As filed with the Securities and Exchange Commission on November 6, 2000
Registration No. ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 No.)
805 Third Avenue
New York, New York 10022
(Address of Principal Executive Offices)
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Internet Commerce Corporation
Stock Option Plan
and
RTCI Employee Stock Option Plan
(Full titles of the plans)
Dr. Geoffrey S. Carroll
805 Third Avenue
New York, New York 10022
(Name and address of agent for service)
(212) 271-7640
(Telephone number, including area code,
of agent for service)
Copies to:
Peter S. Kolevzon, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
- ------------------------ ----------------------- -------------------- -------------------- -----------------
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered (1) Share (2) Price Registration Fee
- ------------------------ ----------------------- -------------------- -------------------- -----------------
Class A Common Stock 2,349,018 $5.73 $13,470,209 $3,556.14
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(1) This registration statement shall also cover any additional shares of
class A common stock which become issuable under the plans by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the registrant's outstanding shares of
class A common stock.
(2) The proposed maximum offering price per share has been estimated solely
to calculate the registration fee under Rule 457(c) of the Securities
Act of 1933, as amended (the "Securities Act"), based upon the average
of the high and low prices for the class A common stock reported on the
Nasdaq National Market on November 2, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We hereby incorporate by reference in this registration statement the
following documents:
(a) Our annual report on Form 10-KSB for the year ended July 31,
2000;
(b) Our current report on Form 8-K filed with the SEC on October
13, 2000; and
(c) The description of our class A common stock contained in our
Rule 424 prospectus filed with the SEC on June 18, 1997,
including any amendments or reports filed for the purpose of
updating the description.
All documents that we subsequently file under Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as it may be amended from time
to time, prior to the filing of a post-effective amendment to this registration
statement which indicates that all securities offered by this registration
statement have been sold or which deregisters all the securities which are then
unsold, are incorporated by reference in this registration statement and will be
a part of this registration statement from the date of filing of the documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. 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 statue requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statue provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote,
agreement, or otherwise. Section 145 thus makes provision for indemnification in
terms sufficiently broad to cover officers and directors, under certain
circumstances, for liabilities arising under the Securities Act of 1933, as it
may be amended from time to time.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article VII of our by-laws and Article Seventh of our Amended and
Restated Certificate of Incorporation, as further amended, both provide that we
shall indemnify, to the fullest extent permitted by Section 145 of the DGCL,
each person that Section 145 grants us power to indemnify. Article VIII of our
by-laws and Article Seventh of our Amended and Restated Certificate of
Incorporation, as further amended, both provide that no director shall be liable
to us or any of our stockholders for monetary damages for breach of fiduciary
duty as a director, except with respect to (1) a breach of the director's duty
of loyalty to the corporation or its stockholders, (2) acts or omissions not in
good faith or which 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 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 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. 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
- ------ -----------
4.1 Specimen Certificate for Class A Common Stock (2)
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 (2)
4.4 Form of Warrant Agreement (2)
4.5 Escrow Agreement, as amended (2)
4.6 Form of Warrant expiring February 18, 2002 (2)
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. (3) 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. (3)
4.9 Form of Unit Purchase Option for D.H. Blair Investment Banking Corp.
dated February 18, 1997 (3)
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 (3)
4.11 Form of Class A Bridge Warrant issued in the 1998 bridge financing (1)
4.12 Warrant Agreement dated January 12, 2000, by and among ICC and
Cable and Wireless USA, Inc. (4)
4.13 RTCI Employee Stock Option Plan
4.14 Amendment to RTCI Employee Stock Option Plan
4.15 Form of Three-Year Incentive Stock Option Agreement
4.16 Form of Four-Year Incentive Stock Option Agreement
4.17 Form of Non-Qualified Stock Option Agreement
4.18 Form of Buy-Sell Agreement for Optionholders
4.19 Agreement and Plan of Merger dated as of June 14, 2000, among ICC, ICC
Acquisition Corporation, Inc., a wholly-owned subsidiary of ICC,
Research Triangle Commerce, Inc., Jeffrey LeRose and Blue Water Venture
Fund II, L.L.C. (5)
5 Opinion of Kramer Levin Naftalis & Frankel LLP regarding legality of
the shares of class A common stock being registered pursuant to this
registration statement
23(ii).1 Consent of Richard A. Eisner & Company, LLP
23(ii).2 Consent of Deloitte & Touche LLP
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(1) Incorporated by reference to ICC's registration statement on form S-3
(File no. 333-80043)
(2) Incorporated by reference to ICC's registration statement on form SB-2
(File no. 33-83940)
(3) Incorporated by reference to ICC's report on form 10-QSB dated January
31, 1997
(4) Incorporated by reference to amendment no. 1 to ICC's registration
statement on form S-3 (File no. 333-93301)
(5) Incorporated by reference to ICC's current report on form 8-K dated
June 14, 2000
Item 9. Undertakings.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 6th day of
November, 2000.
INTERNET COMMERCE CORPORATION
By: /s/ Dr. Geoffrey S. Carroll
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Dr. Geoffrey S. Carroll
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement 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 November 6, 2000
- --------------------------- Executive Officer, Director
Dr. Geoffrey S. Carroll (principal executive officer)
/s/ Walter M. Psztur Chief Financial Officer November 6, 2000
- --------------------------- (principal financial
Walter M. Psztur and accounting officer)
/s/ Richard J. Berman Director November 6, 2000
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Richard J. Berman
/s/ G. Michael Cassidy Director November 6, 2000
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G. Michael Cassidy
Director November__, 2000
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Charles C. Johnston
/s/ Arthur R. Medici Director November 6, 2000
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Arthur R. Medici
Director November__, 2000
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James Ortenzio
/s/ Matthew Wolk Director November 6, 2000
- ---------------------------
Matthew Wolk