As filed with the Securities and Exchange Commission on September 3, 1999
Registration No. ______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
INTERNET COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3645702
- ------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
805 Third Avenue
New York, New York 10022
(Address of Principal Executive Offices)
---------------
1994 STOCK OPTION PLAN
(Full title of the plan)
Dr. Geoffrey S. Carroll
805 Third Avenue
New York, New York 10022
(Name and address of agent for service)
(212) 271-7640
(Telephone number, including area code,
of agent for service)
Copies to:
Peter S. Kolevzon, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered (1) Per Share (2) Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
Class A
Common Stock 1,960,000 shares $ 11.3125 $ 22,172,500 $6,193.96
========================================================================================================================
(1) This registration statement shall also cover any additional shares of
class A common stock which become issuable under the plan by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the registrant's outstanding shares of
class A common stock.
(2) The proposed maximum offering price per share has been estimated solely
to calculate the registration fee under Rule 457(c) of the Securities
Act of 1933, as amended (the "Securities Act"), based upon the average
of the high and low prices for the class A common stock reported on the
Nasdaq SmallCap Market on September 1, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We hereby incorporate by reference in this registration statement the
following documents:
(a) Our annual report on Form 10-KSB for the year ended July 31,
1998;
(b) Our quarterly reports on Form 10-QSB for the quarters ended
October 31, 1998, January 31, 1999 and April 30, 1999;
(c) Our quarterly reports on Form 10-QSB/A for the quarters ended
October 31, 1998, January 31, 1999 and April 30, 1999;
(d) Our proxy statement for the 1998 Annual Meeting of Shareholders;
(e) Our current report on Form 8-K filed with the SEC on April 20,
1999 and our amendment on Form 8-K/A filed with the SEC on April
28, 1999;
(f) Our current report on Form 8-K filed with the SEC on July 1,
1999; and
(g) The description of our class A common stock contained in our
Rule 424 prospectus filed with the SEC on June 18, 1997,
including any amendments or reports filed for the purpose of
updating the description.
All documents that we subsequently file under Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as it may be amended from time
to time, prior to the filing of a post-effective amendment to this registration
statement which indicates that all securities offered by this registration
statement have been sold or which deregisters all the securities which are then
unsold, are incorporated by reference in this registration statement and will be
a part of this registration statement from the date of filing of the documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware,
referred to as the DGCL, provides that a corporation may indemnify directors and
officers as well as other employees and individuals against expenses, including
attorneys' fees, judgments, fines, and amounts paid in settlement in connection
with specified actions, suits, proceedings whether civil, criminal,
administrative, or investigative, other than action by or in the right of the
corporation, known as a derivative action, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses, including attorneys' fees, incurred in connection with the
defense or settlement of the action, and the statue requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statue provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise. Section 145 thus makes provision for indemnification in terms
sufficiently broad to cover officers and directors, under certain circumstances,
for liabilities arising under the Securities Act of 1933, as it may be amended
from time to time.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) payment of unlawful dividends or unlawful stock purchases or
redemptions, or (iv) any transaction from which the director derived an improper
personal benefit.
Article VII of our by-laws and Article Seventh of our Amended and Restated
Certificate of Incorporation, as further amended, both provide that we shall
indemnify, to the fullest extent permitted by Section 145 of the DGCL, each
person that Section 145 grants us power to indemnify. Article VIII of our
by-laws and Article Seventh of our Amended and Restated Certificate of
Incorporation, as further amended, both provide that no director shall be liable
to us or any of our stockholders for monetary damages for breach of fiduciary
duty as a director, except with respect to (1) a breach of the director's duty
of loyalty to the corporation or its stockholders, (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) liability under Section 174 of the DGCL or (4) a transaction from which
the director derived an improper personal benefit, and that it is the intention
of the foregoing provisions to eliminate the liability of our directors to ICC
or our stockholders to the fullest extent permitted by Section 102(b)(7) of the
DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against such liabilities, other
than the payment by ICC of expenses incurred or paid by a director, officer or
controlling person of ICC in the successful defense of any action, suit or
proceeding, is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
ICC is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this registration
statement, including those exhibits incorporated in this registration statement
by reference to a prior filing of ICC under the Securities Act or the Exchange
Act as indicated in parenthesis:
Exhibit
Number Description
- ------ --------------------------------------------
4.1 Amended and Restated Certificate of Incorporation (3)
4.2 Certificate of Amendment to the Amended and Restated Articles of
Incorporation (1)
4.3 Certificate of Designations-- series A convertible redeemable
preferred stock (3)
4.4 By-laws (4)
4.5 Specimen Certificate for class A common stock (2)
4.6 1994 Stock Option Plan (2)
5 Opinion of Kramer Levin Naftalis & Frankel LLP regarding legality of
the shares of class A common stock being registered pursuant to this
registration statement
9.1 Voting Trust Agreement between the trustees of the voting trust and
various stockholders of ICC (2)
9.2 Amendments to the Voting Trust Agreement (3)
23(ii).1 Consent of Richard A. Eisner & Company, LLP
(1) Incorporated by reference to ICC's annual report on Form 10-KSB for
the year ended July 31, 1998.
(2) Incorporated by reference to ICC's registration statement on Form SB-2
(File no. 33-83940).
(3) Incorporated by reference to ICC's registration statement on Form S-3
(File no. 333-80043).
(4) Incorporated by reference to ICC's current report on Form 8-K filed
with the SEC on July 1, 1999.
Item 9. Undertakings.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 3rd day of
September, 1999.
INTERNET COMMERCE CORPORATION
By: /s/ Geoffrey S. Carroll
--------------------------------------
Dr. Geoffrey S. Carroll
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Geoffrey S. Carroll
- ----------------------- President and Chief September 3, 1999
Dr. Geoffrey S. Carroll Executive Officer
(principal executive officer)
/s/ Walter M. Psztur
- ---------------------- Chief Financial Officer September 3, 1999
Walter M. Psztur (principal financial
and accounting officer)
/s/ Richard J. Berman
- --------------------- Director September 3, 1999
Richard J. Berman
/s/ G. Michael Cassidy
- --------------------- Director September 3, 1999
G. Michael Cassidy
/s/ Michele Golden
- --------------------- Director September 3, 1999
Michele Golden
- --------------------- Director September __, 1999
Charles C. Johnston
/s/ Arthur R. Medici
- --------------------- Director September 3, 1999
Arthur R. Medici
/s/ James Ortenzio
- --------------------- Director September 3, 1999
James Ortenzio
- --------------------- Director September __, 1999
Peter Ruel