As filed with the Securities and Exchange Commission on August 19, 2004
Registration No. 333-115029
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNET COMMERCE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 13-3645702
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
805 Third Avenue
New York, New York 10022
(212) 271-7640
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(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
THOMAS J. STALLINGS
Chief Executive Officer
INTERNET COMMERCE CORPORATION
805 Third Avenue
New York, New York 10022
(212) 271-7640
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(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
MICHAEL PICCININNI PETER S. KOLEVZON, ESQ.
Corporate Controller Kramer Levin Naftalis & Frankel LLP
Internet Commerce Corporation 919 Third Avenue
805 Third Avenue -and- New York, New York 10022-3903
New York, New York 10022 (212) 715-9100
(212) 271-7640
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Approximate date of commencement of proposed sale to the public: at
such time or times after the effective date of this Registration Statement as
the selling stockholders may determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement 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 statement 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. |_|
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 of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to section 8(a), may
determine.
Preliminary Prospectus, Subject to Completion, dated August 19, 2004
INTERNET COMMERCE CORPORATION
This prospectus will be used by selling stockholders to resell all or a
portion of the following securities issued in connection with our private
placement on April 20, 2004 of shares of our class A common stock and warrants
to purchase shares of class A common stock at an initial exercise price per
share of $2.22:
(1) 2,831,707 shares of our class A common stock; and
(2) up to 1,132,677 shares of our class A common stock issuable upon
exercise of the warrants.
Our class A common stock is traded on the Nasdaq SmallCap Market under
the symbol "ICCA." On August 18, 2004, the last sale price for the class A
common stock was $1.22.
Any selling stockholder may sell the class A common stock on the Nasdaq
SmallCap Market or any other stock exchange, market or other trading facility on
which the shares are traded or in privately negotiated transactions, whenever it
decides and at the price it 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. We will not receive any proceeds from the sale of
these shares.
This investment involves a high degree of risk. You should carefully
consider the risk factors beginning on page 5 of this prospectus before you
decide to invest.
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.
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 August , 2004
Important Notice about the Information Presented in this Prospectus
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted.
You should assume that the information appearing in this prospectus is
accurate as of the date on the front cover of this prospectus only. The
business, financial condition, results of operations and prospects of ICC may
have changed since that date.
TABLE OF CONTENTS
Page
----
PROSPECTUS SUMMARY.............................................................3
FORWARD LOOKING INFORMATION....................................................4
RISK FACTORS...................................................................5
Risks Relating to ICC.......................................................5
Risks Relating to the Internet and Online Commerce Aspects
of Our Business.............................................................8
Risks Relating to our Class A Common Stock..................................9
RECENT DEVELOPMENTS...........................................................10
USE OF PROCEEDS...............................................................10
DESCRIPTION OF TRANSACTION....................................................10
Private Placement..........................................................10
SELLING STOCKHOLDERS..........................................................11
PLAN OF DISTRIBUTION..........................................................13
DESCRIPTION OF SECURITIES.....................................................15
Common Stock...............................................................15
Preferred Stock............................................................15
Warrants...................................................................17
Delaware Law and Certificate of Incorporation and Bylaw Provisions.........18
Transfer Agent and Registrar...............................................19
LEGAL MATTERS.................................................................19
EXPERTS.......................................................................19
WHERE YOU CAN FIND MORE INFORMATION...........................................19
INFORMATION NOT REQUIRED IN PROSPECTUS......................................II-1
SIGNATURES..................................................................II-5
EXHIBIT INDEX...............................................................II-6
2
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 beginning on page 5
of this prospectus, before making an investment decision.
Internet Commerce Corporation
Internet Commerce Corporation is in the e-commerce business-to-business
communication services market, providing electronic commerce ("EC")
infrastructure solutions. References in this prospectus to the "Company," "ICC,"
"we" or "us" mean Internet Commerce Corporation, a Delaware corporation, and its
subsidiary on a consolidated basis, unless the context otherwise requires.
Our business operates in two segments. These two segments are:
o ICC.NET - Our ICC.NET service, the Company's global Internet-based
value added network or VAN, uses the Internet and our proprietary
technology to provide complete supply chain connectivity solutions
for electronic data interchange, or EDI, and e-commerce and offers
users a sophisticated vehicle to send and receive files of any
format and size securely. Our ICC.NET service also offers a broad
range of consulting services and associated mapping and XML
technology, custom application development, comprehensive
e-commerce education and an EDI service bureau. We believe that
our ICC.NET service has significant advantages over traditional
VANs, email-based and other Internet-based software systems,
because our service is provided generally with greater
transmission speed in nearly real-time and offers more features at
a low cost. In February 2004, ICC combined its Professional
Services segment, which facilitated the development and operation
of comprehensive business-to-business e-commerce solutions, with
the ICC.NET service.
o Service Bureau - Our Service Bureau manages and translates the
data of small and mid-sized companies that exchange EDI data with
large companies. In June 2004, we augmented our Service Bureau
through the acquisition of Electronic Commerce Systems, Inc., also
known as "ECS." See "Recent Developments."
We depend on our VAN service for a significant portion of our
consolidated revenues. However, over the past year, the VAN business has become
significantly more price competitive, with major networks restructuring to
reduce their overhead and other costs to better compete against Internet-based
networks such as our ICC.NET service. While we have been successful in
maintaining, and in fact have improved, our margins and we have increased the
volume of data transmitted through our VAN, we have experienced price erosion in
competing for larger customers. Although we expect to continue to add new
customers and increase the volume of data transmitted through our service, we do
not expect our revenue from VAN services to continue to grow as rapidly as in
the past. This trend is expected to continue in the short term until such time
as a cost-based pricing floor is reached by our larger competitors.
In an effort to counteract this negative impact on our revenue growth,
management has deployed a dual pronged strategy. We expect to add revenue
through our acquisition of ECS on June 22, 2004, a provider of Internet-based
e-business solutions to suppliers needing to comply with EDI mandates from major
retailers, as well as services to the banking industry and special electronic
solutions for a range of customers. In addition, we have developed new product
and service offerings (AS2 and Data Synchronization) to improve our value
proposition. AS2 is a service offering on the Internet that handles primary XML
documents, which are an extension of traditional EDI. We have incorporated this
communication methodology into our standard network services and are achieving
success in stemming a migration of our customers' network traffic to those who
could otherwise purchase an AS2 software offering. Furthermore, we are actively
searching for additional opportunities to grow our business, expand our product
base and increase our revenues. There can be no assurance that any such
opportunities will be available on favorable terms or that such opportunities,
if consummated, will be successful, or that the acquisition of ECS and
3
the incorporation of new product and service offerings, such as AS2 and Data
Synchronization, into our standard network services will help us achieve
significant growth in revenues in the near future, or at all.
The mailing address of our principal executive offices is 805 Third
Avenue, New York, New York 10022, and our telephone number at that address is
(212) 271-7640.
The Offering
In connection with our private placement that closed on April 20, 2004,
we issued an aggregate of 2,831,707 shares of our class A common stock and
warrants to purchase up to 849,507 shares of our class A common stock at an
exercise price per share of $2.22. In addition, we granted certain registration
rights to the purchasers of our class A common stock and warrants. We engaged
Duncan Capital Group LLC as the placement agent in connection with the private
placement. At the closing, we paid Duncan Capital $396,439 in cash and issued to
Duncan Capital warrants (the "financial advisor's warrants") to purchase up to
283,170 shares of our Class A common stock.
This prospectus has been prepared, and the registration statement of
which this prospectus is a part has been filed with the Securities and Exchange
Commission, to satisfy our obligations to the purchasers of the aforementioned
securities. Accordingly, this prospectus covers:
o the resale by the selling stockholders of the 2,831,707 shares of
class A common stock issued in the private placement;
o the resale by the selling stockholders of up to 849,507 shares our
class A common stock issuable upon exercise of the warrants issued
in the private placement; and
o the resale of up to 283,170 shares of our class A common stock
issuable upon exercise of the financial advisor's warrants.
Investing in our securities involves risks. You should carefully
consider the information under "Risk Factors" beginning on page 5 of this
prospectus and the other information included in this prospectus before
investing in our securities.
FORWARD LOOKING INFORMATION
This prospectus contains a number of "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Specifically, all statements other than statements
of historical facts included 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" and "intend," 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 beginning on page 5 of this
prospectus and other cautionary statements in this prospectus and in the
information incorporated in this prospectus by reference. We have no duty to
update or revise any forward-looking statements after the date of this
prospectus or to conform them to actual results, new information, future events
or otherwise.
Although we believe that our expectations are reasonable, we cannot
assure you that our expectations will prove to be correct. 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.
4
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 never earned a profit, may incur losses in the future and
cannot assure that we will be profitable in the future on an operating basis or
otherwise. We have incurred significant losses since we were founded in 1991. We
have never earned a profit in any fiscal quarter and, as of April 30, 2004, we
had an accumulated deficit of approximately $85 million.
Our primary focus has been on growing VAN service. The success of our
VAN service, as well as the success of our other services, depends to a large
extent on the future of business-to-business electronic commerce, our ability to
effectively compete in the marketplace and our ability to earn a profit, each of
which is uncertain. In particular, the success of the VAN service depends on the
number of customers that subscribe to our VAN service, the volume of the data,
documents or other information they send or retrieve utilizing this service and
the price we are able to charge for this service.
Over the past year, the VAN business has become significantly more
price competitive, with major networks restructuring to reduce their overhead
and other costs to better compete against Internet-based networks such as our
ICC.NET service. While we have been successful in maintaining, and in fact have
improved, our margins and we have increased the volume of data transmitted
through our van, we have experienced price erosion in competing for larger
customers. Although we expect to continue to add new customers and increase the
volume of data transmitted through our service, we do not expect our revenue
from VAN services to continue to grow as rapidly as in the past. If our revenues
grow at a slower rate than we anticipate, or decrease, and we are unable to
adjust spending in a timely manner or if our expenses increase without
commensurate increases in revenues, our operating results will suffer and we may
not ever achieve profitability.
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. Our principal competitors include: Inovis Inc.; GXS,
Global eXchange Services Inc.; International Business Machines Corporation
Global Services; Sterling Commerce, Inc.; EasyLink Services Corp.; and
Kleinschmidt Inc.
Our market is characterized by intense price competition and rapidly
changing technology, customer demands and innovation. The Internet's growth and
the intense price competition in our industry have resulted in significant
changes. As described above, the VAN business has become significantly more
price competitive, with major networks restructuring to reduce their overhead
and other costs to better compete against Internet-based networks such as our
ICC.NET service. Traditional VAN's such as GXS and Inovis have been sold by
their parent companies. GXS was acquired by Francisco Partners, Inovis was spun
off from Peregrine Systems, Inc. and acquired by Golden Gate Capital Inc.
Our principal competitors have significant existing customer
relationships and 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.
5
New competition is emerging in the form of web services networks,
collaborative applications, application service providers, e-marketplaces and
integration broker suites. ICC has enhanced its technologies to communicate with
these AS2-based technologies. As described above, we have developed new product
and service offerings (AS2 and Data Synchronization) to improve our value
proposition; however, there can be no assurance that these new product and
service offerings will compete effectively and generate any significant
revenues. Competitors providing these alternatives include Cyclone Corporation
and Inovis. They offer software solutions that utilize the Internet to transmit
data between trading partners. We believe that the high cost of implementation
and the ongoing costs of supporting a company's trading partners are a barrier
to the wider acceptance of their product offerings in the marketplace.
Our catalog service competes with Quick Response Systems Corporation,
or QRS. QRS and Global eXchange Services have dominated the catalog service
industry for more than ten years, but we believe that our catalog pricing and
functionality may create competitive advantages for our service.
Furthermore, we rely on many of our competitors to interconnect with
our service to promote an "open community" so all businesses can take advantage
of the efficiencies of EDI, no matter what network they choose as their
provider. In September 2001 and April 2002, two of our competitors, GXS and
Sterling Commerce, terminated existing interconnect agreements with us and we
made alternative arrangements to serve our customers.
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 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. 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. If we cannot keep pace with these
changes, and maintain the performance and reliability of our network, 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 and other proposed services and that keep pace with continuing changes
in information technology and customer requirements. As indicated above, we have
developed new product and service offerings (AS2 and Data Synchronization) to
improve our value proposition and have incorporated this communication
methodology into our standard network services and are achieving success in
stemming a migration of our customers' network traffic to those who could
otherwise purchase an AS2 software offering. Furthermore, we are actively
searching for ways to expand our business and the products and services we offer
to keep pace with the rapidly changing technology, customer demands and intense
competition. However, there can be no assurance that we will be able to keep
pace with these changes and if we are not successful in developing and marketing
enhancements to our ICC.NET or other proposed services that respond to
technological change or customer demands, our business will suffer.
If we are unable to obtain necessary future capital, our business will
suffer. As of July 31, 2004, we had unrestricted cash and marketable securities
in the amount of approximately $3,560,000. We may need to raise additional funds
if competitive pressures or technological changes are greater than anticipated,
if we are unable to increase revenue at anticipated rates, if our expenses
increase significantly or if our customers delay payment of our receivables. 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.
6
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 online architecture. From the evening of April 6, 2004
until 6:00 a.m. on April 8, 2004, our network lost connectivity to the network
of one of our interconnection service providers because of equipment failure at
the supplier's data center. These types of occurrences could also cause users to
perceive our services as not functioning properly and therefore cause them to
use other methods to deliver and receive information. We have limited control
over these third parties and cannot assure you that we will be able to maintain
satisfactory relationships with any of them on acceptable commercial terms or
that the quality of services that they provide will remain at the levels needed
to enable us to conduct our business effectively.
We may suffer systems failures and business interruptions that would
harm our business. Our success depends in part on the efficient and
uninterrupted operation of our service which is required to accommodate a high
volume of traffic. Almost all of our network operating systems are located at
the Securities Industry Automation Corporation, or SIAC. SIAC runs all computing
operations for the New York Stock Exchange and the American Stock Exchange. 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.
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 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 and sales and
marketing staffs.
If we lose our net operating loss carryforward of approximately $75
million, 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 common stock over a three-year period. Purchases of our class A
common stock in amounts greater than specified levels could inadvertently create
a limitation on our ability to utilize our net operating losses for tax purposes
in the future. We are currently subject to a limitation on the utilization of
our net operating loss carryforward.
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, one 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.
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. 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 and higher-profile employment opportunities than
we can.
7
We depend on our intellectual property, which may be difficult and
costly to protect. If we fail to adequately protect our proprietary rights,
competitors could offer similar products relying on technologies we developed,
potentially harming our competitive position and decreasing our revenues. We
attempt to protect our intellectual property rights by limiting access to the
distribution of our software, documentation and other proprietary information
and by relying on a combination of patent, copyright, trademark and trade secret
laws. In addition, we enter into confidentiality agreements with our employees
and certain customers, vendors and strategic partners. In some circumstances,
however, we may, if required by a business relationship, provide our licensees
with access to our data model and other proprietary information underlying our
licensed applications.
Despite the precautions we take, it may be possible for unauthorized
third parties to copy aspects of our current or future products or to obtain and
use information that we regard as proprietary. Policing unauthorized use of
software is difficult, and some foreign laws do not protect proprietary rights
to the same extent as United States laws. Litigation may be necessary in the
future to enforce our intellectual property rights, to protect our trade secrets
or to determine the validity and scope of the proprietary rights of others, any
of which could be costly and adversely affect our operating results.
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 invalidate our proprietary rights.
We could be required to enter into royalty and licensing agreements, which may
be costly or otherwise burdensome or which may not be available on terms
acceptable to us.
Risks Relating to the Internet and Online Commerce Aspects of Our Business
If Internet usage does not continue to grow or if its infrastructure
fails, our business will suffer. If the Internet does not gain increased
acceptance for business-to-business electronic commerce, the growth of our
business will be adversely affected. 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.
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.
8
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. 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 our Class A Common Stock
Trading of our class A common stock is volatile. The market price of
our class A common stock has been very volatile in the past, ranging from a high
of $2.55 to a low of $0.80 between January 1, 2003 and the date of this
prospectus, and is likely to fluctuate substantially in the future. If our class
A common stock fails to maintain a minimum bid price of $1.00 for 30 consecutive
trading days, it may no longer be eligible for trading in The Nasdaq SmallCap
Market.
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. Between January 1, 2002 and August 2004, we registered on one or
more registration statements, an aggregate of 3,992,024 shares of class A common
stock (not including the shares covered by this registration statement). In
connection with our acquisition of ECS, we are required to register an
additional 1,941,409 shares of class A common stock in the near future. 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.
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 trading on the Nasdaq SmallCap Market. 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 many factors, including investors' perceptions of our
business, our financial condition, operating results and prospects, the use of
the Internet for business purposes and general economic and market conditions.
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 4,979,575 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. In addition, issuance of preferred shares could have the effect of
delaying, deterring or preventing an unsolicited change in control of our
company, or could impose various procedural and other requirements that could
make it more difficult for holders of our class A common stock to effect certain
corporate actions, including the replacement of incumbent directors and the
completion of transactions opposed by the incumbent Board of Directors. The
rights of the holders of our class A common stock would be subject to, and may
be adversely affected by, the rights of the holders of any preferred stock that
may be issued in the future. We are also subject to Section 203 of the Delaware
General Corporation Law, which prohibits us from engaging in a business
combination with any "interested" stockholder (as defined in Section 203) for a
period of three years from the date the person becomes an interested
stockholder, unless certain conditions are met.
We may have to use 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.
9
RECENT DEVELOPMENTS
On June 22, 2004, we announced the completion of our acquisition of
ECS. In accordance with the terms of the Agreement and Plan of Merger, dated May
25, 2004, ICC Acquisition Corporation, Inc., a Georgia corporation and our
wholly owned subsidiary, merged with and into ECS and ECS became our wholly
owned subsidiary. ECS provides Internet-based e-business solutions to suppliers
needing to comply with EDI mandates from major retailers, as well as services to
the banking industry and special electronic solutions for a range of customers.
ECS was founded in 1996 and is headquartered in Norcross, Georgia. ECS reported
approximately $1,764,000 million in revenue and a net loss of approximately
$120,000 for the year ended December 31, 2003. For the four months ended April
30, 2004, ECS reported approximately $701,000 (unaudited) in revenue and a net
profit of approximately $103,000 (unaudited). In connection with the acquisition
of ECS, we issued a total of 1,941,409 shares of our class A common stock, of
which 345,183 shares were issued in exchange for $471,171.59 of outstanding debt
ECS owed to certain of its shareholders and in payment of ECS's legal fees. We
have agreed to file a registration statement under the Securities Act of 1933,
as amended, to cover the resale of our shares of class A common stock issued in
connection with the acquisition of ECS and to maintain the effectiveness of the
registration statement until June 22, 2005.
On March 31, 2004, we announced a restructuring of our senior
management. Mr. G. Michael Cassidy was appointed Chairman and President, Mr.
Thomas J. Stallings was appointed Chief Executive Officer and Mr. Arthur R.
Medici was appointed Chief Operating Officer. On June 14, 2004, Mr. Stallings,
was appointed to our Board of Directors. We also announced that our Board of
Directors had accepted the resignation of Walter M. Psztur, our Chief Financial
Officer. Michael Piccininni, our Corporate Controller, was appointed to fulfill
the responsibilities of Chief Financial Officer while we search for a new Chief
Financial Officer.
USE OF PROCEEDS
If the warrants are exercised in full for cash, we would realize
proceeds, before expenses, in the amount of approximately $2,514,543. The net
proceeds from the exercise of the warrants will be used for general corporate
purposes.
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 shares of class A common stock by the selling
stockholders.
DESCRIPTION OF TRANSACTION
Private Placement
On April 20, 2004, we completed a private placement of 2,831,707 shares
of our class A common stock and warrants to purchase an aggregate of 849,507
shares of our class A common stock. The private placement resulted in net
proceeds to us of approximately $4,500,000. The warrants are exercisable for 5
years, commencing on October 20, 2004, at $2.22 per share, subject to
appropriate adjustment for stock splits, combinations and dividends.
We entered into a registration rights agreement with the investors
dated as of April 20, 2004. Pursuant to the registration rights agreement, we
agreed to file with the SEC a registration statement covering the resale of all
of our shares of class A common stock issued in the private placement or
issuable upon the exercise of the warrants issued in the private placement and
covered by this prospectus pursuant to Rule 415 of the Securities Act.
Accordingly, we filed a registration statement on Form S-3, of which this
prospectus forms a part, with respect to the resale of these shares from time to
time. In addition, we agreed to use our commercially reasonable efforts to cause
the registration statement to be declared effective under the Securities Act by
August 18, 2004, and to use commercially reasonable efforts to keep the
registration statement effective for two years following the closing of the
private placement, unless the shares of our class A common stock issued or
issuable in the private placement and covered by this prospectus have been sold
and the distribution of the shares has been completed. Due to the fact that the
registration statement was not declared effective by August 18, 2004, the
Company has incurred and is required to pay the holders of shares issued in the
private placement
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liquidated damages of one percent (1%) of the purchase price paid for the shares
by the holders for each 30 day period (or portion thereof on a pro rata basis)
following August 18, 2004 during which the registration statement has not been
declared effective by the SEC. In addition, if the effectiveness of the
registration statement is not maintained for the required period, we may be
required to pay the same liquidated damages for each 30 day period (or portion
thereof on a pro rata basis) during which the effectiveness is not maintained.
We engaged Duncan Capital as the placement agent in connection with the
private placement and paid Duncan Capital fees of $396,439 in cash and issued
warrants to Duncan Capital to purchase up to 283,170 shares of our Class A
common stock. These warrants contain the same terms and conditions as the
warrants issued to the investors in the private placement.
SELLING STOCKHOLDERS
The table below sets forth information, as of July 15, 2004, regarding
the beneficial ownership of the shares of class A common stock by the selling
stockholders. As used herein, "selling stockholders" includes donees and
pledgees selling shares of class A common stock received from the persons or
entities listed below after the date of this prospectus.
Number of Number of Class A Common Stock
Shares of Shares of
Class A Class A
Common Stock Common Stock Beneficially Owned
Beneficially Owned After Offering (2)
Selling Stockholders Before Offering (1) Offered (1) Number Percent*
Alpha Capital AG (3) 297,142 297,142 0 *
Amnon Mandelbaum 78,000 78,000 0 *
Anthony G. Orphanos 174,272 (4) 74,284 99,998 *
Bridges and PIPES LLC (5) 85,428 85,428 0 *
Capital Venture International (6) 371,428 371,428 0 *
David I. Goodfriend 7,800 7,800 0 *
DKR Soundshore Oasis Holding Fund Ltd. (7) 297,142 297,142 0 *
Duncan Capital Group LLC (8) 268,885 268,885 0 *
Ellen Brous (9) 2,857 2,857 0 *
Elliot Associates, L.P. (10) 148,570 148,570 0 *
Elliot International, L.P. (11) 222,858 222,858 0 *
E.T. 4, L.P., E.R.4, Inc. General Partner (12) 37,142 37,142 0 *
Harvey Blitz 209,819 (13) 55,714 154,105 *
John A. Moore 62,846 (14) 37,142 25,704 *
Linda Bassani 37,142 37,142 0 *
MFN LLC (15) 185,714 185,714 0 *
Raven Offshore Master L.P. (16) 185,714 185,714 0 *
Robert W. Holmes 74,284 74,284 0 *
RHP Master Fund, Ltd. (17) 260,000 260,000 0 *
Rockwood Group LLC (18) 148,570 148,570 0 *
Russell P. Green (19) 18,570 18,570 0 *
Stephen J. Posner (20) 253,476 (20) 48,570 204,906 *
Sunrise Equity Partners, L.P. (21) 650,000 650,000 0 *
TCMP3 Partners (22) 394,385 (22) 185,714 208,671 *
Treeline Investment Partners, L.P. (23) 185,714 185,714 0 *
- ------------------
- ----------------------------------------------------------------------------------------------------------------------------------
* Constitutes less than 1%.
(1) Includes shares of class A common stock issuable upon exercise of the
warrants issued in the private placement. These warrants are not
exercisable until October 20, 2004 and therefore, the shares of class A
common stock issuable upon exercise of the warrants will not be
beneficially owned by the holders of the warrants until the earlier of
August 21, 2004 and the date the warrants are exercised.
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(2) Assumes that all shares of class A common stock covered by the
prospectus are sold in the offering.
(3) Konrad Ackerman and Rainer Posah each may be deemed to beneficially own
and have the power to vote and dispose of all the shares held by Alpha
Capital AG.
(4) Includes 17,142 shares of class A common stock issuable upon the
exercise of warrants.
(5) David Fuchs, the managing member of Bridges and PIPES LLC, may be
deemed to have investment discretion and voting power over the shares
held by Bridges and PIPES LLC.
(6) Includes 85,714 shares of class A common stock issuable upon the
exercise of warrants. Capital Ventures International is an affiliate of
a registered broker-dealer. Capital Ventures International purchased
the shares of class A common stock and warrants issued in the private
placement in the ordinary course of business. At the time of purchase
of the shares of class A common stock and warrants, Capital Ventures
International had no agreements or understandings, either directly or
indirectly, to distribute the shares of class A common stock or
warrants Heights Capital Management, Inc., the authorized agent of
Capital Ventures International ("CVI"), has discretionary authority to
vote and dispose of the shares held by CVI and may be deemed to be the
beneficial owner of the shares. Martin Kobinger, in his capacity as
Investment Manager of Heights Capital Management, Inc., may also be
deemed to have investment discretion and voting power of the shares
held by CVI. Mr. Kobinger disclaims any beneficial ownership of the
shares.
(7) DKR SoundShore Oasis Holding Fund Ltd. (the "Fund") is a master fund in
a master-feeder structure. The Fund's investment manager is DKR Oasis
Management Company LP (the "Investment Manager"). Pursuant to an
investment management agreement among the Fund, the feeder funds and
the Investment Manager, the Investment Manager has the authority to do
any and all acts on behalf of the Fund, including voting any shares
held by the Fund. Seth Fischer is the managing partner of Oasis
Management Holdings LLC, one of the general partners of the Investment
Manager. Mr. Fischer has ultimate responsibility for trading and,
therefore, investment control over the shares of class A common stock
and warrants purchased by the Fund in the private placement.
(8) Represents shares issuable upon the exercise of warrants. Michael Crow
and Dan Purjes are the managers of Duncan Capital Group LLC and have
voting and dispositive power over the shares.
(9) Issuable upon the exercise of warrants received as a fee from Duncan
Capital LLC in connection with the private placement. Ellen Brous is
affiliated with HD Brous & Co., Inc., a registered broker-dealer, and
acquired the warrants in the ordinary course of business. At the time
of purchase of the shares of class A common stock and warrants, Ellen
Brous had no agreements or understandings, either directly or
indirectly, to distribute the shares of class A common stock or
warrants.
(10) Paul E. Singer and Elliott Capital Advisors, L.P., a Delaware limited
partnership in which Mr. Singer is the general partner, are the general
partners of Elliott Associates, L.P. and thus are deemed to be the
beneficial owners of the shares covered by this prospectus on behalf of
Elliott Associates, L.P.
(11) Hambledon, Inc., a Cayman Islands corporation, the general partner of
Elliott International, L.P. and Paul E. Singer, who controls Hambledon,
beneficially own the shares covered by this prospectus on behalf of
Elliott International, L.P. In addition, Elliott International Capital
Advisors, Inc. the investment manager of Elliott International, L.P.,
in which Paul E. Singer and Paul E. Singer Family Trust IRA are
stockholders, directs the voting and disposition of shares owned by
Elliott International, L.P.
(12) E.T. 4, L.P. is an affiliated of a registered broker-dealer and
purchased the shares of class A common stock and warrants issued in the
private placement in the ordinary course of business. At the time of
purchase of the shares of class A common stock and warrants, E.T. 4,
L.P. had no agreements or understandings, either directly or
indirectly, to distribute the shares of class A common stock or
warrants. E.R. 4, Inc., the general partner of E.T. 4, L.P.
beneficially owns and has the power to vote and dispose of all the
shares held by E.T. 4, L.P
(13) Includes 73,142 shares of class A common stock issuable upon the
exercise of warrants.
(14) Includes 10,228 shares of class A common stock issuable upon the
exercise of warrants.
(15) MFN LLC is an affiliate of Ehrenkrantz King Nussbaum Inc., a registered
broker-dealer. MFN LLC purchased the shares of class A common stock and
warrants issued in the private placement in the ordinary course of
business. At the time of purchase of the shares of class A common stock
and warrants, MFN LLC had no agreements or understandings, either
directly or indirectly, to distribute the shares of class A common
stock or warrants. Louis Ottimo, an individual, directs the voting and
disposition of shares owned by MFN LLC.
(16) JDC Capital LLC, the general partner of Raven Offshore Master, L.P., of
which James Crombie is the sole managing member, may be deemed to
beneficially own and have investment discretion and voting power of the
shares held by Raven Offshore Master, L.P.
12
(17) RHP Master Fund, Ltd. is a party to an investment management agreement
with Rock Hill Investment Management, L.P., a limited partnership of
which the general partner is RHP General Partner, LLC. Pursuant to such
agreement, Rock Hill Investment Management directs the voting and
disposition of shares owned by RHP Master Fund. Messrs. Wayne Bloch,
Gary Kaminsky and Peter Lockhart own all of the interests in RHP
General Partner. The aforementioned entities and individuals disclaim
beneficial ownership of the class A common stock and warrants owned by
the RHP Master Fund.
(18) Dan Purjes, the managing member of Rockwood Group LLC, may be deemed to
have investment discretion and voting power of the shares held by
Rockwood Group LLC.
(19) Russell Green is affiliated with HD Brous & Co., Inc., a registered
broker-dealer and purchased the shares of class A common stock and
warrants issued in the private placement in the ordinary course of
business. At the time of purchase of the shares of class A common stock
and warrants, Mr. Green had no agreements or understandings, either
directly or indirectly, to distribute the shares of class A common
stock or warrants.
(20) Includes 11,428 shares issuable upon the exercise of warrants received
as a fee from Duncan Capital LLC in connection with the private
placement. Stephen Posner is an affiliate of HD Brous & Co., a
registered broker-dealer. Mr. Posner purchased the shares of class A
common stock and warrants issued in the private placement in the
ordinary course of business. At the time of purchase of the shares of
class A common stock and warrants, Mr. Posner had no agreements or
understandings, either directly or indirectly, to distribute the shares
of class A common stock or warrants.
(21) Sunrise Equity Partners, L.P. is an affiliate of Sunrise Securities
Corp., a registered broker-dealer. Sunrise Equity Partners, L.P.
purchased the shares of class A common stock and warrants issued in the
private placement in the ordinary course of business. At the time of
purchase of the shares of class A common stock and warrants, Sunrise
Equity Partners, L.P. had no agreements or understandings, either
directly or indirectly, to distribute the shares of class A common
stock or warrants. Sunrise Equity Partners, L.P., is managed by Level
Counter LLC. Nathan Low, Amnon Mandelbaum, Marilyn Adler and David I.
Goodfriend, the member of Level Counter LLC, each may be deemed to
beneficially own and have the power to vote and dispose of all the
shares held by Sunrise Equity Partners, L.P.
(22) Steven Slawson and Walter Schenker each may be deemed to beneficially
own and have the power to vote and dispose of all the shares held by
TCMP3 Partners. Includes, in addition to the warrants purchased in the
private placement, warrants to purchase an additional 208,671 shares of
class A common stock.
(23) Treeline Investment Partners, L.P. is managed by Treeline Management
LLC. Joseph Gil and Sean Deson of Treeline Management LLC each have the
power to vote and dispose of all shares held by Treeline Investment
Partners, L.P.
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, donees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of class A common stock covered by this prospectus on any stock exchange,
market or trading facility on which the shares are traded or in private
transactions. These sales may be at fixed or negotiated prices. The selling
stockholders may use any one or more of the following methods when selling
shares:
o ordinary brokerage transactions and transactions in which the
broker/dealer solicits purchasers;
o block trades in which the broker/dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
o purchases by a broker/dealer as principal and resale by the
broker/dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
13
o put or call options transactions;
o settlement of short sales;
o broker/dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker/dealers engaged by the selling stockholders may arrange for
other brokers/dealers to participate in sales. Broker/dealers may receive
commissions from the selling stockholders (or, if any broker/dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions to exceed
what is customary in the types of transactions involved.
The selling stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock owned by them
and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock from
time to time under this prospectus, or under an amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act
amending the list of selling stockholders to include the donee, pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus.
The selling stockholders and any broker/dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker/dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions under the Securities Act. Each selling stockholder has informed the
Company that it does not have any agreement or understanding, directly or
indirectly, with any person to distribute the shares of class A common stock
covered by this prospectus.
At the time a particular offering of securities is made, to the extent
required, a prospectus supplement will be distributed which will set forth the
number of securities being offered and the terms of the offering, including the
purchase price or the public offering price, the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriters for
securities purchased from the selling stockholders, any discounts, commissions
and other items constituting compensation from the selling security holders and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers.
Pursuant to applicable rules and regulations under the Exchange Act,
any person engaged in the distribution of the securities offered hereby may not
simultaneously engage in market activities for the shares of common stock for a
period of five business days prior to the commencement of such distribution. In
addition, each selling stockholder and any other person who participates in a
distribution of the securities will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M.
These provisions may limit the timing of purchases and may affect the
marketability of the securities and the ability of any person to engage in
market activities for the shares of class A common stock.
We are required to pay all fees and expenses incident to the
registration of the shares of class A common stock covered by this prospectus.
We and the selling stockholders have agreed to indemnify each other or against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
14
DESCRIPTION OF SECURITIES
The following summary description of the material terms of our capital
stock and warrants is not intended to be complete. The terms of our capital
stock are also governed by the provisions of our certificate of incorporation
and bylaws, which are included as exhibits to the registration statement of
which this prospectus is a part, and the Delaware General Corporation Law. You
should read our certificate of incorporation and bylaws very carefully. Some of
the relevant provisions of our certificate of incorporation and bylaws and the
Delaware General Corporation Law are discussed under the heading "Delaware Law
and Certificate of Incorporation and Bylaw Provisions" on page 18 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 and 5,000,000 shares of
preferred stock.
Common Stock
Class A common stock
As of July 31, 2004, there were 19,057,230 shares of class A common
stock outstanding, held of record by approximately 242 stockholders. The class A
common stock is currently trading on the Nasdaq SmallCap 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 C preferred stock and
series D preferred stock or any other series of preferred stock that ICC may
designate and issue in the future.
Class B common stock
There are no shares of class B common stock outstanding, and we do not
intend to issue any shares of Class B common stock. The class B common stock is
identical to the class A common stock, except that each share of class B common
stock is entitled to six votes.
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,
liquidation preference 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, 10,000 shares of
preferred stock as series C preferred stock and 250 shares of preferred stock as
series D preferred stock. No shares of series A preferred stock or series S
preferred stock are outstanding and the Board of Directors does not intend to
authorize the issuance of any of these shares.
Future issuances of preferred stock may have the effect of delaying or
preventing a change in control of ICC. The issuance of preferred stock could
decrease the amount of earnings and assets available for distribution to the
holders of common stock or could adversely affect the rights and powers,
including voting rights, of the holders of our common stock. In some
circumstances, the issuance of preferred stock could have the effect of
decreasing the market price of our common stock.
15
Series C Preferred Stock
As of July 31, 2004, 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 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 January 5, 2005. 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 holder of
series C preferred stock is 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 common stock or any other class or series of stock
(including the series D preferred stock).
The holder of the outstanding shares of series C preferred stock is
entitled to a 4% annual dividend payable in cash or in shares of class A common
stock (valued at the then market price of the class A common stock), at the
option of ICC. These dividends are payable on each January 1 and commenced on
January 1, 2001. ICC elected to issue 111,142 shares of class A common stock in
payment of the dividend due on January 1, 2001, 98,839 shares of class A common
stock in payment of the dividend due on January 1, 2002, 302,343 shares of class
A common stock in payment of the dividend due on January 1, 2003 and 361,702
shares of class A common stock in payment of the dividend due on January 1,
2004.
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. As of the
date of this prospectus, each share of series C preferred stock is entitled to
approximately 44.76 votes.
Series D Preferred Stock
As of July 31, 2004, ICC had 250 shares of series D preferred stock
outstanding, held by one stockholder.
Series D preferred stock is convertible, at the option of the holder,
into class A common stock. Each share of series D 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 conversion price for the
series D preferred stock is $1.30 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.
Subject to the existence of certain conditions, the series D preferred
stock is redeemable, in whole or in part, by ICC, commencing on the day that is
the second anniversary after the first date on which the series D preferred
stock is issued. The redemption price for each share of series D preferred stock
is $1,000 plus all accrued by unpaid dividends. Notice of redemption must be
given not less than fifteen days nor more than 45 days before the redemption
date.
Upon a voluntary or involuntary liquidation, dissolution,
reorganization or winding-up of ICC, the holder of series D preferred stock are
entitled to receive an amount equal to $1,000 per share of series D preferred
stock plus accrued and unpaid dividends before any distribution is made to
holders of class A common stock and any issued class of securities ranking
junior in liquidation preference to the series D preferred stock but after
provision for the holders of series C preferred stock.
16
The holder of the outstanding shares of series D preferred stock is
entitled to a dividend when and if declared by the Board of Directors.
Each share of series D preferred stock is entitled to a number of votes
equal to the number of whole shares of class A common stock into which each
share of series D preferred is convertible as of the record date for the
determination of stockholders entitled to vote on any matter submitted to
stockholders. As of the date of this prospectus, each share of series D
preferred stock is entitled to approximately 769 votes.
Warrants
In connection with our strategic global alliance with Cable & Wireless
plc, we issued to Cable & Wireless warrants to purchase 400,000 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
appropriate adjustment in the event of any stock dividend, subdivision or
combination of the outstanding class A common stock. As of the date of this
prospectus, all of these warrants were outstanding.
On October 29, 2001, we sold in a private placement 1,159,716 shares of
class A common stock and warrants to purchase 347,915 additional shares of class
A common stock for gross proceeds of $3,189,219. The warrants expire in October
2006 and are exercisable at $3.58 per share. The warrants are redeemable at our
option for $.10 per warrant commencing in April 2003 if the closing bid price of
our class A common stock is at least 200% of the exercise price of the warrants
for 30 consecutive trading days. In connection with the private placement, we
incurred fees of $152,111, of which $35,000 was paid in cash and $117,511 was
paid by issuing warrants to purchase 50,000 shares of class A common stock.
These warrants have substantially the same terms as the warrants issued in the
October 2001 private placement.
We commenced a warrant exchange offer on April 23, 2002 that ended on
May 31, 2002. The offer was made to investors who participated in the private
placement on October 29, 2001 and to holders of warrants issued as fees in
connection with the private placement. The offer reduced the exercise price of
the warrants issued in the private placement to $2.50 per share for those
investors that agreed to exercise those warrants. In addition, for each share of
class A common stock purchased pursuant to the warrant exercise, a new five-year
warrant to purchase an equivalent number of shares of class A common stock was
issued. These warrants have an exercise price of $3.50 per share and otherwise
contain the same terms as the warrants issued in the private placement. We
received $659,288 in proceeds and issued a total of 263,715 shares of class A
common stock and warrants to purchase the same number of shares of class A
common stock.
On July 11, 2002, we entered into a settlement agreement with ING
Merger, LLC and ING Capital, LLC, a wholly-owned subsidiary of ING Merger,
pursuant to which, we issued to ING Capital warrants to purchase 60,000 shares
of class A common stock at an exercise price of $3.58 per share in settlement of
outstanding fees owed to ING Barings LLC. The warrants are exercisable for a
five-year period. We may redeem the warrants, at our option, if the closing bid
price of the class A common stock exceeds 200% of the exercise price for a
period of 30 consecutive trading days and if the shares of stock deliverable
upon exercise may be sold in whole. The redemption price is ten cents per
warrant.
On April 30, 2003 and May 1, 2003, we sold in a private placement
1,682,683 shares of our class A common stock, warrants to purchase an aggregate
of 1,499,985 shares of our class A common stock at an exercise price per share
of $1.47 and 250 shares of our Series D Preferred Stock, resulting in gross
proceeds of approximately $2,085,500. In addition, we issued 48,076 shares of
class A common stock and warrants to purchase 38,460 shares of our class A
common stock at an exercise price per share of $1.47 in settlement of certain
outstanding payables valued at $50,000, the invoice amount of the services
provided. The Series D Preferred Stock is initially convertible into 192,307
shares of class A common stock. The warrants are exercisable until the fifth
anniversary of the date of issuance. In addition, the warrants are redeemable at
our option for $.10 per warrant commencing on the date the warrants were issued
if the closing bid price of our class A common stock exceeds 200% of the
exercise price of the warrants for 30 consecutive trading days. In addition, in
connection with the private placement that closed on April 30, 2003 and May 1,
2003, we incurred fees of $325,750, of which $237,938 was payable in cash and
$87,802 was
17
paid by issuing warrants to purchase 110,680 shares of class A common stock.
These warrants have substantially the same terms as the warrants issued in the
private placement referred to in this paragraph.
On May 30, 2003, we executed an accounts receivable financing agreement
with Silicon Valley Bank with a term of 1 year, which was extended to August 31,
2004. In connection with the financing agreement, we issued to Silicon Valley
Bank warrants to purchase 40,000 shares of our class A common stock. The
warrants are immediately exercisable at an exercise price of $1.39 per share,
equal to the fair market value of our class A common stock on the date of
closing of the financing agreement. The warrants are exercisable for a
seven-year period.
Delaware Law and Certificate of Incorporation and Bylaw Provisions
The following is a summary description of some 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 our
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 our vulnerability to an unsolicited takeover proposal that
does not contemplate the acquisition of all of our 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 the continuity and stability of the board of directors and our
business strategies and policies 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 replacing a majority
of the board of directors for two years.
Exculpation and 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.
18
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 has been passed upon by Kramer Levin Naftalis & Frankel LLP, New
York, New York.
EXPERTS
The consolidated financial statements and related financial statement
schedules, incorporated in this prospectus by reference from Internet Commerce
Corporation's Current Report on Form 8-K dated August 19, 2004, which contain
the consolidated financial statements for the year ended July 31, 2003, have
been audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their report (which report expresses an
unqualified opinion and includes an explanatory paragraph referring to the
Company's adoption of the provisions of Statement of Financial Accounting
Standards ("SFAS") No. 141, "Business Combinations," and SFAS No. 142, "Goodwill
and Other Intangible Assets," effective August 1, 2001), which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Electronic Commerce Systems,
Inc., as of and for the year ended December 31, 2003, incorporated in this
prospectus by reference from Internet Commerce Corporation's Current Report on
Form 8-K/A dated August 17, 2004, have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
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 SmallCap 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:
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(a) Our Annual Report on Form 10-K for the year ended July 31, 2003;
(b) Our Quarterly Reports on Form 10-Q for the quarters ended October 31, 2003,
January 31, 2004 and April 30, 2004;
(c) Our Current Reports on Form 8-K dated March 17, 2004, March 31, 2004, April
1, 2004, April 8, 2004, April 20, 2004, May 25, 2004, June 14, 2004 and
June 22, 2004, our Current Report on Form 8-K/A dated August 17, 2004 and
our Current Report on Form 8-K dated August 19, 2004; and
(d) The description of our class A common stock contained in our Rule 424
prospectus filed with the SEC on July 18, 1995, including any amendments or
reports filed for the purpose of updating the description. See also
"Description of Securities" beginning on page 14 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
20
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)...............................$ 765.98
Printing and engraving fees and expenses....................$ 2,000.00
Legal fees and expenses.....................................$ 50,000.00
Accounting fees and expenses................................$ 15,000.00
Miscellaneous...............................................$ 2,234.02
----------
Total.......................................................$ 70,000.00
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, or
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 statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
certificate of incorporation, 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.
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 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
and our stockholders to the fullest extent permitted by Section 102(b)(7) of the
DGCL.
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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 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 Securities
Exchange Act of 1934, as amended, as indicated in parenthesis:
Exhibit No. 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 (5)
2.2 Agreement and Plan of Merger among ICC, IDC, and the selling
shareholders of IDC (3)
2.3 Form of Agreement and Plan of Merger dated May 25, 2004 by
and among ICC, ICC Acquisition Corporation, Inc., Electronic
Commerce Systems, Inc. and certain shareholders thereof. (9)
4.1 Specimen Certificate for Class A Common Stock (2)
4.2 Form of Class A Bridge Warrant issued in the 1998 bridge
financing (1)
4.3 Warrant Agreement dated January 12, 2000, by and among ICC
and Cable and Wireless USA, Inc. (4)
4.4 Form of Registration Rights Agreement dated as of October 29,
2001 by and among ICC and the purchasers identified therein
(7)
4.5 Registration Rights Agreement dated as of October 29, 2001 by
and between ICC and Amaranth Trading LLC (6)
4.6 Form of Class A Common Stock Warrant issued in the October
29, 2001 private placement (6)
4.7 Form of Warrant Agreement issued in the April 30, 2003 and
May 1, 2003 private placement (7)
4.8 Form of Securities Purchase Agreement dated as of April 15,
2004 by and among ICC and the purchasers named therein (8)
4.9 Form of Warrant Agreement dated as of April 20, 2004 (8)
4.10 Form of Registration Rights Agreement dated as of April 20,
2004 by and among ICC and the purchasers named therein (8)
4.11 Registration Rights Undertaking dated as of June 22, 2004, by
ICC, in favor of the shareholders of Electronic Commerce
Systems, Inc. (10)
5.1 Legal Opinion of Kramer Levin Naftalis & Frankel LLP
23.1 Consent of Deloitte & Touche LLP *
23.2 Consent of Deloitte & Touche LLP *
23.3 Consent of Kramer Levin Naftalis & Frankel LLP (included in
Exhibit 5.1).
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- ----------
* Filed herewith.
(1) Incorporated by reference to ICC's registration statement on Form S-3
(File no. 333-80043), as filed with the Securities and Exchange
Commission on June 4, 1999.
(2) Incorporated by reference to ICC's registration statement on form SB-2
(File no. 33-83940).
(3) Incorporated by reference to ICC's Quarterly Report on Form 10-QSB for
the quarter ended October 31, 1997, as filed with the Securities and
Exchange Commission on December 12, 1997.
(4) Incorporated by reference to Amendment No. 1 to ICC's registration
statement on Form S-3 (File no. 333-93301), as filed with the
Securities and Exchange Commission on February 8, 2000.
(5) Incorporated by reference to ICC's Current Report on Form 8-K dated
June 14, 2000, as filed with the Securities and Exchange Commission on
June 15, 2000.
(6) Incorporated by reference to ICC's registration statement on Form S-3
(file No. 333-99059), as filed with the Securities and Exchange
Commission on August 30, 2002.
(7) Incorporated by reference to ICC's Current Report on Form 8-K dated
April 30, 2003, as filed with the Securities and Exchange Commission
on May 2, 2003.
(8) Incorporated by reference to ICC's Current Report on Form 8-K dated
April 20, 2004, as filed with the Securities and Exchange Commission
on April 20, 2004.
(9) Incorporated by reference to ICC's Current Report on Form 8-K dated
May 25, 2004, as filed with the Securities and Exchange Commission on
May 26, 2004.
(10) Incorporated by reference to ICC's Current Report on Form 8-K dated
June 22, 2004, as filed with the Securities and Exchange Commission on
June 22, 2004.
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 of 1933;
(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 information
required to be included in a post-effective amendment by such clauses is
contained in periodic reports filed by the registrant with the Commission
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
of 1933, 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.
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(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.
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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-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 August
19, 2004.
Internet Commerce Corporation
By: /s/ Thomas J. Stallings
-----------------------
Thomas J. Stallings
Chief Executive Office
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on August 19,
2004 the capacities indicated below.
Signature Title
- --------- -----
/s/ Thomas J. Stallings Chief Executive Officer (Principal
- ----------------------- Executive Officer)
Thomas J. Stallings
/s/ Michael Piccininni Corporate Controller (Principal Financial
- ----------------------- and Accounting Officer)
Michael Piccininni
/s/ * Director
- ---------------------
Richard J. Berman
/s/ * Director
- ---------------------
Spencer I. Browne
/s/ * Director
- ---------------------
G. Michael Cassidy
/s/ * Director
- ---------------------
Kim D. Cooke
/s/ * Director
- ---------------------
Charles C. Johnston
/s/ * Director
- ---------------------
Arthur R. Medici
* By Thomas J. Stallings, as attorney-in-fact
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EXHIBIT INDEX
Exhibit No. 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 (5)
2.2 Agreement and Plan of Merger among ICC, IDC, and the selling
shareholders of IDC (3)
2.3 Form of Agreement and Plan of Merger dated May 25, 2004 by
and among ICC, ICC Acquisition Corporation, Inc., Electronic
Commerce Systems, Inc. and certain shareholders thereof. (9)
4.1 Specimen Certificate for Class A Common Stock (2)
4.2 Form of Class A Bridge Warrant issued in the 1998 bridge
financing (1)
4.3 Warrant Agreement dated January 12, 2000, by and among ICC
and Cable and Wireless USA, Inc. (4)
4.4 Form of Registration Rights Agreement dated as of October 29,
2001 by and among ICC and the purchasers identified therein
(7)
4.5 Registration Rights Agreement dated as of October 29, 2001 by
and between ICC and Amaranth Trading LLC (6)
4.6 Form of Class A Common Stock Warrant issued in the October
29, 2001 private placement (6)
4.7 Form of Warrant Agreement issued in the April 30, 2003 and
May 1, 2003 private placement (7)
4.8 Form of Securities Purchase Agreement dated as of April 15,
2004 by and among ICC and the purchasers named therein (8)
4.9 Form of Warrant Agreement dated as of April 20, 2004 (8)
4.10 Form of Registration Rights Agreement dated as of April 20,
2004 by and among ICC and the purchasers named therein (8)
4.11 Registration Rights Undertaking dated as of June 22, 2004, by
ICC, in favor of the shareholders of Electronic Commerce
Systems, Inc. (10)
5.1 Legal Opinion of Kramer Levin Naftalis & Frankel LLP
23.1 Consent of Deloitte & Touche LLP *
23.2 Consent of Deloitte & Touche LLP *
23.3 Consent of Kramer Levin Naftalis & Frankel LLP (included in
Exhibits 5.1)
- ----------
* Filed herewith.
(1) Incorporated by reference to ICC's registration statement on Form
S-3 (File no. 333-80043), as filed with the Securities and
Exchange Commission on June 4, 1999.
(2) Incorporated by reference to ICC's registration statement on form
SB-2 (File no. 33-83940).
(3) Incorporated by reference to ICC's Quarterly Report on Form 10-QSB
for the quarter ended October 31, 1997, as filed with the
Securities and Exchange Commission on December 12, 1997.
(4) Incorporated by reference to Amendment No. 1 to ICC's registration
statement on Form S-3 (File no. 333-93301), as filed with the
Securities and Exchange Commission on February 8, 2000.
(5) Incorporated by reference to ICC's Current Report on Form 8-K
dated June 14, 2000, as filed with the Securities and Exchange
Commission on June 15, 2000.
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(6) Incorporated by reference to ICC's registration statement on Form
S-3 (file No. 333-99059), as filed with the Securities and
Exchange Commission on August 30, 2002.
(7) Incorporated by reference to ICC's Current Report on Form 8-K
dated April 30, 2003, as filed with the Securities and Exchange
Commission on May 2, 2003.
(8) Incorporated by reference to ICC's Current Report on Form 8-K
dated April 20, 2004, as filed with the Securities and Exchange
Commission on April 20, 2004.
(9) Incorporated by reference to ICC's Current Report on Form 8-K
dated May 25, 2004, as filed with the Securities and Exchange
Commission on May 26, 2004.
(10) Incorporated by reference to ICC's Current Report on Form 8-K
dated June 22, 2004, as filed with the Securities and Exchange
Commission on June 22, 2004.
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