As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNET COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3645702
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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)
DR. GEOFFREY S. CARROLL
President and Chief Executive Officer
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. |_|
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|
<PAGE>
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
--------------------------------------------------------------------------------
Title of each class Amount Proposed Proposed Amount
of securities to be to be maximum maximum of registration
registered registered offering price aggregate fee (2)
(1) per share (2) offering price
(2)
--------------------------------------------------------------------------------
Class A Common
Stock, par value
$.01 per share 2,546,176 $ 3.164 $ 8,056,101 $ 2,126.81
--------------------------------------------------------------------------------
(1) Includes shares of class A common stock that are issuable upon exercise of
warrants.
(2) The proposed maximum aggregate offering price was estimated solely to
calculate the registration fee under Rule 457(c) of the Securities Act of 1933,
as amended, based upon the average of the highest and lowest prices per share of
the class A common stock on the Nasdaq National Market reported on December 20,
2000.
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>
The information in this prospectus is not complete and may be changed. The
selling securityholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION DATED DECEMBER 21, 2000
PROSPECTUS
INTERNET COMMERCE CORPORATION
o This prospectus relates to the public offering from time to time by the
persons listed on page 21 below, referred to in this prospectus as selling
stockholders, of up to 2,546,176 shares of our class A common stock.
o Our class A common stock is traded on the Nasdaq National Market under the
symbol ICCA. On December 20, 2000, the last sale price for the class A
common stock was $3.00.
o Any selling stockholder may sell the class A common stock on the Nasdaq
National Market or in privately negotiated transactions, whenever he
decides and at the price he sets. The price at which any of the shares of
class A 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 class A common stock, of which 885,650 shares have
not been sold as of the date of this prospectus.
o We filed a registration statement on form S-3 (file no. 333-93301) which
became effective on March 1, 2000 covering the resale of up to 955,289
shares of our class A common stock, of which 383,637 shares have not been
sold as of the date of this prospectus.
o We filed a registration statement on form S-3 (file no. 333-32674) which
became effective on April 6, 2000 covering the resale of up to 434,184
shares of our class A common stock, of which 377,906 shares have not been
sold as of the date of this prospectus.
o In connection with the IDC Merger (as defined below), we filed a
registration statement on form S-3 (file no. 333-45868) which became
effective on December 7, 2000 covering the resale of up to 238,579 shares
of our class A common stock, none of which shares have been sold as of the
date of this prospectus.
o This investment involves a high degree of risk. You should carefully
consider the risk factors beginning on page 7 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 December __, 2000
<PAGE>
TABLE OF CONTENTS
Page
Prospectus Summary......................................................... 3
Risk Factors............................................................... 7
Risks Relating to ICC................................................ 7
Risks Relating to the Internet and Online Commerce Aspects of our
Business ........................................................... 12
Risks Relating to this Offering..................................... 13
Forward-Looking Statements................................................ 15
Use of Proceeds............................................................ 16
Business....................................................................16
Selling Stockholders....................................................... 20
Plan of Distribution....................................................... 22
Description of Securities...................................................23
Legal Matters.............................................................. 29
Experts.................................................................... 29
Where You Can Find More Information........................................ 30
<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 7,
before making an investment decision.
Internet Commerce Corporation, or ICC
Business Description
Our ICC.NET (formerly named 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 ICC.NET 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 ICC.NET to provide the following services:
o Traditional VAN services -- our ICC.NET service 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 -- our ICC.NET service 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 -- our ICC.NET service 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 -- our
ICC.NET service 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 ICC.NET 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 ICC.NET 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
ICC.NET
-3-
<PAGE>
service will allow these companies to request or encourage their smaller
trading partners to conduct electronic commerce using our ICC.NET service.
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.
Recent Developments
Research Triangle Commerce, Inc. On June 14, 2000, ICC entered into an Agreement
and Plan of Merger, referred to as the RTCI Merger Agreement, among ICC, ICC
Acquisition Corporation, Inc., a newly-formed wholly-owned subsidiary of ICC,
Research Triangle Commerce, Inc., or RTCI, Jeffrey LeRose and Blue Water Venture
Fund II, L.L.C., or the Selling Shareholders. RTCI is an e-frastructure
solutions company serving the B2B e-commerce market. RTCI helps its clients
conduct business electronically through a continuum of services including
eConsulting, data transformation mapping (EDI, EAI, XML) and internetworking.
For the twelve months ended December 31, 1999, RTCI had total revenues of
approximately $6,666,000 and a net loss of approximately $2,963,000. Pro forma
financial statements for ICC and RTCI are contained in our current report on
form 8-K filed with the Securities and Exchange Commission, or SEC, on October
13, 2000, which is incorporated by reference in this prospectus. Historical
financial statements of RTCI at June 30, 2000 and June 30, 1999 and for the two
years ended December 31, 1999 and December 31, 1998 are contained in our current
report on form 8-K filed with the SEC on September 7, 2000, which is
incorporated by reference in this prospectus.
The transactions contemplated by the RTCI Merger Agreement were
consummated on November 6, 2000 and ICC Acquisition Corporation, Inc. merged
with and into Research Triangle Commerce, Inc. (the RTCI Merger), with RTCI
surviving the RTCI Merger as a wholly-owned subsidiary of ICC. ICC paid
aggregate consideration of approximately $19.45 million to the RTCI shareholders
and option and warrant holders, consisting of (i) approximately $2.56 million
representing RTCI's cash on hand at the effective time of the RTCI Merger and
(ii) an aggregate of 3,113,987 shares of ICC Class A Common Stock. Options and
warrants to purchase RTCI stock will be converted into the right to receive upon
exercise of these options and warrants the amount of cash and shares of ICC
common stock which the holders of these options and warrants would have received
if such options and warrants had been exercised immediately prior to the
effective time of the RTCI Merger. ICC agreed to file a registration statement
covering the resale of up to 2,546,176 shares of ICC class A common stock issued
to the Selling Shareholders and is doing so by filing the registration statement
of which this prospectus is a part.
In connection with the completion of the RTCI Merger, Jeffrey W. LeRose,
the president and chief executive officer of RTCI, and Kim Cooke, managing
director of Blue Water Capital II, LLC, which is the managing member of Blue
Water Venture Fund II, L.L.C., were appointed to the ICC Board of Directors.
Intercoastal Data Corporation. On August 2, 2000, ICC entered into an Agreement
and Plan of Merger with Intercoastal Data Corporation, a Georgia corporation
referred to as IDC, and the
-4-
<PAGE>
IDC shareholders, pursuant to which IDC merged with and into ICC, referred to
below as the IDC Merger, on August 3, 2000 and is being operated as a division
of ICC. In connection with the IDC Merger, the IDC shareholders received a total
of 238,579 shares of ICC class A common stock.
IDC is engaged in the development, sale, marketing or other exploitation
of business-to-business electronic data interchange standards-based applications
for standard-based EDI exchange over value-added networks, private networks
intranets, extranets or the Internet. For the twelve months ended January 31,
2000, IDC had total revenues of approximately $1.5 million and net income of
approximately $0.1 million. IDC also owns a portfolio of cash and marketable
securities that had a value of approximately $1.3 million at the effective time
of the IDC Merger. IDC was founded in 1972 and is headquartered in Carrollton,
Georgia. Historical financial statements of IDC as of and for the three month
periods ended April 30, 2000 and April 30, 1999 and as of and for the years
ended January 31, 2000 and January 31, 1999 and pro forma financial statements
for ICC and IDC as of April 30, 2000 are contained in our current report on form
8-K filed with the SEC on August 11, 2000, which is incorporated by reference in
this prospectus. Historical financial statements of IDC as of and for the three
and six month periods ended July 31, 2000 and July 31, 1999 are contained in our
current report on form 8-K filed with the SEC on September 11, 2000, which is
incorporated by reference on this prospectus. Pro forma financial statements for
ICC and IDC as of July 31, 2000 are contained in our current report on form 8-K
filed with the SEC on October 13, 2000, which is incorporated by reference in
this prospectus.
ThyssenKrupp Information Services Group. ICC has announced a five-year agreement
with ThyssenKrupp Information Services Group, or ThyssenKrupp, which provides
ThyssenKrupp with Principal Partner status in the form of European hosting
rights for ICC services. The agreement includes an $8,000,000 minimum revenue
guarantee to ICC over the first 24 months of the agreement.
ThyssenKrupp will package and integrate ICC services into ThyssenKrupp's
product and service offerings and will establish its own co-branding of the
services. In addition, ICC and ThyssenKrupp intend to establish an ICC.NET data
platform for operation by ThyssenKrupp in Europe which will be connected with
ICC's network. ThyssenKrupp will initially focus its sales and marketing efforts
on the major continental European markets and will provide international
language support, initially German with French and other primary European
languages to follow.
-5-
<PAGE>
The Offering
Class A common stock offered
by the selling stockholders...................................2,546,176 shares
Class A common stock to be
outstanding after the offering............................9,501,613 shares (1)
Nasdaq National Market symbol.............................................ICCA
---------------------------
(1) This information is based on the number of shares of class A common stock
(including restricted stock) outstanding on December 20, 2000. It includes
all of the shares of class A common stock being offered by this prospectus
by the selling stockholders. It excludes (a) 2,152,262 shares of class A
common stock issuable upon exercise of warrants or upon conversion of
series A convertible redeemable preferred stock, series C convertible
redeemable preferred stock and class B common stock outstanding on that
date and (b) 6,600,133 shares then issuable under outstanding options or
reserved for issuance under our stock option plans.
-6-
<PAGE>
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 in November 1991 under the name Infosafe
Systems, Inc. and from 1991 to 1997 we conducted limited operations and
developed certain products that we were unable to exploit commercially and
consequently discontinued. In 1997, we shifted our business emphasis to focus
exclusively on the development and marketing of our ICC.NET service, formerly
known as our CommerceSense(R) service, and changed our name to Internet Commerce
Corporation in September 1998 to reflect this shift. In the fourth quarter of
fiscal year 1999, we became an operating company and were no longer considered a
development stage company. We launched the current version of our ICC.NET
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 October 31, 2000, we had an
accumulated deficit of approximately $41.7 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 ICC.NET VAN service and the volume of the data, documents or
other information they send or retrieve utilizing this service. The success of
our ICC.NET VAN service and our other proposed services depends to a large
extent on the future of business-to-business electronic commerce using the
Internet, which is uncertain. In addition, we expect our expenses to increase,
especially in the areas of sales and marketing. As a result, we expect to incur
additional losses in the future. 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 ICC.NET service and may not be able
to continue to expand into new business areas. We are currently focusing on our
ICC.NET service and as a result, our revenue for the foreseeable future is
almost entirely dependent on the success of this service, including, but not
limited to, the number of customers who subscribe to
-7-
<PAGE>
the service and the volume (in kilocharacters) of the data, documents or other
information they send or retrieve utilizing our service and revenue derived from
our acquisitions of RTCI and IDC described above in "Recent Developments". We
expect our expenses to increase, especially in the areas of sales and marketing.
We will need to generate significant revenue to achieve and maintain
profitability. If we do not increase our revenue significantly, we will continue
to be unprofitable.
We are expanding our operations by developing and marketing new and
complementary services using our ICC.NET 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 obtain necessary future capital, our business will
suffer. As of October 31, 2000, we had unrestricted cash in the amount of
approximately $11.2 million, which will not be sufficient if achieving
profitability takes longer than we anticipate. If we are unable to obtain
necessary additional financing, our business will suffer. In addition, we may
need to raise additional funds if we attempt to expand more rapidly or if
competitive pressures or technological changes are greater than anticipated. We
cannot assure you that any additional financing will be available on reasonable
terms or at all.
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.
If we are unable to manage our growth, our financial results will suffer.
Our ability to implement our business plan successfully in a new and
rapidly-evolving market requires effective planning and growth management. If we
cannot manage our anticipated growth effectively, our business and financial
results will suffer. We plan to expand our existing operations substantially,
particularly those relating to sales and marketing, customer installation and
technical support. We expect that we will need to continue to manage and to
expand multiple relationships with customers, Internet service providers and
other third parties. We also expect that we will need to continue to improve our
financial systems, procedures and controls and will need to expand, train and
manage our workforce, particularly our information technology staff. We also
intend to expand our services, which may require additional resources and
employees.
We may face capacity constraints which impede our revenue growth and
business profitability. The satisfactory performance, reliability and
availability of our network infrastructure, customer support and document
delivery systems and our web site are critical to our reputation and our ability
to attract customers and maintain adequate customer service levels.
-8-
<PAGE>
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 ICC.NET 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 ICC.NET 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 ICC.NET VAN service or other proposed services that respond
to technological change or customer demands, our business will suffer.
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 changing technology and 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: Peregrine Systems, Inc., GE Global
eXchange Services, a subsidiary of GE Information Services, Inc.,
International Business Machines Corporation Global Services, Sterling
Commerce, Inc., a subsidiary of SBC Communications Inc., AT&T Corp. and
WorldCom, Inc. 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.
-9-
<PAGE>
If we are successful in utilizing our ICC.NET 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 and if we do not successfully expand
our business in this way, we may lose current and future customers. Although we
have established alliances with Cable & Wireless and ThyssenKrupp to sell our
service, these alliances have only recently begun and we cannot predict their
success. In addition, our potential new service offerings may involve delivery
of data and use of the Internet in other countries which currently have or may
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 business, operating results and financial condition.
Losing any of our key personnel could cause our revenue 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 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 are substantially dependent on the continued
services and performance of our executive officers and other key employees.
Competition for employees in our industry is intense. If we are unable to
attract, assimilate and retain highly qualified employees, our management may
not be able to effectively manage our business, exploit opportunities and
respond to competitive challenges and our business and financial results will
suffer. Many of our competitors may be able to offer more lucrative compensation
packages which include stock options and other stock-based compensation and
higher-profile employment opportunities than we can.
Risks associated with integrating our acquisitions. We have acquired IDC
and RTCI. We undertook these acquisitions to expand our service offerings,
expand our revenues and increase our ability to take advantage of market
opportunities. We may not achieve the anticipated benefits from these
acquisitions unless we successfully combine these companies with our business in
a timely and efficient manner.
Integrating these acquired companies may require us, among other things, to:
o consolidate certain operations, offices and facilities
o combine administrative, accounting, sales and marketing and
distribution functions
o expand accounting systems, controls and procedures and
o eliminate duplicate personnel.
-10-
<PAGE>
We cannot assure you that we will be able to achieve integration without
disrupting our business. The process of integrating these and future acquired
companies into ICC may result in unforeseen difficulties. For example,
integration may divert ICC's management's attention and financial resources away
from the ongoing development and expansion of our existing operations. Our
inability to achieve integration, either at all or in a timely and efficient
manner, could materially and adversely affect our business, operating results
and financial condition.
We believe that our future growth depends, in part, on our ability to
continue to identify, acquire and integrate companies. Acquisitions can be risky
and attractive companies are often sought by numerous industry competitors. Even
if we identify an acquisition target, we cannot assure you that we will be able
to negotiate a definitive agreement, complete the acquisition upon negotiation
of a definitive agreement, realize the anticipated benefits of the acquisition
upon its completion or retain, motivate and manage key employees of the acquired
company. Moreover, we might incur additional debt and contingent liabilities in
our potential future acquisitions, which could materially and adversely impact
our financial condition and results of operations.
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. CommerceSense and ICC.NET
have been registered as trademarks. The applications to register AUDINET,
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 be issued 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 ICC.NET, 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 ICC.NET 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
-11-
<PAGE>
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.
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
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
-12-
<PAGE>
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 ICC.NET
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, 116,500 shares during the quarter ended June
30, 1999, 75,800 shares during the quarter ended September 30, 1999, 576,600
shares during the quarter ended December 31, 1999, 1,127,400 shares during the
quarter ended March 31, 2000, 809,100 shares during the quarter ended June 30,
2000 and 270,400 shares for the period from July 1, 2000 to September 19, 2000.
Since September 20, 2000, our class A common stock has been traded on the Nasdaq
National Market. The average weekly trading volume of our class A common stock
on the Nasdaq National Market was, approximately, 560,000 shares for the period
from September 22, 2000 to December 15, 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, of which 885,650 shares have not been sold as of the date of this
prospectus. On
-13-
<PAGE>
March 1, 2000, another registration statement on form S-3 became effective. This
registration statement covers the sale of up to 955,289 shares of class A common
stock by holders of our class A common stock and by holders of our series A
preferred stock and warrants that may be converted into or exchanged for class A
common stock, of which 383,637 shares have not been sold as of the date of this
prospectus. On April 6, 2000, another registration statement on form S-3 became
effective. This registration statement covers the sale of up to 434,184 shares
of class A common stock by holders of our class A common stock by holders of our
class A common stock, of which 377,906 shares have not been sold as of the date
of this prospectus. In connection with the IDC Merger, we filed a registration
statement on form S-3, which became effective on December 7, 2000, covering the
resale of up to 238,579 shares of our class A common stock, none of which have
been sold as of the date of this prospectus. 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 of class A common stock at a favorable price.
From January 1, 2000 through December 20, 2000, the price of our class A common
stock has fluctuated from a low of $2.75 to a high of $96.00. The market price
of our class A common stock is likely to fluctuate substantially in the future.
In the past, companies that have experienced volatility in the market price of
their stock have been subject to securities class action litigation. If we were
subject to a securities class action lawsuit, it could result in substantial
costs and a significant diversion of resources, including management time and
attention.
The market for our class A common stock may be illiquid, which would
restrict your ability to sell your shares of class A common stock. Our class A
common stock is currently trading on the Nasdaq National Market. A purchaser of
the shares of class A common stock covered by this prospectus may not be able to
find a buyer for the portion of the shares of class A common stock 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 our 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.
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
-14-
<PAGE>
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 4,979,825 shares of preferred stock. 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 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 7 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.
-15-
<PAGE>
USE OF PROCEEDS
The selling stockholders are selling all the shares of class A
common stock covered by this prospectus for their own account. We will not
receive any proceeds from the sale of these shares of 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 1000 to sole
proprietors providing niche products. Trading partners may therefore have
different communications capabilities and requirements. Some trading partners
may rely on paper or fax to communicate, others exchange data in proprietary
file formats through direct dial-up connections or over the Internet, while the
largest trading partners use electronic methods such as electronic data
interchange, or EDI, over value added networks, or VANs.
The ICC.NET Solution
ICC.NET is currently in use by our customers for the secure exchange of
business-to-business electronic forms and data files. We believe that our
ICC.NET 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
enables seamless electronic business communication. Our ICC.NET 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 ICC.NET service can thus improve their productivity
and reduce their costs by enabling electronic business-to-business transactions
between parties with different systems.
-16-
<PAGE>
We believe that our ICC.NET 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. ICC.NET performs these functions
without requiring that the user purchase any software and at prices that are, we
believe, significantly less than the prices currently charged by traditional
VANs.
We designed our ICC.NET 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 ICC.NET service. ICC.NET incorporates proprietary
technology and is immediately accessible using a standard Internet connection
and a web browser.
Our ICC.NET 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 ICC.NET 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 ICC.NET 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 ICC.NET 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. Our ICC.NET service
also provides a complete audit trail of content delivery and customer selection
from a variety of security methods.
-17-
<PAGE>
We believe that ICC.NET is one of the only Internet-based data
transmission services that is approved to interconnect with twenty traditional
VANs that 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.
We developed and added new features to our ICC.NET service in 2000
including enhancements to reports and facsimile services, advanced on-network
document sorting and searching capabilities and an improved Help subsystem. We
also added powerful new Extended Markup Language (XML) based capabilities to our
Internet electronic commerce solutions. This unique new feature utilizes XML to
automatically pre-populate response documents.
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 ICC.NET service to comply with
this requirement and thus can reduce their costs and improve their ability to
locate, order, track and deliver products. Our ICC.NET 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.
Large-scale electronic document management and delivery. Our ICC.NET 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.
ICC.NET allows customers to manage and distribute these large files in real-time
and provides archiving, security, authentication and audit services. ICC.NET
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 ICC.NET VAN service.
EDI to fax service. Traditional EDI users convert electronic documents into a
faxable format and fax the documents manually to their trading partners that
cannot receive documents transmitted electronically in EDI. Our ICC.NET 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.
Business Strategy
We believe that our ICC.NET service provides a platform with many
applications that will allow our customers to fulfill a substantial portion of
their electronic document and data
-18-
<PAGE>
delivery requirements with significantly less administrative effort and cost. We
believe that ICC.NET 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; its trading partners, vendors or customers, are referred to as
spokes. We intend to continue to market ICC.NET as a one-stop electronic
document and data delivery service to the 2,500 largest hub companies in the
United States. Due to the cost to the spoke companies of implementing EDI and
using VANs and other electronic document delivery methods, large hub companies
are currently connected electronically to only a small percentage of their
potential spoke companies.
Our current customers conduct their business internationally, and are
servicing these customers and pursuing new international customers in Europe and
other places outside the United States. See "Recent Developments" beginning on
page 4 of this prospectus.
We believe that a significant number of these hub companies intend to
expand the use of electronic commerce to more of their spoke companies. Small
spoke companies using our ICC.NET service require only an Internet connection
and a web browser to receive and transmit documents electronically and, we
believe, will also be able to receive electronic documents using our ICC.NET fax
service. As a result, large hub companies may now be able to request or
encourage electronic commerce with their small spoke companies. In turn, many of
these spoke companies may become the hub companies for their suppliers, which
should further broaden the reach of our ICC.NET service.
We intend to encourage the use of our ICC.NET service through exceptional
customer service. We currently offer technical support to our customers
twenty-four hours 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 ICC.NET
service has been fully operational more than 99% of the time. SIAC runs all
computing operations for the New York Stock Exchange and the American Stock
Exchange.
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. See "Recent Developments" beginning on page 4 of this
prospectus.
-19-
<PAGE>
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.
Year 2000 Compliance
We implemented and completed a Year 2000 program designed to address the
Year 2000 issue. We have experienced no significant disruptions in our
information technology and non-information technology systems and we believe
those systems successfully responded to the Year 2000 date change. In addition,
we have not experienced any adverse effects with any of our third party vendors,
suppliers or customers. While we are not aware of, and do not expect that we
will experience, any material problems related to this issue, we will continue
to monitor our computer applications and those of our suppliers, vendors and
customers throughout the year 2000 to ensure that any latent Year 2000 matters
that may arise are addressed promptly.
SELLING STOCKHOLDERS
On November 6, 2000, we acquired RTCI by merger. The selling stockholders
received their shares of class A common stock in exchange for their ownership
interests in RTCI. In addition, warrants to purchase share of common stock of
RTCI held by certain selling stockholders were converted in the RTCI Merger into
warrants to purchase an aggregate of 45,760 shares of ICC class A common stock.
See "Recent Developments" beginning on page 4 of this prospectus.
The table below sets forth information, as of December 20, 2000, regarding
the beneficial ownership of the shares of class A common stock by the selling
stockholders. The information regarding the selling stockholders' beneficial
ownership after this offering assumes that all the shares of class A common
stock offered by this prospectus are sold. The presentation is based on
9,501,613 shares of our class A common stock outstanding as of December 20,
2000, which includes all of the shares of class A common stock being offered by
this prospectus.
-20-
<PAGE>
--------------------------------------------------------------------------------
Number of Shares
Of Class A Class A Common Stock
Common Stock Number of Beneficially Owned
Beneficially Shares of Class A After Offering
Owned Common Stock --------------------
Selling Stockholders Before Offering Offered Number Percent
--------------------------------------------------------------------------------
Blue Water Venture Fund ** 763,638 ** **
II, LLC
Jennifer M. Boyle ** 1,048 ** **
Ben Brooks ** 3,048*** ** **
Judith A. Butler ** 1,048 ** **
Norbert Duttlinger ** 1,048 ** **
Louis R. Fattarusso, Jr. ** 699 ** **
Danielle Frank ** 708 ** **
Joseph T. Freeman ** 1,048 ** **
Tammy L. Kinane ** 262 ** **
Jeffrey W. LeRose ** 1,754,675 ** **
Joanne F. LeRose ** 10,476 ** **
Joanne F. LeRose as ** 1,048 ** **
Trustee FBO Kaitlin
Butler
Joanne F. LeRose as ** 1,048 ** **
Trustee FBO Evan Boyle
Joanne F. LeRose as ** 1,048 ** **
Trustee FBO Kayla Boyle
Janine K. LeRose ** 1,048 ** **
Marion Bass Securities ** 27,036*** ** **
Corporation
Dean C. Paizas ** 1,048 ** **
Rene Matthews Usher ** 14,834*** ** **
Kenneth W. Vanderford ** 5,238 ** **
Peter Yannell ** 1,048 ** **
Mark Yount ** 842*** ** **
-------------------
* Less than 1%
** To be supplied by amendment
*** Consists of shares issuable upon exercise of warrants
-21-
<PAGE>
PLAN OF DISTRIBUTION
ICC is registering the shares of class A common stock on behalf of the
selling stockholders. As used herein, "selling stockholders" includes donees and
pledgees selling shares of class A common stock received from a named selling
stockholder after the date of this prospectus. We anticipate that the selling
stockholders may sell all or a portion of the shares of class A common stock
offered by this prospectus from time to time on the Nasdaq National 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
of class A common stock 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 of class A common stock offered by this prospectus, although we have
made no inquiry in that regard. In connection with distributions of the shares
of class A common stock, 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 of class A common
stock covered by this prospectus in the course of hedging the positions
they assume with selling stockholders;
o the selling stockholders may sell shares of class A common stock short and
deliver the shares of class A common stock offered by this prospectus 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 of class A common stock offered by this prospectus, which the
broker-dealer may resell according to this prospectus; and
o the selling stockholders may pledge the shares of class A common stock
offered by this prospectus to a broker or dealer and upon a default, the
broker or dealer may effect sales of the pledged shares of class A common
stock 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
-22-
<PAGE>
the Securities Act. If so, commissions received by any of these brokers, dealers
or agents and profit on any resale of the shares of class A common stock 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 of
class A common stock 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.
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 shares of
class A 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 shares of 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
of class A common stock.
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 beginning on page 28 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, 175
shares of series S preferred stock and 10,000 shares of series C preferred
stock.
-23-
<PAGE>
Common Stock
Class A common stock
As of December 20, 2000, there were 9,455,853 shares of class A common
stock outstanding, held of record by approximately 260 stockholders. Class A
common stock is currently traded on the Nasdaq National Market under the symbol
ICCA.
Holders of class A common stock are entitled to one vote per share on all
matters to be voted on by our common stockholders. Subject to the preferences of
the preferred stock, the holders of class A common stock are entitled to a
proportional distribution of any dividends that may be declared by the board of
directors, provided that if any distributions are made to the holders of class A
common stock, identical per-share distributions must be made to the holders of
the class B common stock, even if the distributions are in class A common stock.
In the event of a liquidation, dissolution or winding up of ICC, the holders of
class A common stock are entitled to share equally with holders of the class B
common stock in all assets remaining after liabilities and amounts due to
holders of preferred stock have been paid in full or set aside. Class A common
stock has no preemptive, redemption or conversion rights. The rights of holders
of common stock are subject to, and may be adversely affected by, the rights of
the holders of shares of series A preferred stock, series S preferred stock,
series C preferred stock or any other series of preferred stock that ICC may
designate and issue in the future.
Class B common stock
As of December 20, 2000, there were 2,574 shares of class B common stock
outstanding, held of record by three 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.
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, 175 shares of preferred stock as
series S preferred stock and 10,000 shares of preferred stock as series C
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
-24-
<PAGE>
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 December 20, 2000, ICC had 568 shares of series A preferred stock
outstanding, held by ten 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,
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 National
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. These 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 and a total of $181,773 in
cash in payment of the dividend due on July 1, 2000.
Series A preferred stock has no voting rights except as expressly required
by law.
-25-
<PAGE>
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.
Series C preferred stock
As of December 20, 2000, ICC had 10,000 shares of series C preferred stock
outstanding, held by one stockholder.
Series C preferred stock is convertible, at the option of the holder, 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 dividing $1,000 by the
conversion price at the date of conversion. The initial conversion price for the
series C preferred stock is $22.34 per share, which is subject to adjustment in
the case of a reclassification, subdivision or combination of ICC's common stock
and upon a consolidation, merger or sale of substantially all of the assets of
ICC.
Series C preferred stock is redeemable, in whole or in part, by ICC,
commencing on the fifth anniversary of the date of issuance. The redemption
price for each share of series C preferred stock is $1,000 plus unpaid
dividends. Notice of redemption must be given not less than fifteen days nor
more than 45 days before the redemption date.
Upon a liquidation, dissolution or winding up of ICC, the holders of
series C preferred stock are entitled to receive an amount equal to $1,000 per
share of series C preferred stock plus unpaid dividends before any distribution
is made to holders of series A preferred stock or common stock.
The holders of the outstanding shares of series C 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. These dividends are payable on each January 1,
commencing on January 1, 2001.
Each share of series C preferred stock is entitled to a number of votes
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 on any matter submitted to stockholders.
Warrants
As of December 20, 2000, there were 1,184,715 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 December 20, 2000, there were 234,140 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.
-26-
<PAGE>
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.
The class A and class B warrants are subject to redemption by ICC, at
$0.25 per class A or class B warrant, on not less than 30 days notice in the
event that the average closing bid price for the class A common stock, if the
class A common stock is then traded on the Nasdaq National Market, or the last
reported sales price, if the class A common stock is then traded on a national
securities exchange, exceeds $44.50 in the case of the redemption of the class A
warrants and $61.25 in the case of the redemption of the class B warrants, for
the thirty consecutive business days ending within 15 days of the date of the
notice of redemption. All warrants of a class must be redeemed if any of that
class are redeemed. The date set for redemption of the class B warrants may not
be earlier than 31 days after the date set for redemption of the class A
warrants. The rights of holders of class A and class B warrants to exercise the
warrants terminate at 5:00 p.m., New York time, on the business day immediately
preceding the date set for redemption.
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.
Three finders introduced us to investors in our 1998 bridge financing and
have received a total of 66,600 warrants for these services. Each of these
warrants entitles the holder upon exercise to purchase one share of class A
common stock for $2.50. These warrants expire between July 2001 and January
2002.
Several NASD registered broker/dealers provided services in connection
with our April 1999 private placement of series A preferred stock and are
entitled to receive a total of 173,250 warrants for these services. Each of
these warrants entitles the holder upon exercise to purchase one share of class
A common stock for $5.00 and expires in April 2002.
The warrants issued in our 1998 bridge financing to investors and finders
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
-27-
<PAGE>
class A common stock or any subdivision or combination of the outstanding class
A common stock.
In connection with our strategic global alliance with Cable & Wireless, we
issued to Cable & Wireless 400,000 warrants to purchase shares of our class A
common stock. Each of these warrants entitles the holder upon exercise to
purchase one share of class A common stock for $22.21 per share and expires in
January 2005. The number and exercise price of these warrants 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.
In connection with the RTCI Merger, warrants to purchase shares of RTCI
common stock were converted into warrants to purchase an aggregate of 45,760
shares of ICC class A common stock at $5.77 per share.
Delaware Law and Certificate of Incorporation and Bylaw Provisions
The following is a summary description of material provisions of the
Delaware General Corporation Law and our certificate of incorporation and
bylaws. For further information you should refer to our certificate of
incorporation and bylaws.
We must comply with the provisions of Section 203 of the Delaware General
Corporation Law. Section 203 prohibits a publicly-held Delaware corporation from
engaging in a business combination with an interested stockholder for three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
A business combination includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. An interested
stockholder is generally a person who, together with affiliates and associates,
owns, or within the past three years did own, 15% of the corporation's voting
stock.
There are provisions in our certificate of incorporation, our bylaws and
Delaware law that make it more difficult for a third party to obtain control of
ICC, even if doing so would be beneficial to our stockholders. This could
depress our stock price. However, these provisions enhance the likelihood of
continuity and stability in the composition of the policies formulated by the
board of directors. In addition, these provisions are intended to ensure that
the board of directors will have sufficient time to act in what it believes to
be in the best interests of ICC and its stockholders. These provisions also are
designed to reduce the vulnerability of ICC to an unsolicited proposal for a
takeover of ICC that does not contemplate the acquisition of all of its
outstanding shares or an unsolicited proposal for the restructuring or sale of
all or part of ICC. The provisions are also intended to discourage some tactics
that may be used in proxy fights.
Classified Board of Directors
Our board of directors is divided into three classes of directors. The
classes are as nearly equal in number as possible and serve staggered three-year
terms. One class of directors is elected each year to serve a three-year term.
The classified board provision will help to assure
-28-
<PAGE>
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 of class A common stock being offered by this
prospectus will be passed upon by Kramer Levin Naftalis & Frankel LLP, New York,
New York.
EXPERTS
Deloitte & Touche LLP, independent auditors, have audited our financial
statements as of July 31, 2000, as stated in their report included in our annual
report on Form 10-KSB for the year ended July 31, 2000, which is incorporated in
this prospectus by reference. Our financial statements as of July 31, 2000 are
incorporated by reference in reliance on Deloitte & Touche LLP's report, given
on their authority as experts in accounting and auditing.
Richard A. Eisner & Company, LLP, our previous 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, 2000,
which is incorporated in this prospectus by reference. Our financial statements
as of July 31, 1999 are incorporated by reference in reliance on Richard A.
Eisner & Company, LLP's report, given on their authority as experts in
accounting and auditing.
The financial statements of Research Triangle Commerce, Inc. for the two
years ended December 31, 1999, incorporated in this Registration Statement on
Form S-3 by reference to the
-29-
<PAGE>
Internet Commerce Corporation's Current Report on Form 8-K dated September 7,
2000, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Intercoastal Data Corporation for the two
years ended January 31, 2000, incorporated in this Registration Statement on
Form S-3 by reference to the Internet Commerce Corporation's Current Report on
Form 8-K dated August 11, 2000, have been so incorporated in reliance on the
report of Habif, Arogeti & Wynne, LLP, independent accountants, given upon the
authority of such firm as experts in auditing and accounting.
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.
We have filed with the SEC a registration statement on form S-3 to
register the shares of class A 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 National Market.
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, 2000;
o Our quarterly report on form 10-Q for the quarter ended October
31, 2000;
-30-
<PAGE>
o Our current reports on form 8-K dated October 13, 2000, November 8,
2000, November 14, 2000 and November 16, 2000; and
o The description of our class A common stock contained in our Rule
424 prospectus filed with the SEC on June 18, 1995, including any
amendments or reports filed for the purpose of updating the
description. See also Description of Securities on pages 23 to 29 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.
-31-
<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)....................................$2,126.81
Nasdaq National Market listing fee (actual)......................$17,500
Printing and engraving fees and expenses.........................$5,000
Legal fees and expenses..........................................$10,000
Accounting fees and expenses.....................................$10,000
Miscellaneous....................................................$373.19
Total............................................................$45,000
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, bylaws, 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 bylaws 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
<PAGE>
indemnify. Article VIII of our bylaws and Article Seventh of our Amended and
Restated Certificate of Incorporation, as further amended, both provide that no
director shall be liable to us or any of our stockholders for monetary damages
for breach of fiduciary duty as a director, except with respect to (1) a breach
of the director's duty of loyalty to the corporation or its stockholders, (2)
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) liability under Section 174 of the DGCL or (4) a
transaction from which the director derived an improper personal benefit, and
that it is the intention of the foregoing provisions to eliminate the liability
of our directors to ICC or our stockholders to the fullest extent permitted by
Section 102(b)(7) of the DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to our directors, officers
and controlling persons pursuant to the foregoing provisions, or otherwise, we
have been advised that in the opinion of the securities and exchange commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by ICC of expenses incurred or paid by a
director, officer or controlling person of ICC in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by ICC is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated in this registration statement
by reference to a prior filing of ICC under the Securities Act or the Exchange
Act as indicated in parenthesis:
Exhibit
Number Description
------ ------------------------------------------------
2.1 Agreement and Plan of Merger among ICC, ICC Acquisition
Corporation, Inc., a wholly-owned subsidiary of ICC,
Research Triangle Commerce, Inc., or RTCI, and the selling
shareholders of RTCI (13)
2.2 Agreement and Plan of Merger among ICC, IDC, and the
selling shareholders of IDC (14)
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 (10)
3(ii).1 Bylaws (19)
-2-
<PAGE>
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)
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. (10)
4.13 Master Agreement dated November 23, 1999 by and among ICC
and Cable and Wireless PLC Corporation (10)
4.14 RTCI Employee Stock Option Plan (15)
4.15 Amendment to RTCI Employee Stock Option Plan (15)
4.16 Form of Three-Year Incentive Stock Option Agreement (15)
4.17 Form of Four-Year Incentive Stock Option Agreement (15)
4.18 Form of Non-Qualified Stock Option Agreement (15)
4.19 Form of Buy-Sell Agreement for Optionholders (15)
4.20 Research Triangle Commerce, Inc. Restricted Stock Plan (16)
4.21** Form of Warrant Agreement by and among ICC and each of Ben
Brooks,
Marion Bass Securities Corporation, Rene Matthews Usher and
Mark Yount
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)
-3-
<PAGE>
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, 2000 (18)
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, 2000 (18)
10.12 Employment Agreement for Walter M. Psztur dated as of April
16, 2000 (18)
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)
10.18 Consulting Agreement, dated as of March 15, 2000, between
Michele Golden and ICC (11)
10.19 Amended and restated stock option plan (12)
10.20 First Amendment to Lease Agreement, dated as of January, 2000,
by and between JB Squared LLC and ICC relating to the rental
of an additional approximately 4,800 square feet at the
Lakeview Executive Center, 45 Research Way, East
Setauket, New York, 11733 (18)
10.21 First Amendment of Lease Agreement between Madison Third
Building Companies LLC and ICC relating to the rental of
additional office space at 805 Third Avenue, New York, New
York (18)
10.22 Lease Agreement, dated as of August 2, 2000, by and between
IDC Realty, LLC as landlord and ICC as tenant relating to the
rental of an approximately 8,000 square feet facility used by
ICC's IDC division (18)
23(ii).1* Consent of Deloitte & Touche LLP
23(ii).2* Consent of Richard A. Eisner & Company, LLP
23(ii).3* Consent of PricewaterhouseCoopers LLP
23(ii).4* Consent of Habif, Arogeti & Wynne, LLP
23(ii).5** Consent of Kramer Levin Naftalis & Frankel LLP (contained
in Exhibit 5.1 hereto)
-4-
<PAGE>
(b) Financial Statement Schedules:
Not Applicable.
* Filed herewith
** To be filed by amendment
(1) Incorporated by reference to the Company's Registration Statement on
Form S-3 (File no. 333-80043)
(2) Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended July 31, 1998
(3) Incorporated by reference to the Company's Registration Statement on
Form SB-2 (File no. 33-83940)
(4) Incorporated by reference to the Company's Report on Form 10-QSB dated
January 31, 1997
(5) Incorporated by reference to the Company's Report on Form 10-QSB dated
April 30, 1997
(6) Incorporated by reference to the Company's Report on Form 10-QSB dated
October 31, 1997
(7) Incorporated by reference to Amendment No. 3 to the Company's
Registration Statement on Form S-3 (File no. 333-80043)
(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
(10) Incorporated by reference to Amendment No. 1 to the Company's
Registration Statement on Form S-3 (File no. 333-93301)
(11) Incorporated by reference to the Company's Current Report on Form 8-K
dated March 28, 2000
(12) Incorporated by reference to the Company's Proxy Statement for the
annual meeting of stockholders for the year ended July 31, 1999
(13) Incorporated by reference to the Company's Current Report on Form 8-K
dated June 15, 2000
(14) Incorporated by reference to the Company's Current Report on Form 8-K
dated August 11, 2000
(15) Incorporated by reference to the Company's Registration Statement on
Form S-8 (File no. 333-49372)
(16) Incorporated by reference to the Company's Registration Statement on
Form S-8 (File no. 333-493640)
(17) Incorporated by reference to the Company's Current Report on Form 8-K
dated December 1, 1999
(18) Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended July 31, 2000
(19) Incorporated by reference to the Company's Current Report on Form
8-K filed with the SEC on July 1, 1999
-5-
<PAGE>
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.
provided, however, that clauses (i) and (ii) do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by such clauses is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
-6-
<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
20th day of December, 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 December 20, 2000
--------------------------- Executive Officer
Dr. Geoffrey S. Carroll (Principal Executive Officer)
Director
/s/ Walter M. Psztur Chief Financial Officer December 20, 2000
-------------------------- (Principal Financial
Walter M. Psztur and Accounting Officer)
Director December __, 2000
--------------------------
Richard J. Berman
/s/ G. Michael Cassidy Director December 20, 2000
--------------------------
G. Michael Cassidy
/s/ Kim D. Cooke Director December 20, 2000
--------------------------
Kim D. Cooke
/s/ Charles C. Johnston Director December 20, 2000
--------------------------
Charles C. Johnston
/s/ Jeffrey W. LeRose Director December 20, 2000
--------------------------
Jeffrey W. LeRose
/s/ Arthur R. Medici Director December 20, 2000
--------------------------
Arthur R. Medici
/s/ James A. Ortenzio Director December 20, 2000
--------------------------
James A. Ortenzio
/s/ Matthew Wolk Director December 20, 2000
--------------------------
Matthew Wolk
