (or of a transfer agent for the Series
C Preferred, if one has been appointed) that notice of redemption has
been mailed shall, in
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<PAGE>
the absence of fraud, be prima facie evidence of the facts stated
therein. The redemption notice shall also clearly state the date and
time by which the holders of the Series C Preferred Stock must exercise
any conversion rights under Section 7 hereof with respect to any shares
being called for redemption.
(c) From and after the date fixed in such notice and the date of
redemption (unless default be made by the Corporation in providing
moneys for the payment of the redemption price), all dividends on
shares of Series C Preferred thereby called for redemption shall cease
to accrue, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive payment of the redemption
price) shall cease.
(d) If the Corporation shall, with respect to shares of Series C
Preferred called for redemption, irrevocably deposit, in trust for the
account of the holders of shares of Series C Preferred to be redeemed,
a sum sufficient to redeem such shares upon surrender of certificates
therefor, then such shares which have been called for redemption shall
not be deemed to be outstanding shares for the purpose of voting or
determining the total number of shares entitled to vote on any matter
on and after the date on which written notice of redemption has been
sent to holders thereof and such deposit has been made. In the event
the holder of any such shares of Series C Preferred shall not, within
three years after the redemption date, claim the amount deposited for
the redemption thereof, the depositary shall, upon the request of the
Corporation, pay over to the Corporation such unclaimed amount. Any
moneys so deposited by the Corporation which shall not be required for
redemption because of the exercise of any right of conversion
subsequent to the date of the deposit, and any interest accrued on any
moneys so deposited, shall be repaid to the Corporation upon request.
(e) From and after the date specified for redemption, the Corporation
shall, at the place specified in the notice of redemption, upon
presentation and surrender to the Corporation by the holder thereof of
one or more certificates representing shares of Series C Preferred to
be redeemed, deliver or cause to be delivered to or upon the written
order of such holder a sum in cash equal to the redemption price of the
shares of such holder to be redeemed, together with, if the
certificate(s) presented and surrendered by such holder represent a
greater number of shares than the number of shares to be redeemed from
such holder, one or more new certificates registered in the name of
such holder and representing the shares of Series C Preferred not
redeemed.
(f) Shares of Series C Preferred redeemed pursuant to this Section 6 or
converted pursuant to Section 7 hereof shall thereupon be deemed
retired and shall resume the status of authorized but unissued shares
of Preferred Stock (without serial designation) and may, subject to the
provisions hereof, be reissued as shares of Series C Preferred or
shares of any other series of Preferred Stock as determined by the
Board of Directors of the Corporation.
7. Conversion.
(a) Subject to the provisions of Section 6 hereof regarding redemption
and to the terms and conditions of this Section 7, shares of Series C
Preferred shall be convertible,
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<PAGE>
at the option of the holder thereof (except that, in respect of any
such shares which shall have been called for redemption, such option
shall terminate at the close of business on the second full business
day prior to the date fixed for redemption unless the Corporation shall
default in the payment of the redemption price), into the number of
whole shares (calculated to the nearest whole share with 5/10ths of a
share being considered as nearer to the next higher whole share) of
fully paid and nonassessable Common Stock at the then applicable
conversion price fixed or determined pursuant to the provisions of
Section 7(d) hereof, each share of Series C Preferred being taken at
$1000.00 for the purpose of such conversion, by surrender of a
certificate or certificates for shares of Series C Preferred so to be
converted at the principal place of business of the Corporation to the
attention of the Secretary (or at such other place or places, or to
such other person's attention, as may be designated by the Corporation)
at any time during usual business hours, together with written notice
that the holder elects to convert all such shares of Series C
Preferred, or a stated number of shares thereof, in accordance with the
provisions of this Section 7. Such notice shall also state the name or
names (with addresses) in which the certificate or certificates for
Common Stock shall be issued.
(b) As promptly as practicable after exercise by any holder of such
holder's option to convert any shares of Series C Preferred pursuant to
the provisions of this Section 7, the Corporation shall deliver or
cause to be delivered to or upon the written order of such holder one
or more certificates representing the number of shares of Common Stock
issuable upon such conversion, issued in such name or names as such
holder may direct, together with, if the certificate(s) surrendered
evidence a greater number of shares than the number of shares to be
converted, one or more certificates evidencing the shares of Series C
Preferred not to be converted. Each such conversion shall be deemed to
have been made immediately prior to the close of business on the day
the option to convert is exercised, and all rights of the converting
holder as a holder of the shares of Series C Preferred surrendered for
conversion shall cease at such time and the person or persons in whose
name or names the certificate(s) for the shares of Common Stock
issuable upon conversion are to be issued shall be treated for all
purposes as having become the record holder or holders thereof at such
time.
(c) If the last day for the exercise of the conversion option be, in
the jurisdiction where the principal place of business of the
Corporation (or other place designated by the Corporation as a place
for conversion of shares of Series C Preferred) is located, a Saturday,
Sunday or legal holiday, then such conversion option may be exercised,
at the conversion price in effect on such last day, upon the next
succeeding day not a Saturday, Sunday or legal holiday in such
jurisdiction.
(d) The conversion price for shares of Series C Preferred shall be
$22.34 per share, provided that, if adjustment of the conversion price
is required pursuant to Sections 7(d)(i) or 7(d)(ii) hereof, the
conversion price shall be such adjusted price.
(i) In case any of the following shall occur:
(x) any reclassification or change in the
outstanding shares of Common Stock (other than a
change in par value, or from par value to no
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<PAGE>
par value, or from no par value to par value, or as a
result of a subdivision or combination);
(y) any consolidation or merger to which the
Corporation is a party (other than a merger in which
the Corporation is the surviving corporation and
which does not result in any reclassification of, or
change in, the outstanding shares of Common Stock);
or
(z) any sale or conveyance to another
corporation of the property of the Corporation as an
entirety or substantially as an entirety, other than
a sale/leaseback, mortgage or other similar financing
transaction, then, in each such case, appropriate
provision shall be made, effective as of the
effective date of any such reclassification, change,
consolidation, merger, sale or conveyance, as the
case may be, whereby the holders of Series C
Preferred then outstanding shall have the right to
convert such shares of Series C Preferred into the
kind and amount of shares of stock, other securities
or property, including cash, which would have been
receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock which would
have been issuable upon conversion of the shares of
Series C Preferred immediately prior to such
reclassification, change, consolidation, merger, sale
or conveyance. In connection with any provision made
pursuant to the terms of the preceding sentence,
provision shall also be made for adjustments which
shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 7.
The above provisions of this Section 7(d)(i) shall
similarly apply to successive reclassifications,
changes, consolidations, mergers, sales or
conveyances.
(ii) In case the Corporation shall at any time subdivide or
combine the outstanding shares of Common Stock issuable upon
conversion of the Series C Preferred, then, in each such case,
the conversion price in effect immediately prior to such
subdivision or combination shall, effective as of the
effective date of such subdivision or combination, be
proportionately decreased in the case of subdivision or
proportionately increased in the case of combination.
(e) Any determination as to whether an adjustment in the conversion
price in effect hereunder is required pursuant to Sections 7(d)(i) or
7(d)(ii) hereof, or as to the amount of any such adjustment, if
required, shall be final, binding and conclusive if made in good faith
by the Board of Directors of the Corporation.
(f) Whenever the conversion price is adjusted as provided in this
Section 7, then, in each such case, the Corporation shall mail, or
cause to be mailed, to the holders of Series C Preferred, of record not
more than ten (10) days before the date of mailing, a notice in writing
stating the adjusted conversion price then and thereafter effective
under the provisions hereof, the method of calculating such adjusted
conversion price shown in reasonable detail, and the facts on which
such calculation is based. An affidavit of the
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<PAGE>
Secretary of the Corporation (or of a transfer agent for the Series C
Preferred, if one has been appointed) that any such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
(g) As used in this Section 7, the term "Common Stock" shall mean and
include the Corporation's Class A Common Stock authorized on the date
of the original issue of shares of Series C Preferred and shall also
include any capital stock of any class of the Corporation thereafter
authorized which shall not be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
(h) No fractional shares of stock shall be issued upon the conversion
of any Series C Preferred. If the number of shares of Common Stock
issuable upon any such conversion would include a fraction of a share,
such number shall be rounded up to the next whole number of shares of
Common Stock.
(i) Upon any conversion, no adjustment shall be made for dividends on
the Series C Preferred surrendered for conversion or on the Common
Stock delivered.
(j) The Corporation will at all times reserve and keep available out of
its authorized but unissued stock, solely for the purpose of issue upon
conversion of the Series C Preferred, as provided in this Section 7,
such number of shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Series
C Preferred, and, upon the issuance thereof upon conversion, all in
accordance with the provisions hereof, such shares of Common Stock
shall be duly and validly issued, fully paid and nonassessable.
(k) Before taking any action which would cause an adjustment reducing
the conversion price below the then par value of the shares of Common
Stock, the Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may
validly and lawfully issue fully paid and nonassessable shares of
Common Stock at the conversion price as so adjusted.
(l) The issuance of certificates for shares of Common Stock shall be
made without charge for any tax in respect of such issuance. However,
if any such certificate is to be issued in a name other than that of
the holder of the converted Series C Preferred, the Corporation shall
not be required to issue or deliver any stock certificate or
certificates unless and until the holder has paid to the Corporation
the amount of any tax which may be payable in respect of any transfer
involved in such issuance or shall establish to the satisfaction of the
Corporation that such tax has been paid or is not due.
(m) In the event of (i) any taking by the Corporation of a record of
the holders of any class of securities for the purpose of determining
the holders of such securities who are entitled to receive any dividend
(other than a cash dividend) or other distribution on the Common Stock
or any right, warrant or option to subscribe for or purchase any shares
of Common Stock of any class or Convertible Securities, or (ii) any
reclassification or
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<PAGE>
recapitalization of the capital stock of the Corporation, any
consolidation or merger of the Corporation with or into another
corporation, any transfer of all or substantially all of the assets of
the Corporation to any other corporation, entity or person, or any
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation, the Corporation shall mail to each holder of Series C
Preferred at least ten (10) days prior to the date specified in such
notice, a notice specifying (A) the date on which any such record is to
be taken for the purpose of such dividend, distribution or rights, (B)
the date on which any such reclassification, recapitalization,
consolidation, merger, transfer, dissolution, liquidation, or winding
up is expected to come effective, and (C) the time, if any is to be
fixed, as to when the holders of record of Common Stock (or other
securities) shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding up.
8. General. (a) If any other class or series of preferred or special stock
or series of Preferred Stock, whether ranking prior to or on a parity
with or junior to Series C Preferred as to dividends, shall be created,
either by or pursuant to authority granted in the Certificate of
Incorporation (as the same may hereafter be amended), nothing in this
Certificate of Designations shall prevent the holders of any such other
class or series of preferred or special stock or series of Preferred
Stock from being given any powers, preferences and relative,
participating, optional and other special rights authorized by law and
the Certificate of Incorporation (as the same may hereafter be
amended); provided, however, that Series C Preferred shall have
priority and preference in liquidation over any other classes or series
of preferred or special stock or series of Preferred Stock, whether
existing currently or created hereafter, and shall have priority and
preference over the Common Stock and any other classes or series of
preferred or special stock or series of Preferred Stock created
hereafter, but shall be pari passu with the Series A Convertible
Redeemable Preferred Stock, with respect to the right to receive
dividends.
(b) The section headings contained in this Certificate of Designations
are for reference purposes only and shall not affect in any way the
meaning of this Certificate of Designations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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<PAGE>
THE UNDERSIGNED President and Chief Executive Officer of Internet
Commerce Corporation hereby makes this certificate, declaring and certifying
that this is the duly authorized act and deed of the Corporation and the facts
herein stated are true, and accordingly have hereunto set his hand this 5th day
of January, 2000.
INTERNET COMMERCE CORPORATION
By: _______________________________
Dr. Geoffrey S. Carroll
President and Chief Executive Officer
ATTEST:
By: ___________________________
Walter M. Psztur
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") NOR UNDER ANY STATE SECURITIES LAW AND NEITHER THIS WARRANT NOR ANY
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF MAY BE PLEDGED, SOLD,
ASSIGNED OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAW HAS BECOME EFFECTIVE WITH RESPECT
THERETO, OR (2) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL TO THE EFFECT
THAT REGISTRATION UNDER THE ACT OR APPLICABLE STATE SECURITIES LAW IS NOT
REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.
No. 2000W-1 400,000 Shares
Dated: January 12, 2000
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
OF
INTERNET COMMERCE CORPORATION
This is to Certify That, FOR VALUE RECEIVED, Cable & Wireless USA, Inc,
a District of Columbia corporation ("Holder"), is entitled to purchase, subject
to the provisions of this Warrant, from Internet Commerce Corporation, a
Delaware corporation ("Company"), four hundred thousand (400,000) fully paid,
validly issued and nonassessable shares of Class A Common Stock, par value $0.01
per share, of the Company ("Common Stock") at a price of $22.21 per share
(subject to adjustment pursuant to Paragraph (b)(i) hereof) at any time or from
time to time during the period beginning on the date hereof (the "Commencement
Date"), until the date which is sixty (60) months after such date (the
"Expiration Date"). The shares of Common Stock deliverable upon such exercise
are hereinafter sometimes referred to as "Warrant Shares" and the exercise price
of this Warrant to purchase one share of Class A Common stock, as the same may
from time to time be adjusted pursuant to the provisions hereof, is hereinafter
sometimes referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised in whole at any
time or in part from time to time on or after the Commencement Date and until
5:00 p.m., New York City Time, on the Expiration Date; provided, however, that
if such day is a day on which banking institutions in the State of New York are
authorized by law to close, then on the next succeeding day which shall not be
such a day. This Warrant may be exercised by presentation and surrender hereof
to the Company at its principal office, or at the office of its stock transfer
agent, if any, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price in the form of a wire transfer or
Federal funds check for the number of Warrant Shares specified in such form. As
soon as practicable after each such exercise hereof, but not later than five (5)
days from the date of such exercise, the Company shall issue and deliver to the
Holder a certificate or certificate for the Warrant Shares issuable upon such
exercise, registered in the name of the Holder or its designee. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation,
<PAGE>
execute and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt
by the Company of this Warrant at its office, or by the stock transfer agent of
the Company at its office, if any, in proper form for exercise, the Holder shall
be deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be physically delivered to the Holder.
(b) ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. (i) In
the event the Company shall, at any time or from time to time after the date
hereof, issue any shares of Common Stock as a stock dividend to the holders of
Common Stock, or subdivide or combine the outstanding shares of Common Stock
into a greater or lesser number of shares (any such issuance, subdivision or
combination being herein called a "Change of Shares"), then, and thereafter upon
each further Change of Shares, the Exercise Price in effect immediately prior to
such Change of Shares shall be changed to a price (including any applicable
fraction of a cent) determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such Change of
Shares and the denominator of which shall be the number of shares of Common
Stock outstanding immediately after giving effect to such Change of Shares. Such
adjustment shall be made successively whenever such an issuance is made.
(ii) Upon each adjustment of the Exercise Price pursuant to
Paragraph (b)(i) hereof, the total number of shares of Common Stock purchasable
upon the exercise of this Warrant shall be such number of shares (calculated to
the nearest tenth) purchasable at the Exercise Price in effect immediately prior
to such adjustment multiplied by a fraction, the numerator of which shall be the
Exercise Price in effect immediately prior to such adjustment and the
denominator of which shall be the Exercise Price in effect immediately after
giving effect to such adjustment.
(iii) In case of any reclassification, capital reorganization
or other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), or in
case of any sale or conveyance to another corporation of the property of the
Company as, or substantially as, an entirety (other than a sale/leaseback,
mortgage or other financing transaction), the Company shall cause effective
provision to be made so that Holder of this Warrant shall have the right
thereafter, by exercising this Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
that would have been purchased upon exercise in full of this Warrant immediately
prior to such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Paragraph (b). The Company
shall not effect any such consolidation, merger or sale
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<PAGE>
unless prior to or simultaneously with the consummation thereof the successor
(if other than the Company) resulting from such consolidation or merger or the
corporation purchasing assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Company, the
obligation to deliver to the Holder of this Warrant such shares of stock,
securities or property (including cash) as, in accordance with the foregoing
provisions, the Holder may be entitled to purchase and the other obligations of
the Company under this Warrant. The foregoing provisions shall similarly apply
to successive reclassifications, capital reorganizations and other changes of
outstanding shares of Common Stock and to successive consolidations, mergers,
sales or conveyances.
(iv) Irrespective of any adjustments or changes in the
Exercise Price or the number of shares of Common Stock purchasable upon exercise
of this Warrant, this Warrant certificate shall continue to express the Exercise
Price per share and the number of shares of Common Stock purchasable hereunder
as the Exercise Price per share and the number of shares of Common stock
purchasable therefor as were expressed in this Warrant certificate when the same
was originally issued.
(v) After each adjustment of the Purchase Price pursuant to
this Paragraph (b), the Company will promptly prepare a certificate signed by
the Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (1) the
Exercise Price as so adjusted, (2) the number of shares of Common Stock
purchasable upon exercise of this Warrant after such adjustment, and (3) a brief
statement of the facts accounting for such adjustment. The Company will promptly
cause a copy of such certificate to be sent by ordinary first class mail to the
Holder of this Warrant at his or its last address as it shall appear on the
registry books of the Company. No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity of any such
adjustment.
(c) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
this Warrant.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other warrants of like tenor and of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office or at the office of its stock transfer
agent, if any, with the assignment form annexed hereto duly executed and funds
sufficient to pay any transfer tax the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. As a condition of
such assignment, however, such assignee shall deliver to the Company an opinion
of counsel to the effect that registration of such transfer under the Securities
Act of 1933, as amended, and applicable state securities laws is not required.
This Warrant may be divided or combined with other warrants which carry the same
rights upon presentation hereof at the principal office of the Company or at the
office of its stock transfer
-3-
<PAGE>
agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed or mutilated shall be at
any time enforceable by anyone.
(e) HOLDER REPRESENTATIONS; RESTRICTIVE LEGEND. Holder hereby
acknowledges and agrees that: (i) Holder is an "accredited" investor within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"); (ii)
upon the exercise of this Warrant the Holder will acquire the Warrant Shares for
its account, for investment, and not in connection with the offer, sale or
distribution of the Warrant Shares, or any portion thereof or interest therein,
to others; (iii) Holder will not sell, transfer or otherwise dispose of any of
the Warrant Shares, or any interest therein, in violation of the registration
requirements of the Securities Act and will not engage in conduct which may
violate the registration requirements of any federal or state securities laws;
and (iv) Holder consents to the placing of a legend in substantially the
following form on the certificates representing the Warrant Shares, when issued,
to reflect the foregoing: THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") NOR UNDER ANY STATE SECURITIES LAW AND MAY
NOT BE PLEDGED, SOLD, ASSIGNED OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW HAS BECOME
EFFECTIVE WITH RESPECT THERETO, OR (2) RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL TO THE EFFECT THAT REGISTRATION UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAW IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.
(f) HOLDER NOT DEEMED STOCKHOLDERS. The Holder of this Warrant shall
not, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue or reclassification of stock, change of par value or
change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until the Holder shall have exercised this Warrant in
accordance with the provisions hereof.
(g) AGREEMENT OF WARRANT HOLDERS. The Holder of this Warrant, by his or
its acceptance thereof, consents and agrees with the Company that:
-4-
<PAGE>
(i) This Warrant is transferable only on the registry books of
the Company by the Holder thereof in person or by his or its attorney duly
authorized in writing and only if this Warrant certificate is surrendered at the
office of the Company, duly endorsed or accompanied by a proper instrument of
transfer satisfactory to the Company in its sole discretion, together with
payment of any applicable transfer taxes; and
(ii) The Company may deem and treat the person or entity in
whose or which entity's name this Warrant certificate is registered as the
holder and as the absolute, true and lawful owner of this Warrant for all
purposes, and the Company shall not be affected by any notice or knowledge to
the contrary.
(h) GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
principles of conflict of laws.
(i) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors and assigns, and the registered
Holder from time to time of this Warrant certificate. Nothing in this Warrant is
intended or shall be construed to confer upon any other person any right, remedy
or claim, in equity or at law, or to impose upon any other person any duty,
liability or obligation.
(j) NOTICE OF CERTAIN EVENTS. In case at any time:
(i) the Company shall pay any dividend or make any other
distribution, payable in cash, property or securities (other than Common Stock)
of the Company, to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any class or other
rights;
(iii) there shall be any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of the
Company, or consolidation or merger of the Company with, or sale of all or
substantially all its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the holder of this Warrant at
the address of such holder as shown on the books of the Company, of the date on
which (x) the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights, or (y) such
reclassification, reorganization, change, consolidation, merger, sale,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also specify the date as of which the holders of Common Stock
of record shall participate in said dividend, distribution or subscription
rights, or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, reorganization, change,
consolidation, merger, sale, dissolution, liquidation, or winding up, as the
case may be. Such written notice shall be
-5-
<PAGE>
given not less than ten (10) days prior to the record date or the date on which
the transfer books of the Company are closed in respect thereto in the case of
an action specified in clause (x) and at least ten (10) days prior to the date
the action in question in the case of an action specified in clause (y) is
expected to occur.
INTERNET COMMERCE CORPORATION
By:
-------------------------------------
Dr. Geoffrey S. Carroll
President and Chief Executive Officer
Attest:
Walter M. Psztur, Secretary
-6-
<PAGE>
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the
attached Warrant to the extent of purchasing ____ shares of Class A Common Stock
and hereby makes payment of _________ in payment of the full exercise price
therefor.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
----------------------------------------------
(Please typewrite or print in block letters)
Address
---------------------------------------------
Social Security No./Taxpayer ID No.
- ----------------------------------------------------
Signature
------------------------------------------
Dated
----------------------------------------------
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, _____________________ hereby sells,
assigns and transfers unto
Name _______________________________________________
(Please typewrite or print in block letters)
Address______________________________________________
the right to purchase shares Class A Common Stock represented by this Warrant to
the extent of _______ shares as to which such right is exercisable and does
hereby irrevocably constitute and appoint____________________________________
Attorney, to transfer the same on the books of the Company with full power of
substitution in the premises.
Date _____________________________
Signatures_______________________________
Exhibit 4.13
Master Agreement
Between
Cable & Wireless PLC and Internet Commerce Corporation
The Parties, Cable & Wireless PLC (C&W) and Internet Commerce Corporation (ICC),
have determined that there exists substantial synergies between both
organizations to expand their respective market efforts for Internet-based
services. As such, the Parties have agreed to this Master Agreement as the basis
for a resulting commercial relationship. This Master Agreement is subject to
both Parties obtaining their respective Management or Supervisory Board
approval, and, if relevant, regulatory approvals. Notwithstanding delays due to
public holidays, the Parties respective Board approvals will be obtained within
30 days after the execution of this Master Agreement. Other than those terms
explicitly outlined herein, no representations or warranties are expressed or
implied. All co-signed Addendums shall be agreed upon within 30 days of the
execution of this Agreement and will be deemed integral to this Master
Agreement.
1) STOCK PURCHASE AND RELATED TRANSACTIONS
a) C&W shall invest US ten million ($10,000,000.00) dollars in ICC. For good
and valuable consideration of this investment, ICC shall issue to C&W
10,000 Shares of Series C Convertible Preferred Stock in ICC. The closing
of the transaction will occur within 10 days after receiving Board
approvals.
b) The Series C Preferred Stock issued to C&W by ICC shall be convertible into
Class A Common Stock. Each share of Series C Preferred Stock is convertible
into a number of shares of Class A Common Stock determined by the following
formula: $1,000.00 divided by the daily average of the closing bid price of
ICC Common Stock for the five (5) trading days prior to the execution of
this Master Agreement plus $0.13 per share (the "Conversion Price").
The Series C Preferred Stock has a value of $1,000.00. The conversion price
will be adjusted for stock splits, dividends and combinations, mergers and
consolidations.
c) The per share voting rights of the Series C Preferred Stock shall be equal
to that of the number of shares of Class A Common Stock into which the
Series C Preferred Stock is convertible. At all times the Series C
Preferred Stock held by C&W shall vote as one class with ICC Class A Common
Stock. The Series C Preferred Stock shall be entitled to receive cumulative
dividends at a rate equal to 4% per share (as adjusted for subsequent stock
dividends, splits, recapitalizations and similar transactions). Such
dividends shall accrue whether or not declared and shall be paid in either
cash or shares of ICC Class A Common Stock at ICC's option; provided, that
such dividends are paid prior to and in preference to any distribution with
respect to the shares of Common Stock.
d) The Series C Preferred Stock issued to C&W shall have liquidation priority
and preference over any and all classes and series of ICC Capital Stock.
The liquidation value shall equal $1,000.00 per share plus accrued and
unpaid dividends.
e) At the closing, ICC shall issue 400,000 warrants for ICC Class A Common.
The exercise price for such warrants shall be the Conversion Price, less
$0.13 per share, as may be adjusted (the "Warrant Price"), and the warrants
shall have an initial term of 5 years from the date of issuance.
f) ICC agrees to issue to C&W additional stock for the attainment of set
quarterly revenue targets for the sales of ICC services. The number of
Shares in connection with this section 1(f) shall be equal to the result of
multiplying the gross amount of sales for ICC services sold by C&W by 5%.
The shares will be priced by the daily average of the closing bid price of
ICC stock for the 5 days prior to the end of each quarter. The basis for
the revenue calculation will be derived from the commissionable revenue
figure to be negotiated in the Reseller Addendums. Each outstanding share
of the Series C Preferred Stock is redeemable by ICC at a price of
$1,000.00 per share, plus any accrued and unpaid dividends (the "Redemption
Price"), commencing on the fifth anniversary of the date of issuance
thereof upon written notice to the holders of Series C Preferred Stock. No
such redemption shall diminish C&W's right to convert the Series C
Preferred Stock prior to the redemption date.
<PAGE>
Master Agreement
Between
Cable & Wireless PLC and Internet Commerce Corporation
g) C&W shall have right of first refusal to participate in any ICC equity
offering, on the same terms and conditions as other purchasers, to maintain
its percentage ownership of ICC.
h) In exchange for C&W investment in ICC and for other good and valuable
consideration, ICC shall grant C&W one seat on ICC's Board. ICC's approval
of the C&W candidate will not be unreasonably withheld. In the event ICC's
Board increases to more than nine members, ICC shall grant C&W an
additional seat on ICC's Board. ICC agrees that C&W's Board representation
shall at no time be less than one seat and shall increase roughly
proportionate to C&W's percentage ownership of ICC as such percentage
ownership may increase.
i) At the time of the issuance of the shares provided for in section 1, the
parties will enter into a Registration Rights Agreement providing demand
and piggyback registration rights with respect to all shares of Preferred
and Common Stock issued to C&W pursuant to this Master Agreement and all
shares issued upon the conversion of the Preferred Stock and the exercise
of the Warrants.
j) ICC represents and warrants that the information contained in its private
placement memorandum dated October 1999 is true and correct in all material
respects; that such private placement memorandum does not contain any
untrue statements of material fact or omit to state any material fact
required to make the statements therein not misleading; and that there has
been no material changes in the business, properties, financial condition
or results of operations of ICC. In addition, ICC represents and warrants
that the products described therein are all currently available for sale.
However, statements included in such private placement memorandum which are
not historical in nature are forward-looking statements made pursuant to
the safe harbor provisions of the Private Securities Litigation Reform Act
of 1995 including, without limitation, statements regarding the ability to
obtain financing, the hiring of new personnel, the Company's ability to
secure new business, and those factors highlighted in Internet Commerce
Corporation's Annual Reports on Form 10-K and Quarterly Reports on Form
10-Q, which could cause the Company's actual results to materially differ
from forward-looking statements made by the Company.
2) COMMERCIAL ACTIVITIES
a) The scope of this Agreement is intended to be global in nature and as such,
ICC and C&W shall endeavor to address the global markets together.
Therefore, ICC will utilize C&W IP and data networks and other services
(including hosting) to the greatest extent possible, consistent with ICC's
needs for redundant facilities, at rates no higher than C&W lowest rates to
comparable customers. C&W intention is to use ICC EDI services on a global
basis.
b) The Parties agree that the initial focus shall be on North America, Western
Europe, and Japan, with other C&W market activities to follow as resources
allow.
c) C&W will serve as a sales channel for ICC, and ICC will serve as a sales
channel for C&W, as either a reseller or as an agent and as C&W and ICC
shall mutually agree. ICC, at ICC's sole expense, shall co-locate dedicated
sales and support personnel at mutually determined C&W facilities as
requested by C&W Global Markets and which is reasonably required to attain
the sales goals referred to in section 2(e) herein. C&W shall seek to
provide office space and related support to ICC as may be required for
these activities. For the first 12 months of this Master Agreement, C&W
agrees to consider the provision of these services to be in-kind funding.
Thereafter, the cost associated with office provision and support shall be
negotiated country by country.
d) ICC shall compensate C&W for each sale of ICC services made by C&W sales
representatives as will C&W compensate ICC for each sale of C&W services
made by ICC sales representatives. For compensation purposes
<PAGE>
Master Agreement
Between
Cable & Wireless PLC and Internet Commerce Corporation
only, in the case where the Parties jointly make sales calls, Parties shall
split commissions on a basis to be mutually agreed upon.
<PAGE>
Master Agreement
Between
Cable & Wireless PLC and Internet Commerce Corporation
e) The Parties shall jointly develop a Global Schedule of Services and
Compensation (GSSC) that shall determine the service offerings, MFN pricing
structures and resulting compensation values. Subject to mutual prior
consent, which consent will not be unreasonably withheld, the Parties shall
be entitled to bundle the other's products with any product offer either
Party may develop. The GSSC shall include bundled service offerings wherein
the Parties will determine the percentage of revenues attributable to each
Party's contribution to the offering in order to calculate the applicable
compensation. The GSSC shall be incorporated into this Agreement by
reference and the Parties shall agree on any deviation from the terms of
the GSSC in advance.
f) ICC shall cooperate with C&W Global Operations to jointly develop and agree
upon a sales and market plan (SMP) for each global region enumerated above
in section 2(b) herein. The SMP shall include reasonable sales goals,
existing customer lead activity, new customer acquisition targets,
co-located ICC support headcount requirements and other issues that may be
required for the Parties to reach their sales goals during the first year
of the Agreement. The SMP shall be reviewed by the Parties on a quarterly
basis and measured against performance. Modifications mutually agreed upon
as a result of such reviews shall be incorporated into the SMP as
appropriate from time to time. The SMP shall be incorporated into this
Agreement by reference and the Parties shall agree on any deviation from
the terms of the SMP in advance.
g) Where additional product development efforts are necessary to launch and/or
support bundled offerings, the Parties will cooperate in performing such
additional efforts in a professional and timely manner. C&W may at its sole
option decline such request and ICC may decline such request if C&W is not
meeting sales targets established and agreed to in the SMP referenced in
section 2(e) above.
3) LENGTH OF TERM
a) The Initial Period of this Master Agreement shall commence upon the date
that both Parties receive the executed Master Agreement and shall continue
for a period of one (1) year. At C&W sole discretion, the Agreement shall
automatically renew on each anniversary thereof for additional one (1) year
Periods. Should C&W wish to terminate this Master Agreement, a 60 day
written notification is required.
b) During all Periods, C&W shall be ICC's exclusive Tier 1 provider for the
regions described in section 2(b) herein. The Parties shall develop a Tier
1 and Global Competitor List (GCL) that shall name those competitors
identified and agreed by the Parties. ICC agrees that it will not enter
into an agreement with any entity identified and incorporated into the GCL.
The GCL shall be incorporated into this Agreement by reference and the
Parties shall agree any modifications to the GCL in advance.
c) Following the expiration of the Initial Period, either Party, upon 60 days
written notice prior to the expiration of any subsequent Period, may
terminate the Agreement for cause as shall be described in an Addendum to
the Master Agreement. The Parties may at anytime mutually agree to an
earlier termination date. In the event that either party is notified of a
cause for discontinuance, the other party will have 60 days to cure the
alleged fault. Should the cure be deemed inadequate, the 60 day period for
termination of service will begin.
d) Notwithstanding any other provision after termination of the Agreement
should C&W desire to continue selling ICC's services, ICC agrees to provide
C&W with MFN terms and conditions for all ICC's services.
<PAGE>
Master Agreement
Between
Cable & Wireless PLC and Internet Commerce Corporation
4) MISCELLANEOUS
a) The Parties will co-develop relevant MARCOM materials. C&W shall retain
right of advance approval of any and all materials bearing reference to
C&W. As well, ICC shall retain right of advance approval of any and all
materials bearing reference to ICC. The Parties shall bear their individual
costs of the production of their own materials. Should ICC desire to use
C&W MARCOM materials, such materials in reasonable quantities shall be
provided to ICC at C&W cost. Should C&W wish to use or incorporate any ICC
MARCOM materials, it may do so with ICC's consent, such consent not to be
unreasonably denied.
b) The Parties will jointly develop and mutually agree upon a press
announcement pertaining to this Master Agreement. Additionally, it is
agreed that both parties shall jointly prepare a PR Strategy for the next
30, 60, 90 days of this relationship.
c) C&W will endeavor to provide in-kind support to ICC. The Parties shall
agree on pricing and terms ICC shall be required to pay to C&W before
commencement of such services will begin. A separate purchase agreement for
such services will be executed as appropriate.
d) This Master Agreement shall be governed by the laws and subject to the
jurisdiction of the Commonwealth of Virginia.
Cable & Wireless PLC Internet Commerce Corporation
Date: November 23, 1999 Date: November 23, 1999
By: _________________________ By:__________________________
Matthew Wolk Dr. Geoffrey S. Carroll
Vice President Strategic Business President and Chief Executive
Development Global Operations Officer
KRAMER LEVIN NAFTALIS & FRANKEL LLP
919 THIRD AVENUE
NEW YORK, N.Y. 10022 - 3852
FACSIMILE 47, Avenue Hoche
(212) 715-8000 75008 Paris
France
DIRECT NUMBER
(212) 715-9100
February 7, 2000
Internet Commerce Corporation
805 Third Avenue
New York, New York 10022
Re: Registration Statement on Form S-3 (File No.
333-93301)
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 955,289 shares (the "Shares") of Class A Common Stock, par value
$.01 per share, including shares which may be issued upon conversion of shares
of the Registrant's Series A Convertible Redeemable Preferred Stock (the "Series
A Preferred Stock") and upon exercise of warrants.
In connection with the registration of the Shares, we have
reviewed copies of the Registration Statement, the Amended and Restated
Certificate of Incorporation of the Registrant, as amended (the "Certificate of
Incorporation"), 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.
Based upon the foregoing, we are of the opinion that the
Shares covered by the Registration Statement are or, in the case of Shares
issuable upon conversion or exercise of Series A Preferred Stock and warrants,
will be, when issued in accordance with the terms of such Series A Preferred
Stock or warrants, as the case may be, validly issued, fully paid and
non-assessable.
<PAGE>
KRAMER LEVIN NAFTALIS & FRANKEL LLP
Internet Commerce Corporation
February 7, 2000
Page 2
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.
We do not express any opinion with respect to any law other
than the General Corporation Law of the State of Delaware and the federal laws
of the United States. Our opinion is rendered only with respect to the laws
which are currently in effect in such jurisdictions.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP
Exhibit 23(ii).1
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in Amendment No. 1 to the Registration
Statement on Form S-3 of Internet Commerce Corporation of our report dated
September 30, 1999 relating to our audit of the balance sheet of Internet
Commerce Corporation as of July 31, 1999, and the related statements of
operations, changes in stockholders' equity and cash flows for each of the years
in the two-year period ended July 31, 1999, included in the July 31, 1999 annual
report on Form 10-KSB of Internet Commerce Corporation. We also consent to the
reference to our firm under the caption Experts in the Registration Statement.
/s/ Richard A. Eisner & Company, LLP
New York, New York
February 7, 2000
