As filed with the Securities and Exchange Commission on December 1, 1999
Registration No. 333-89591
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
(Exact name of registrant as specified in its charter)
Delaware 13-3645702
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
805 Third Avenue
New York, New York 10022
(212) 271-7640
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive office)
RICHARD J. BERMAN
Chairman of the Board of Directors
INTERNET COMMERCE CORPORATION
805 Third Avenue
New York, New York 10022
(212) 271-7640
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
PETER S. KOLEVZON, ESQ.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022-3903
(212) 715-9100
--------------------
Approximate date of commencement of proposed sale to the public: at such
time or times after the effective date of this Registration Statement as the
selling stockholders may determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reimbursement plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Title of each class Amount Proposed Proposed maximum Amount
of securities to be to be maximum offering aggregate offering of registration
registered registered (1) price per share (2) price (2) fee (2)
- ---------------------------------------------------------------------------------------------------------------------
Class A Common Stock 98,102 $15.125 $2,179,543 $605.91
- ---------------------------------------------------------------------------------------------------------------------
(1) Includes shares of class A common stock that are issuable upon conversion of
series A convertible redeemable preferred stock and upon the exercise of
warrants.
(2) This registration statement previously covered 144,102 shares of class A
common stock for which the full filing fee was paid.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to Section 8(a), may determine.
SUBJECT TO COMPLETION DATED DECEMBER 1, 1999
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
PROSPECTUS INTERNET COMMERCE CORPORATION
o This prospectus relates to the public offering from time to time of up to
98,102 shares of our class A common stock that may be sold by the persons
listed on page 16 below. These persons are referred to in this prospectus
as selling stockholders.
o Our common stock is traded on The Nasdaq SmallCap Market under the symbol
ICCSA. On November 30, 1999, the last sale price for the common stock was
$40.00.
o Any selling stockholder may sell the common stock on The Nasdaq SmallCap
Market or in privately negotiated transactions, whenever he decides and at
the price he sets. The price at which any of the shares of common stock
are sold and the commissions paid, if any, may vary from transaction to
transaction.
o This investment involves a high degree of risk. You should carefully
consider the risk factors beginning on page 5 of this prospectus before
you decide to invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is December , 1999
TABLE OF CONTENTS
Page
Prospectus Summary ........................................................ 3
Risk Factors .............................................................. 5
Risks Relating to ICC ................................................. 5
Risks Relating to the Internet and Online Commerce Aspects of
our Business .......................................................... 9
Risks Relating to this Offering ....................................... 10
Forward-Looking Statements ................................................ 11
Use of Proceeds ........................................................... 12
Business .................................................................. 12
Selling Stockholders ...................................................... 15
Plan of Distribution ...................................................... 16
Description of Securities ................................................. 18
Legal Matters ............................................................. 23
Experts ................................................................... 23
Where You Can Find More Information ....................................... 23
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this
prospectus. This summary may not contain all of the information that you should
consider before purchasing shares of our class A common stock. You should read
the entire prospectus carefully, including Risk Factors commencing on page 5,
before making an investment decision.
Internet Commerce Corporation, or ICC
Business Description
Our CommerceSense service uses the Internet and our proprietary technology
to deliver our customers' documents and data files to members of their trading
communities, many of which may have incompatible systems, by translating the
documents and data files into any format required by the receiver. We believe
that our CommerceSense service has significant advantages over traditional value
added networks, or VANs, and email-based and other Internet-based systems,
including lower cost, higher level of service, greater transmission speed and
more features.
We use CommerceSense to provide the following services:
o Traditional VAN services -- CommerceSense provides the full suite of
traditional VAN services, but uses the Internet to provide cost
savings and increased capabilities for our customers;
o EDI for web-based retailers -- CommerceSense provides an electronic
document and data file delivery link between web-based retailers and
their vendors that require that documents and data files be
transmitted using electronic data interchange, or EDI, format;
o EDI to fax service -- CommerceSense can translate electronic
documents into fax format and send the documents by fax to our
customers' trading partners that cannot receive electronically
transmitted documents; and
o Large-scale electronic document management and delivery --
CommerceSense can transmit large-scale non-EDI electronic documents
and data files and provides real-time delivery, archiving, security,
authentication and audit services.
Business Strategy
We believe that our CommerceSense service provides a platform with many
applications that will allow our customers to integrate a substantial portion of
their document and data file delivery methods into a single, seamless process
with significantly less administrative effort and cost. We intend to continue to
market CommerceSense as a one-stop electronic document and data delivery service
to the 2,500 largest companies in the United States and abroad that use EDI to
communicate with their vendors. We believe that the cost and ease of use of our
CommerceSense service will allow these companies to request or encourage their
smaller trading partners to conduct electronic commerce using CommerceSense.
The address of our principle executive office is 805 Third Avenue, New
York, New York 10022. Our telephone number at that address is (212) 271-7640.
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Recent Developments
ICC has announced that it has agreed to establish a strategic global
alliance with Cable & Wireless, a global provider of Internet, data, voice and
messaging services, to jointly market and sell their respective product and
service offerings in the business-to-business e-commerce marketplace. Cable &
Wireless will be entitled to commissions for sales of ICC products and services
based on quarterly target levels to be agreed upon. These commissions will be
payable in shares of class A common stock valued at the then fair market value
of such shares. ICC and Cable & Wireless expect to finalize the details of the
alliance over the next 30 days.
As part of these arrangements, Cable & Wireless has agreed to purchase for
$10 million 10,000 shares of a new series of convertible preferred stock of ICC
that is initially convertible into shares of class A common stock at $22.34 per
share. The average closing bid price of the class A common stock for the five
trading days before the definitive agreement was executed and delivered was
$22.21. The preferred stock is entitled to a four percent cumulative, annual
dividend, payable in cash or in kind at ICC's option, and votes together with
the class A common stock. Each share of preferred stock entitles Cable &
Wireless to a number of votes equal to the number of shares of class A common
stock into which the preferred stock is convertible. Cable & Wireless will also
receive 400,000 warrants to purchase class A common stock of ICC. The warrants
are exercisable for five years at $22.21.
ICC has agreed to elect a nominee of Cable & Wireless to its Board of
Directors and to allow Cable & Wireless to participate in any equity offering on
the same terms and conditions as other purchasers to maintain its percentage
interest in ICC.
The transaction with Cable & Wireless is subject to approval of the boards
of both companies.
The Offering
Class A common stock offered
by the selling stockholders....................................... 98,102 shares
Class A common stock to be
outstanding after the offering............................. 2,955,841 shares (1)
Nasdaq SmallCap Market symbol..............................................ICCSA
(1) This information is based on the number of shares of class A common
stock outstanding on November 26, 1999. It includes all of the shares being
offered by this prospectus by the selling stockholders. It excludes (a)
3,329,114 shares of class A common stock issuable upon exercise or conversion of
warrants, series A convertible redeemable preferred stock and class B common
stock outstanding on that date and (b) 1,876,512 shares then issuable under
outstanding options or reserved for issuance under our 1994 stock option plan.
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 a limited operating history and there is insufficient historical
information to determine whether we will successfully implement any of our
business strategies. We were founded as Infosafe Systems, Inc. in November 1991
and from 1991 to 1997 we conducted limited operations and developed products
that we were unable to exploit commercially and consequently discontinued. In
1998, we shifted our business emphasis to focus exclusively on the development
and marketing of our CommerceSense service and launched the current version of
our CommerceSense service commercially in April 1999. As a result, we have only
a limited operating history and there is little historical information on which
to evaluate our business and prospects. We may not be successful in implementing
any of our business strategies.
We have never earned a profit and expect to incur significant losses. We
have incurred significant losses since we were founded in 1991. We have never
earned a profit in any fiscal quarter and, as of July 31, 1999, we had an
accumulated deficit of approximately $23.9 million. We expect our cost of
revenue and operating expenses to increase significantly, especially in the
areas of marketing, customer installation and customer service. As a result, we
expect to incur additional losses in the future.
We may not achieve profitability. The profit potential of our business
model is unproven. Our revenue is dependent on the number of customers who
subscribe to our CommerceSense VAN service and the volume of the data, documents
or other information they send or retrieve utilizing this service. The success
of our CommerceSense VAN service and our other proposed services depends to a
large extent on the future business-to-business electronic commerce using the
Internet, which is uncertain. If we experience a shortfall in our estimated
revenue, we may be unable to adjust spending in a timely manner and may not
achieve profitability.
We currently depend primarily on our CommerceSense VAN service and may not
be able to continue to expand into new business areas. We are currently focusing
on our CommerceSense VAN service. As a result, our financial condition will
depend heavily on the success or failure of this service. It is difficult to
predict demand and market acceptance for this service in the new and rapidly
evolving business-to-business electronic commerce market. If our CommerceSense
VAN service is not successful, our revenue may not increase sufficiently for us
to become profitable.
We are expanding our operations by developing and marketing new and
complementary services using our CommerceSense service as a platform to provide
these additional services or systems. We cannot assure you that we will be able
to continue to do so effectively.
If we are unable to manage our growth, our financial results will suffer.
Our ability to implement our business plan successfully in a new and
rapidly-evolving market requires effective planning and growth management. If we
cannot manage our anticipated growth effectively, our business and financial
results will suffer. We plan to expand our existing operations substantially,
particularly those relating to sales and marketing, customer installation and
technical support. We expect that we will need to continue to manage and to
expand multiple relationships with customers, Internet service providers and
other third parties. We also expect that we will
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need to continue to improve our financial systems, procedures and controls and
will need to expand, train and manage our workforce, particularly our
information technology staff. We also intend to expand our services, which may
require additional resources and employees.
We may face capacity constraints which impede our revenue growth and
business profitability. The satisfactory performance, reliability and
availability of our network infrastructure, customer support and document
delivery systems and our web site are critical to our reputation and our ability
to attract customers and maintain adequate customer service levels. Any
significant or prolonged capacity constraints could prevent customers from
sending or gaining access to their documents or other data or accessing our
customer support services for extended periods of time. This would decrease our
ability to acquire and retain customers and prevent us from achieving the
necessary growth in revenue to achieve profitability. If the amount of traffic
increases substantially and we experience capacity constraints, we will need to
expand further and upgrade our technology and network infrastructure. We may be
unable to predict the rate or timing of increases in the use of our services to
enable us to upgrade our operating systems in a timely manner.
If we do not keep pace with rapid technological changes, customer demands
and intense competition, we will not be successful. Our market is characterized
by rapidly changing technology, customer demands and intense competition. If we
cannot keep pace with these changes, our CommerceSense service could become
uncompetitive and our business will suffer. The Internet's recent growth and the
intense competition in our industry require us to continue to develop strategic
business and Internet solutions that enhance and improve the customer service
features, functions and responsiveness of our CommerceSense VAN and other
proposed services and that keep pace with continuing changes in information
technology and customer requirements. If we are not successful in developing and
marketing enhancements to our CommerceSense VAN service or other proposed
services that respond to technological change or customer demands, our business
will suffer.
If we are unable to obtain necessary future capital, our business will
suffer. As of July 31, 1999, we had cash and marketable securities in the amount
of approximately $4.6 million We have entered into an agreement under which we
expect to sell shares of convertible preferred stock to Cable & Wireless for $10
million. See Recent Developments on page 4 of this prospectus for more
information about this transaction. This financing may not be sufficient and if
we are unable to obtain necessary additional financing, our business will
suffer. We cannot assure you that any additional financing will be available on
reasonable terms or at all. In addition, we may need to raise additional funds
sooner if we attempt to expand more rapidly or if competitive pressures or
technological changes are greater than anticipated. Even if we are able to
obtain additional financing, we will subsequently need to raise additional funds
if we do not become profitable or if achieving profitability takes longer than
we anticipate.
Raising additional funds in the future by issuing securities could
adversely affect our stockholders and negatively impact our operating results.
If we raise additional funds through the issuance of debt securities, the
holders of the debt securities will have a claim to our assets that will have
priority over any claim of our stockholders. The interest on these debt
securities would increase our costs and negatively impact our operating results.
If we raise additional funds through the issuance of class A common stock or
securities convertible into or exchangeable for class A common stock, the
percentage ownership of our then-existing stockholders will decrease and they
may experience additional dilution.
6
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.
We may not be able to compete effectively in the business-to-business
electronic commerce market, which could limit our market share and harm our
financial performance. The business-to-business electronic commerce industry is
evolving rapidly and is intensely competitive. If we are not able to compete
effectively against our current and future competitors, we may lose customers,
may need to lower our prices, may experience reductions in gross margins,
increases in marketing costs or losses in market share, or may experience a
combination of these problems and, as a result, our business will suffer.
Many of our current and potential competitors have significant existing
customer relationships and vastly larger financial, marketing, customer support,
technical and other resources than we do. As a result, they may be able to
respond more quickly to changes in customer requirements or be able to undertake
more extensive marketing campaigns, adopt more aggressive pricing policies and
make more attractive offers to potential customers and employees, or be able to
devote greater resources to the development, promotion and sale of their
services than we can. As a result, we may not be successful in competing against
our competitors.
Our principal competitors include: Harbinger Corporation, GE Information
Services, Inc., International Business Machines Corporation Global Services,
Sterling Commerce, Inc., AT&T Corp. and MCI Communications Corporation. Each of
these competitors has an established VAN that has provided EDI for at least
several years and has long-established relationships with the users of EDI,
including many of our prospective customers.
If we are successful in utilizing our CommerceSense platform to provide
new services, we may enter into different markets and may face the same or
additional competitors, most of which will have substantially greater financial
and other resources than we do.
If we cannot successfully expand our business outside of the United
States, our revenues and operating results will be adversely affected. Our
current and future customers are conducting their businesses internationally. As
a result, an important component of our business strategy is to expand our
international marketing and sales efforts. We have limited experience in
expanding our business outside the United States and if we do not successfully
expand our business in this way, we may lose current and future customers. In
addition, our potential new service offerings may involve delivery of data and
use of the Internet in other countries which may currently have or enact laws or
regulations that restrict our ability to deliver data or use the Internet or
that impose significant taxes for doing so. Loss of customers and restrictions
on delivery of data and use of the Internet will adversely affect our revenues
and operating results.
Losing any of our key personnel could cause our revenues to decline. We
are substantially dependent on the continued services and performance of our
executive officers and other key employees. The loss of the services of any of
our executive officers or other key employees could impede the operation and
growth of our business and cause our revenues to decline. Although all of our
executive officers, except Dr. Geoffrey S. Carroll and Richard Blume, and some
key employees have entered into employment agreements, none of these agreements
prevents any of them from leaving us.
If we cannot hire and retain highly qualified employees, our business and
financial results will suffer. We believe we will need to expand significantly
our information technology, marketing and
7
customer service staffs. Competition for employees in our industry is intense.
If we are unable to attract, assimilate or retain highly qualified employees,
our management may not be able to effectively manage our business, exploit
opportunities and respond to competitive challenges and our business and
financial results will suffer. Many of our competitors may be able to offer more
lucrative compensation packages which include stock options and other
stock-based compensation and higher-profile employment opportunities than we
can.
If we are not able to hire and retain independent contractors, our
business will be harmed. We are substantially dependent on the services of
independent contractors to train customers in the use of CommerceSense. We have
entered into three relationships with independent contractors and need to retain
several other providers of these services to achieve our business plan. If we
fail to hire and retain qualified independent contractors, then our business
will be harmed.
We depend on our intellectual property, which may be difficult and costly
to protect. Other than our decryption/logging/branding patent, our intellectual
property consists of proprietary or confidential information that is not
currently subject to patent or similar protection. The applications to register
ICC.NET, AUDINET, COMMERCESENSE, B2B4B2C and B to B for B to C have now been
allowed as trademarks and await registration. We intend to apply for additional
name and logo marks in the United States and in foreign jurisdictions. No
assurance can be given that registrations will issue on the non-allowed
applications or that interested third parties will not petition the United
States Patent and Trademark Office to cancel our registration. We may not be
able to protect these trademarks. If our competitors or others adopt product or
service names similar to CommerceSense, it may impede our ability to build brand
identity and customer loyalty. We may need to file lawsuits to defend the
validity of our intellectual property rights and trade secrets, or to determine
the validity and scope of the proprietary rights of others. Litigation is
expensive and time-consuming and could divert management's attention away from
running our business.
The validity, enforceability and scope of protection of some types of
proprietary rights in Internet-related businesses are uncertain and still
evolving. If unauthorized third parties try to copy our service or our business
model or use our confidential information to develop competing services, we may
lose customers and our business could suffer. We may not be able to effectively
police unauthorized use of our technology because policing is difficult and
expensive. In particular, the global nature of the Internet makes it difficult
to control the ultimate destination or security of software or other data
transmitted. The laws of other countries may not adequately protect our
intellectual property.
Intellectual property infringement claims against us could harm our
business. Our business activities and our CommerceSense service may infringe
upon the proprietary rights of others and other parties may assert infringement
claims against us. Any such claims and any resulting litigation could subject us
to significant liability for damages and could result in invalidation of our
proprietary rights. We could be required to enter into costly and burdensome
royalty and licensing agreements, which may not be available on terms acceptable
to us, or may not be available at all.
We may suffer systems failures and business interruptions which would harm
our business. Our success depends in part on the efficient and uninterrupted
operation of our service that is required to accommodate a high volume of
traffic. Almost all of our network operating systems are located at a single
leased facility in New York, New York. Our systems are vulnerable to events such
as damage from fire, power loss, telecommunications failures, break-ins and
earthquakes. This could lead to interruptions or delays in our service, loss of
data or the inability to accept, transmit and confirm customer documents and
data. Our business may suffer if our service is interrupted. Although we have
8
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.
Year 2000 issues could affect the performance of our business. We may have
substantial exposure to the year 2000 problem, both with our own systems and
with systems we do not control. The year 2000 problem could harm our business
and financial results. Many currently installed computer systems and software
products have been coded to accept or recognize only two digit entries to define
the applicable year. These systems may erroneously recognize the year 2000 as
the year 1900. Thus could result in major failures or malfunctions.
This risk is particularly significant for our business. We rely on
computer programs and systems in connection with our internal and external
communication networks and systems, including transmissions of information over
the Internet, order processing and fulfillment, accounting and financial
systems, customer access to our web site and other business functions. Based on
our design process and assessment to date, we believe the current versions of
our service and our various systems are year 2000 compliant. However, we cannot
assure you that our programs designed to minimize the impact of the transition
to the year 2000 on the terminal operations software at our facilities and other
date sensitive equipment will be completely successful. In addition, the costs
of implementing these programs may exceed our current estimates. If these
programs are not successful or if their costs exceed our estimates, the date
change from 1999 to 2000 could harm our business. The full extent of any adverse
impact on our business is impossible to determine.
In addition, our customers may not become year 2000 compliant in a timely
fashion or at all. The failure of a customer to become year 2000 compliant will
adversely affect the ability of that customer's trading partners to receive or
utilize the document or data we transmit. As a result, customers that are not
year 2000 compliant may cease using our CommerceSense service, decreasing our
revenues and harming our results of operations.
Risks Relating to the Internet and Online Commerce Aspects of Our Business
If Internet usage does not continue to grow or its infrastructure fails,
our business will suffer. If the Internet does not gain increased acceptance for
business-to-business electronic commerce, our business will not grow or become
profitable. We cannot be certain that the infrastructure or complementary
services necessary to maintain the Internet as a useful and easy means of
transferring documents and data will continue to develop. The Internet
infrastructure may not support the demands that growth may place on it and the
performance and reliability of the Internet may decline.
Privacy concerns may prevent customers from using our services. Concerns
about the security of online transactions and the privacy of users may inhibit
the growth of the Internet as a means of delivering business documents and data.
We may need to incur significant expenses and use significant resources to
protect against the threat of security breaches or to alleviate problems caused
by security breaches. We rely upon encryption and authentication technology to
provide secure transmission of confidential information. If our security
measures do not prevent security breaches, we could suffer operating losses,
damage to our reputation, litigation and possible liability. Advances in
computer capabilities, new discoveries in the field of cryptography or other
developments that render current encryption technology outdated may result in a
breach of our encryption and authentication technology and could enable an
outside party to steal proprietary information or interrupt our operations.
9
Failure of our third-party providers to provide adequate Internet and
telecommunications service could result in significant losses of revenue. Our
operations depend upon third parties for Internet access and telecommunications
service. Frequent or prolonged interruptions of these services could result in
significant losses of revenues. Each of them has experienced outages in the past
and could experience outages, delays and other difficulties due to system
failures unrelated to our on-line architecture. These types of occurrences could
also cause users to perceive our services as not functioning properly and
therefore cause them to use other methods to deliver and receive information. We
have limited control over these third parties and cannot assure you that we will
be able to maintain satisfactory relationships with any of them on acceptable
commercial terms or that the quality of services that they provide will remain
at the levels needed to enable us to conduct our business effectively.
Government regulation and legal uncertainties relating to the Internet
could harm our business. Changes in the regulatory environment in the United
States and other countries could decrease our revenues and increase our costs.
The Internet is largely unregulated and the laws governing the Internet remain
unsettled, even in areas where there has been some legislative action. It may
take years to determine whether and how existing laws such as those governing
intellectual property, privacy and taxation apply to the Internet. In addition,
because of increasing popularity and use of the Internet, any number of laws and
regulations may be adopted in the United States and other countries relating to
the Internet or other online services covering issues such as:
o user privacy;
o security;
o pricing and taxation;
o content; and
o distribution.
Costs of transmitting documents and data could increase, which would harm
our business and operating results. The cost of transmitting documents and data
over the Internet could increase. We may not be able to increase our prices to
cover these rising costs. Several telecommunications companies have petitioned
the Federal Communications Commission to regulate Internet and on-line service
providers in a manner similar to long distance telephone carriers and to impose
access fees on these providers. Also, foreign and state laws and regulations
relating to the provision of services over the Internet are still developing. If
individual states or foreign countries impose taxes or laws that negatively
impact services provided over the Internet, our cost of providing our
CommerceSense and other services may increase.
Risks Relating to this Offering
Shares eligible for future sale by our existing stockholders may adversely
affect our stock price and may render it difficult to sell class A common stock.
The average weekly trading volume of our class A common stock on The Nasdaq
SmallCap Market was, approximately, 86,100 shares during the quarter ended
December 31, 1998, 133,800 shares during the quarter ended March 31, 1999,
116,500 shares during the quarter ended June 30, 1999 and 75,800 shares during
the quarter ended September 30, 1999. On October 18, 1999, our registration
statement on form S-3 became effective. This registration statement covers the
sale of up to 5,476,280 shares of class A common stock by holders of our class A
common stock and holders of our series A preferred stock, class B common stock
and warrants that may be converted into or exchanged for class A common stock.
The market price of our class A common stock could be materially and adversely
affected by sales of even a small percentage of these shares or the perception
that these sales could occur.
10
Our stock price may be extremely volatile and this volatility could
affect your ability to sell your shares at a favorable price. The market price
of our class A common stock is likely to fluctuate substantially in the future.
In the past, companies that have experienced volatility in the market price of
their stock have been subject to securities class action litigation. If we were
subject to a securities class action lawsuit, it could result in substantial
costs and a significant diversion of resources, including management time and
attention.
The market for our common stock may be illiquid, which would restrict your
ability to sell your shares. Our class A common stock is currently trading on
The Nasdaq SmallCap Market. Due to the low weekly trading volume and the large
number of shares being registered by this registration statement, a purchaser of
the shares covered by this prospectus may not be able to find a buyer for the
portion of the shares the purchaser wishes to sell at an acceptable price. It is
possible that the trading market for the class A common stock in the future will
be thin and illiquid, which could result in increased volatility in the trading
prices for our class A common stock. The price at which the class A common stock
will trade in the future cannot be predicted and will be determined by the
market. The price may be influenced by investors' perceptions of our business,
financial condition and prospects, the use of the Internet for business purposes
and general economic and market conditions.
Our class A common stock was delisted from The Nasdaq SmallCap Market on
February 22, 1999 because we did not satisfy the listing criteria. Since then we
have been relisted on The Nasdaq SmallCap Market.
If we lose our $20 million net operating loss carryforward, our financial
results will suffer. Section 382 of the Internal Revenue Code contains rules
designed to discourage persons from buying and selling the net operating losses
of companies. These rules generally operate by focusing on ownership changes
among stockholders owning directly or indirectly 5% or more of the common stock
of a company or any change in ownership arising from a new issuance of stock by
a company. In general, the rules limit the ability of a company to utilize net
operating losses after a change of ownership of more than 50% of its class A
common stock over a three-year period. Purchases of our class A common stock in
amounts greater than specified levels could inadvertently create a limitation on
our ability to utilize our net operating losses for tax purposes in the future.
We are currently subject to a limitation on the utilization of our net operating
loss carryforward and we may suffer further limitation as a result of sales of
class A common stock covered by this prospectus.
Our board of directors can issue preferred stock with rights adverse to
the holders of class A common stock. Our board of directors is authorized,
without further stockholder approval, to determine the provisions of and to
issue up to 4,989,825 shares of preferred stock. We intend to authorize a new
series of preferred stock in connection with our proposed transaction with Cable
& Wireless. See Recent Developments on page 4 of this prospectus for more
information about this transaction. Issuance of preferred shares with rights to
dividends and other distributions, voting rights or other rights superior to the
class A common stock could be adverse to the holders of class A common stock.
We may have to spend significant resources indemnifying our officers and
directors or paying for damages caused by their conduct. The Delaware General
Corporation Law provides for broad indemnification by corporations of their
officers and directors and permits a corporation to exculpate its directors from
liability for their actions. Our bylaws and certificate of incorporation
implement this indemnification and exculpation to the fullest extent permitted
under this law as it currently exists or as it may be amended in the future.
Consequently, subject to this law and to some limited exceptions in our
11
certificate of incorporation, none of our directors will be liable to us or to
our stockholders for monetary damages resulting from conduct as a director.
FORWARD-LOOKING STATEMENTS
This prospectus contains a number of forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Specifically, all statements other than
statements of historical facts included in this prospectus, or incorporated by
reference in this prospectus, regarding our financial position, business
strategy and plans and objectives of management for future operations are
forward-looking statements. These forward-looking statements are based on the
beliefs of management, as well as assumptions made by and information currently
available to management. When used in this prospectus, including the information
incorporated by reference, the words anticipate, believe, estimate, expect, may,
will, continue, intend and plan and words or phrases of similar import, as they
relate to our financial position, business strategy and plans, or objectives of
management, are intended to identify forward-looking statements. These
cautionary statements reflect our current view regarding future events and are
subject to risks, uncertainties and assumptions related to various factors which
include but may not be limited to those listed under the heading Risk Factors
starting on page 5 and other cautionary statements in this prospectus and in the
information incorporated in this prospectus by reference.
Although we believe that our expectations are reasonable, we cannot assure
you that our expectations will prove to be correct. Based upon changing
conditions, should any one or more of these risks or uncertainties materialize,
or should any underlying assumptions prove incorrect, actual results may vary
materially from those described in this prospectus as anticipated, believed,
estimated, expected, intended or planned. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by these cautionary statements.
USE OF PROCEEDS
The selling stockholders are selling all the common stock covered by this
prospectus for their own account. We will not therefore receive any proceeds
from the sale of this class A common stock.
BUSINESS
Internet Commerce Corporation
Industry Background
We believe that although the Internet has become an important new sales
channel, its real value will be in achieving business efficiencies and cost
savings by expanding global business-to-business interconnectedness.
We believe that in an increasingly global economy, improvements in speed
and efficiency in the supply chain between businesses are important and
improvements in the capacity of a business to buy and sell goods and services or
raw materials within its business community becomes an important factor in its
12
ability to compete. Thus, for example, in a just-in-time economy, timeliness,
and not price, may be the most important component in creating competitive
advantage.
The speed and efficiency of the supply chain are hindered by
incompatibilities in technologies and methodologies used to communicate business
information among trading communities, which slow down the flow of information
and create bottlenecks. These incompatibilities stem from the diversity of
trading partners, which may range from members of the Fortune 100 to sole
proprietors providing niche products. Trading partners may therefore have
different communications capabilities and requirements. Some trading partners
may rely on paper or fax to communicate, others exchange data in proprietary
file formats through direct dial-up connections or over the Internet, while the
largest trading partners use electronic methods such as electronic data
interchange, or EDI, over value added networks, or VANs.
The CommerceSense Solution
We believe that our CommerceSense service provides a solution to the
communication difficulties caused by the differences in data formats, networks
and communications methods used by the members of trading communities, and thus
bridges the incompatibility gap and enabling seamless electronic business
communication. Our CommerceSense service can translate incompatible files into a
format any user is capable of receiving and uses the Internet to transmit the
data file by EDI, fax or other format. We believe that users of our
CommerceSense service can thus improve their productivity and reduce their costs
by enabling electronic business-to-business transactions between parties with
different systems.
We believe that our CommerceSense service improves the basic
infrastructure of business-to-business electronic communications by providing
intelligent messaging and routing using the Internet, which, we believe,
improves the security, reliability, ease of use and acceptability of using the
Internet for business-to-business electronic commerce. CommerceSense performs
these functions without requiring that the user purchase any software and at
prices that are, we believe, less than half of the prices currently charged by
traditional VANs.
We designed our CommerceSense service to avoid what we believe are
inefficiencies in traditional VAN services, software products and phone and
manual fax processes, which we believe are more expensive, slower and more
difficult to use than our CommerceSense service. CommerceSense incorporates
proprietary technology and is immediately accessible using a standard Internet
connection and a web browser.
Our CommerceSense service uses the Internet to deliver a higher level of
service and more features than traditional VANs:
o Documents are delivered up to 100 times faster, depending upon the
speed of the customer's Internet connections;
o Our customers may more effectively track, monitor and process
business documents and other data files using our real-time document
management browser screen displays;
o Our CommerceSense service allows us to consistently provide
confirmed delivery of documents and other data files;
o Documents can be delivered either in real-time or retrieved when
convenient for the customer. Real-time delivery reduces the
potential for document corruption, bottlenecks and other problems
associated with batch delivery modes, which are traditionally
store-and-forward and in some cases can take several hours to be
delivered;
13
o Our CommerceSense service can handle transmissions of data other
than standard business documents, such as images, engineering
drawings, architectural blueprints, audio and some types of video;
and
o Our customers enjoy flexibility in creating different document types
and formats for various business applications. For example, our
customers can add their business logo to their documents and can use
their own format for each document type.
In addition, we believe our CommerceSense service offers advantages over
e-mail and other Internet-based electronic commerce systems, such as a full
range of VAN services, translation of a wide variety of data into
customer-specified formats, management of business documents or data files of
virtually any size and of a wide variety, including purchase orders, invoices,
statements, inventory tracking and shipping documents, images, engineering
drawings, architectural blueprints, audio and some types of video. CommerceSense
also provides a complete audit trail of content delivery and customer selection
from a variety of security methods.
We believe that CommerceSense is one of the only Internet-based data
transmission services that is approved to interconnect with the eight largest
traditional VANs, which we believe currently provide EDI services for 90% of
companies capable of using EDI. As a result, we can handle EDI traffic between
our customers and any of their trading partners that choose to continue to use a
traditional VAN and between a customer that uses a traditional VAN and its
trading partners that do not. This provides our customers with the possibility
of maximum penetration into their trading partner community.
EDI for web-based retailers. We provide an electronic document and data file
delivery link between web-based retailers and their vendors. We believe that
many larger vendors require that product orders and other documents be
transmitted using EDI. Web retailers can use our CommerceSense service to comply
with this requirement and thus can reduce their costs and improve their ability
to locate, order, track and deliver products. Our CommerceSense service can
process purchase orders, invoices, order status reports and other files
transmitted between web-based shopping portals of electronic retailers and their
vendors, distributors, and manufacturers and can also manage critical logistics
delivery files. Due to the special requirements and rapid growth of these new
web-based retail companies, we have a dedicated web retailer sales and support
team that offers the retail companies the option to outsource to us all of their
electronic document and data file delivery requirements.
EDI to fax service. Traditional EDI users convert electronic documents into a
faxable format and fax the documents manually to their trading partners that can
not receive documents transmitted electronically in EDI. Our CommerceSense fax
service allows our customers to send a document electronically, which we will
then electronically convert and fax to any of our customer's trading partners
that cannot receive electronically transmitted documents and specify that they
want to receive the document by fax. We believe that our CommerceSense fax
service will result in lower fax costs for our customers as well as reduced
human involvement in the document delivery process and fewer errors. Recently,
several other VANs began offering similar EDI-fax services; however, we believe
that these services cost 3 to 5 times more per page and are currently only
offered domestically. Our customers currently send documents using our
CommerceSense fax service to approximately 900 trading partners.
Large-scale electronic document management and delivery. Our CommerceSense
service can transmit large-scale non-EDI electronic documents and other large
files, which may include catalogs, engineering drawings, graphics and some types
of video. CommerceSense allows customers to manage and distribute these large
files in real-time and provides archiving, security, authentication and audit
services. CommerceSense will support both a publish/subscribe configuration, in
which a customer can publish
14
any number of files for subscribers authorized by the customer to view and/or
download, and a point-to-point-delivery configuration that operates like our
CommerceSense VAN service.
Business Strategy
We believe that our CommerceSense service provides a platform with many
applications that will allow our customers to fulfill a substantial portion of
their electronic document and data delivery requirements with significantly less
administrative effort and cost. We believe that CommerceSense will allow our
customers to send us the majority of their important documents and data files
which we will then be able to transmit to each of the intended recipients in any
form requested by the recipient. Our customers will thus be able to integrate a
substantial portion of their document and data file delivery methods into a
single, seamless process.
A large company that uses EDI to communicate with its vendors is referred
to as a hub; their trading partners, vendors or customers, are referred to as
spokes. We intend to continue to market CommerceSense as a one-stop electronic
document and data delivery service to the 2,500 largest hub companies in the
United States. Due to the cost to the spoke companies of implementing EDI and
using VANs and other electronic document delivery methods, large hub companies
are currently connected electronically to only a small percentage of their
potential spoke companies.
Our current customers conduct their business internationally, and we
intend to service these customers and pursue new international customers by
expanding our marketing and operation to Europe and other places outside the
United States.
We believe that a significant number of these hub companies intend to
expand the use of electronic commerce to more of their spoke companies. Since
small spoke companies using our CommerceSense service require only an Internet
connection or a web browser to receive and transmit documents electronically
and, we believe, will also be able to receive electronic documents using our
CommerceSense fax service, large hub companies may now be able to request or
encourage electronic commerce with their small hub companies. In turn, many of
these spoke companies may become the hub companies for their suppliers, which
should further broaden the reach of our CommerceSense service.
We intend to encourage the use of our CommerceSense service through
exceptional customer service. We currently offer technical support to our
customers twenty-four hour a day, seven days a week. Due to the multiple
redundancies of all of our systems and the stability of the Securities Industry
Automation Corporation, or SIAC, which is the location of our data center, our
CommerceSense service has been fully operational more than 99% of the time.
We intend to seek acquisitions of services, products or companies, joint
ventures or other arrangements which complement or expand our business. However,
we cannot assure you that we will be able to identify appropriate acquisition
candidates in the future or that we will be able to successfully negotiate and
finance the acquisition if an acquisition candidate is identified. If we make
other types of acquisitions, it will be necessary to assimilate the acquired
services, technologies or customers into our operations. If we consummate one or
more significant acquisitions through the issuance of shares of class A common
stock, you could suffer significant dilution of your ownership interests in ICC.
Finally, expanding our business through acquisitions may expose us to new and
different competitors, which will likely have greater financial and other
resources than we do.
We expect to experience seasonality in our business that reflects the
seasonality of the businesses of our customers. We believe that period-to-period
comparisons of our operating results may not be
15
meaningful and that our operating results for any particular period will not
necessarily be a good indicator of our future performance.
SELLING STOCKHOLDERS
From June 1998 to January 1999 we issued 778,500 warrants to investors in
connection with our 1998 bridge financing. Mr. Crabbe and Mr. Travers received
some of these warrants in July 1998 and December 1998, respectively.
We raised $7 million of cash proceeds and converted into equity $2,595,000
of debt through the sale and exchange of series A preferred stock in our private
placement that was completed in April 1999. We issued a total of 9,595 shares of
series A preferred stock in connection with this private placement. Kensington
Capital Limited and Transvest, Ltd. were issued some of these shares of series A
preferred stock. Mr. Crabbe and Mr. Travers hold shares of series A preferred
stock received in April 1999 in exchange for bridge notes which were issued in
July 1998 and December 1998, respectively, in connection with the 1998 bridge
financing.
Southeast Research Partners received 75,000 warrants pursuant to a
consulting agreement with ICC for services rendered commencing in October 1998.
In July 1999, the warrants were exchanged for 63,000 shares of class A common
stock, which were issued directly to GKN Securities, the parent company of
Southeast Research Partners, and Mr. Rosenkrantz, who is an executive officer of
GKN Securities.
On July 1, 1999 we issued 14,641 shares of class A common stock as a
dividend on the series A preferred stock to the holders of series A preferred
stock of record as of July 1, 1999 according to the provisions of the
certificate of designation for the series A preferred stock. Kensington Capital
Limited, Transvest Ltd. Mr. Crabbe and Mr. Travers received some of these
dividends based on their holdings of series A preferred stock.
For further information about the convertible securities discussed in this
section, see Description of Securities on pages 18 to 23.
In the table below is information, as of October 20, 1999, regarding the
beneficial ownership of the shares by the selling stockholders. The number of
shares shown as beneficially owned by the selling stockholders includes all of
the shares of class A common stock to be issued upon conversion in full of all
of the convertible securities described above. The information regarding the
selling stockholders' beneficial ownership after this offering assumes that all
shares of class A common stock offered by the selling stockholders through this
prospectus are actually sold. The presentation is based on 2,955,841 shares of
our class A common stock outstanding as of November 26, 1999, which includes all
of the shares being offered by this prospectus by the selling stockholders.
- ------------------------------------------------------------------------------------------------------------------------
Number of Shares Number of Common Stock
of Common Stock Shares of Beneficially Owned
Beneficially Owned Common Stock After Offering
--------------------------------
Selling Stockholders Before Offering Offered Number Percent
- ------------------------------------------------------------------------------------------------------------------------
GERALD WILLIAM CRABBE 31,744 31,744 0 *
GKN SECURITIES 11,500 11,500 0 *
16
- ------------------------------------------------------------------------------------------------------------------------
Number of Shares Number of Common Stock
of Common Stock Shares of Beneficially Owned
Beneficially Owned Common Stock After Offering
--------------------------------
Selling Stockholders Before Offering Offered Number Percent
- ------------------------------------------------------------------------------------------------------------------------
KENSINGTON CAPITAL 25,116 25,116 0 *
LIMITED
LESTER ROSENKRANTZ 5,500 5,500 0 *
TRANSVEST, LTD. 8,371 8,371 0 *
CHARLES N. TRAVERS 15,871 15,871 0 *
- ----------
* Less than 1%
PLAN OF DISTRIBUTION
We anticipate that the selling stockholders may sell all or a portion of
the shares offered by this prospectus from time to time on The Nasdaq SmallCap
Market, on other securities exchanges or in private transactions, at fixed
prices, at market prices prevailing at the time of sale or at prices reasonably
related to the market price, at negotiated prices, or by a combination of these
methods of sale through:
o ordinary brokerage transactions and transactions in which the broker
solicits purchases;
o sales to one or more brokers or dealers as principal, and the resale by
those brokers or dealers for their account, including resales to other
brokers and dealers;
o block trades in which a broker or dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as principal
to facilitate the transaction; or
o privately negotiated transactions with purchasers.
We are not aware as of the date of this prospectus of any agreements
between the selling stockholders and any broker-dealers regarding the sale of
the shares offered by this prospectus, although we have made no inquiry in that
regard. In connection with distributions of the shares, the selling stockholders
may enter into hedging transactions with broker-dealers. In connection with
these transactions:
o broker-dealers may engage in short sales of the shares covered by this
prospectus in the course of hedging the positions they assume with selling
stockholders;
o the selling stockholders may sell shares of our class A common stock short
and deliver the shares to close out their short positions;
o the selling stockholders may enter into option or other transactions with
broker-dealers that require the delivery to the broker-dealer of the
shares covered by this prospectus, which the broker-dealer may resell
according to this prospectus; and
o the selling stockholders may pledge the shares covered by this prospectus
to a broker or dealer and upon a default, the broker or dealer may effect
sales of the pledged shares according to this prospectus.
17
The selling stockholders and any broker, dealer or other agent executing
sell orders on behalf of the selling stockholders may be considered to be
underwriters within the meaning of the Securities Act. If so, commissions
received by any of these brokers, dealers or agents and profit on any resale of
the shares may be considered to be underwriting commissions under the Securities
Act. These commissions received by a broker, dealer or agent may be in excess of
customary compensation.
All costs, fees and expenses of registration incurred in connection with
the offering will be borne by us. All selling and other expenses incurred by the
selling stockholders will be borne by the selling stockholders.
The selling stockholders also may resell all or a portion of the shares
offered by this prospectus in reliance upon Rule 144 under the Securities Act of
1933, provided that they meet the criteria and conform to the requirements of
that Rule.
We have notified the selling stockholders that they will be subject to
applicable provisions of the Securities Exchange Act of 1934 and its rules and
regulations, including, among others, Rule 102 under Regulation M. These
provisions may limit the timing of purchases and sales of any of the common
stock by the selling stockholders. Rule 102 under Regulation M provides, with
some exceptions, that it is unlawful for the selling stockholders or their
affiliated purchasers to, directly or indirectly, bid for or purchase, or
attempt to induce any person to bid for or purchase, for an account in which the
selling stockholders or affiliated purchasers have a beneficial interest, any
securities that are the subject of the distribution during the applicable
restricted period under Regulation M. All of the above may affect the
marketability of the class A common stock. To the extent required by law, we may
require the selling stockholders, and their brokers if applicable, to provide a
letter that acknowledges compliance with Regulation M under the Exchange Act
before authorizing the transfer of the selling stockholders' shares.
DESCRIPTION OF SECURITIES
The following summary description of the material terms of our capital
stock and warrants is not intended to be complete. Since the terms of our
capital stock must comply with the provisions of our certificate of
incorporation and bylaws, which are included as exhibits to the registration
statement, and the Delaware General Corporation Law, you should read our
certificate of incorporation and bylaws very carefully. The relevant provisions
of our certificate of incorporation and bylaws and the Delaware General
Corporation Law are discussed under the heading Delaware Law and Certificate of
Incorporation and Bylaw Provisions on page 22 of this prospectus.
We have the authority to issue up to 40,000,000 shares of class A common
stock, 2,000,000 shares of class B common stock, 2,000,000 shares of class E-1
common stock, 2,000,000 shares of class E-2 common stock and 5,000,000 shares of
preferred stock, which includes 10,000 shares of series A preferred stock and
175 shares of series S preferred stock.
Common Stock
Class A common stock
18
As of September 30, 1999, there were 1,820,936 shares of class A common
stock outstanding, held of record by approximately 160 stockholders. Class A
common stock is currently traded on The Nasdaq SmallCap Market under the symbol
ICCSA.
Holders of class A common stock are entitled to one vote per share on all
matters to be voted on by our common stockholders. Subject to the preferences of
the preferred stock, the holders of class A common stock are entitled to a
proportional distribution of any dividends that may be declared by the board of
directors, provided that if any distributions are made to the holders of class A
common stock, identical per-share distributions must be made to the holders of
the class B common stock, even if the distributions are in class A common stock.
In the event of a liquidation, dissolution or winding up of ICC, the holders of
class A common stock are entitled to share equally with holders of the class B
common stock in all assets remaining after liabilities and amounts due to
holders of preferred stock have been paid in full or set aside. Class A common
stock has no preemptive, redemption or conversion rights. The rights of holders
of common stock are subject to, and may be adversely affected by, the rights of
the holders of shares of series A preferred stock, series S preferred stock or
any other series of preferred stock that ICC may designate and issue in the
future.
Class B common stock
As of September 30, 1999, there were 115,590 shares of class B common
stock outstanding, held of record by five stockholders.
Class B common stock is convertible into class A common stock on a
one-for-one basis both upon request of the holder of the class B common stock or
automatically upon transfer of the class B common stock to a stockholder that
does not hold any class B common stock before the transfer. Class B common stock
is entitled to six votes per share rather than one vote per share, but in all
other respects each share of class B common stock is identical to one share of
class A common stock.
Class E-1 and E-2 common stock
On May 28, 1999, we called for redemption on June 11, 1999 all outstanding
shares of class E-1 and class E-2 common stock for a total redemption price of
$276.85. On July 31, 1999 there were no shares of class E-1 or E-2 common stock
outstanding.
Preferred Stock
Our certificate of incorporation authorizes our board of directors,
without any approval of our stockholders, to issue up to 5,000,000 shares of
preferred stock from time to time and in one or more series and to fix the
number of shares of any series and the designation, conversion, dividend and
other rights of the series. The board of directors has designated 10,000 shares
of preferred stock as series A preferred stock and 175 shares of preferred stock
as series S preferred stock.
Future issuances of preferred stock may have the effect of delaying or
preventing a change in control of ICC. The issuance of preferred stock could
decrease the amount of earnings and assets available for distribution to the
holders of common stock or could adversely affect the rights and powers,
including voting rights, of the holders of our common stock. In some
circumstances, the issuance of preferred stock could have the effect of
decreasing the market price of our common stock.
Series A preferred stock
19
As of September 30, 1999, ICC had 9,590 shares of series A preferred stock
outstanding, held by approximately 100 stockholders.
Series A preferred stock is convertible, at the option of the holder, into
class A common stock. Each share of series A preferred stock is convertible into
a number of shares of class A common stock determined by dividing $1,000 by the
average market price of the class A common stock for the ten trading days before
the conversion date. However,
o if this average market price is less than $3 per share, the series A
preferred stock provides that the average market price will be
considered to be $3 per share, which results in a maximum of 333
shares which may be issued upon conversion of one share of series A
preferred stock;
o if this average market price is greater than $5 per share, the
series A preferred stock provides that the average market price will
be considered to be $5 per share, which results in a minimum of 200
shares which may be issued upon conversion of one share of series A
preferred stock; and
o until December 31, 1999 each of 8,505 shares of series A preferred
stock is convertible into a maximum of 200 shares of class A common
stock.
As a result of this formula, if all of the series A preferred stock were
converted before January 1, 2000, a maximum of 2,064,334 shares of class A
common stock could be issued in this conversion. If all of the series A
preferred stock were converted after December 31, 1999, a maximum of 3,213,334
shares of class A common stock would be issued in this conversion. The minimum
and maximum conversion rates apply even if the class A common stock is not
traded on The Nasdaq SmallCap Market after January 1, 2000. No fewer than 25
shares may be converted at one time unless the holder then holds fewer than 25
shares and converts all of the holder's shares at that time.
Series A preferred stock is redeemable, in whole or in part, by ICC,
commencing on the third anniversary of the date of issuance. The redemption
price for each share of series A preferred stock is $1,000 plus unpaid
dividends. Notice of redemption must be given 30 days before the redemption
date.
Subject to the rights of stockholders holding any series of ICC preferred
stock that is senior to the series A preferred stock, upon a liquidation,
dissolution or winding up of ICC, the holders of series A preferred stock are
entitled to receive an amount equal to $1,000 per share of series A preferred
stock before any distribution is made to holders of common stock.
The holders of the outstanding shares of series A preferred stock are
entitled to a 4% annual dividend payable in cash or in shares of class A common
stock, at the option of ICC. Thus dividends are payable on each July 1
commencing on July 1, 1999. ICC elected to issue 14,641 shares of class A common
stock in payment of the dividend due on July 1, 1999.
Series A preferred stock has no voting rights except as expressly required
by law.
Series S preferred stock
As of July 1, 1999, ICC had no outstanding shares of series S preferred
stock. ICC does not intend to issue any shares of series S preferred stock in
the future.
20
Voting Trust. Thomas H. Lipscomb, former chairman of the board of
directors and president of ICC, and Alan N. Alpern, former chief financial
officer of ICC, have deposited substantially all the shares of common stock
beneficially owned by them and other members of their families, which includes
class B common stock, into a voting trust until February 18, 2000. As of May 1,
1998, 123,739 shares of class B common stock were forfeited according to the
terms of an escrow agreement dated as of September 11, 1992, as amended
September 20, 1994, and these shares were delivered by the escrow agent to ICC
which holds the shares in treasury. As of September 30, 1999, the shares in the
voting trust represented 20.3% of the total voting power of ICC. However, the
shares in the voting trust would currently represent only 6.4% of the total
voting power of ICC if all of the shares of class A common stock registered by
this registration statement and ICC's registration statement on form S-3
(Registration No. 333-80043) which became effective on October 18, 1999 were
currently outstanding and none of the currently outstanding shares of class B
common stock was converted into class A common stock. The shares of common stock
held in the voting trust will be voted at the direction of a majority of the
non-management directors of ICC and Richard J. Berman, the chairman of ICC, and
Arthur R. Medici, former president and a current director of ICC.
Warrants
As of June 30, 1999, there were 1,184,715 class A warrants outstanding and
950,490 class B warrants outstanding. On June 30, 1999, we commenced an offer to
exchange one share of class A common stock for each 8 outstanding class A
warrants and one share of class A common stock for each 16 outstanding class B
warrants. The exchange offer was completed on July 30, 1999 and, as a result,
ICC issued a total of 148,651 shares of class A common stock in exchange for
868,500 class A warrants and 639,002 class B warrants.
As of September 30, 1999, there were 316,215 class A warrants outstanding.
Each class A warrant entitles the holder upon exercise to purchase one class B
warrant, which is described below, and one share of class A common stock. Each
class A warrant is exercisable for $23.20 and expires in February 2002.
As of September 30, 1999, there were 311,488 class B warrants outstanding.
Each class B warrant entitles the holder upon exercise to purchase one share of
class A common stock. Each class B warrant is exercisable for $31.22 and expires
in February 2002.
The class A and class B warrants are traded in the over-the-counter market
on the OTC Bulletin Board. The number of class A and class B warrants and the
exercise prices of the class A and class B warrants are subject to adjustment in
the event of any subdivision or combination of the outstanding class A common
stock, any stock dividend payable in shares of class A common stock paid to
holders of class A common stock, or any sale of any shares of class A common
stock, or of any rights, warrants, options or securities convertible into or
exercisable for class A common stock, for consideration valued at less than the
market price of the class A common stock at that time. If all the series A
preferred stock remains outstanding on January 1, 2000 and the minimum price at
which it may be converted changes to $3.00 per share, the number of class A
warrants outstanding as of September 30, 1999 would increase to 405,763 and the
number of class B warrants outstanding as of September 30, 1999 would increase
to 399,534, and the exercise prices of the class A warrants would decrease to
$18.08 and the exercise price of the class B warrants would decrease to $24.34.
In connection with our initial public offering, unit purchase options were
issued to D.H. Blair and its designees to purchase 31,000 units for $33.75 per
unit. Upon exercise of these options, the holders are
21
entitled to receive one share of class A common stock, one class A warrant and
one class B warrant. In connection with our 1997 private placement, unit
purchase options were issued to D.H. Blair and its designees to purchase 112,229
of the same units for $15.75 per unit. The unit purchase options issued in
connection with our 1997 private placement are subject to an anti-dilution
adjustment as a result of the private placement of series A preferred stock and
this adjustment would be substantial. On June 30, 1999, D.H. Blair and its
designees exchanged all of these unit purchase options for a total of 105,000
shares of class A common stock.
Investors in our 1998 bridge financing purchased 10% notes with warrants
attached. For each $1 of notes, a purchaser was entitled to 0.3 warrants and we
issued a total of 778,500 warrants in this transaction. Each of these warrants
entitles the holder upon exercise to purchase one share of class A common stock
for $2.50. These warrants expire between December 2001 and July 2002.
Two placement agents provided services in connection with our 1998 bridge
financing and are entitled to receive a total of 59,850 warrants for these
services. Each of these warrants entitles the holder upon exercise to purchase
one share of class A common stock for $2.50. These warrants expire between July
2001 and January 2002.
Several NASD registered broker/dealers provided services in connection
with our April 1999 private placement of series A preferred stock and are
entitled to receive a total of 173,250 warrants for these services. Each of
these warrants entitles the holder upon exercise to purchase one share of class
A common stock for $5.00 and expires in April 2002.
The warrants issued in our 1998 bridge financing to investors and
placement agents are redeemable by ICC for $2.50 per warrant within 10 days of
mailing an acceleration notice at any time until January 2000 if the bid price
of the class A common stock exceeds $7.50 subject to adjustment for stock
splits, dividends or combinations for 10 consecutive trading days.
The number and exercise price of the warrants issued to financial advisors
in connection with our 1998 bridge financing and our April 1999 private
placement are subject to adjustment in the event of any stock dividend payable
in shares of class A common stock paid to holders of class A common stock or any
subdivision or combination of the outstanding class A common stock.
Summerwind Restructuring, Inc. received 500,000 warrants as consideration
for various consulting services under a consulting agreement with our
predecessor, Infosafe Systems, Inc. Each of these warrants entitles the holder
upon exercise to purchase one share of class A common stock for $2.50 and
expires in June 2003. The number and exercise price of the Summerwind warrants
are subject to adjustment in the event of any sale or distribution of debt or
other securities of ICC or of cash, property or other assets to holders of class
A common stock, any stock dividend payable in shares of class A common stock
paid to holders of class A common stock, any subdivision or combination of the
outstanding class A common stock, or any sale of any shares of class A common
stock, or of any rights, options, warrants, or securities convertible into or
exercisable for class A common stock, for consideration valued at less than the
then exercise price of the Summerwind warrants.
Delaware Law and Certificate of Incorporation and Bylaw Provisions
The following is a summary description of material provisions of the
Delaware General Corporation Law and our certificate of incorporation and
bylaws. For further information you should refer to our certificate of
incorporation and bylaws.
22
We must comply with the provisions of Section 203 of the Delaware General
Corporation Law. Section 203 prohibits a publicly-held Delaware corporation from
engaging in a business combination with an interested stockholder for three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
A business combination includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. An interested
stockholder is generally a person who, together with affiliates and associates,
owns, or within the past three years did own, 15% of the corporation's voting
stock.
There are provisions in our certificate of incorporation, our bylaws and
Delaware law that make it more difficult for a third party to obtain control of
ICC, even if doing so would be beneficial to our stockholders. This could
depress our stock price. However, these provisions enhance the likelihood of
continuity and stability in the composition of the policies formulated by the
board of directors. In addition, these provisions are intended to ensure that
the board of directors will have sufficient time to act in what it believes to
be in the best interests of ICC and its stockholders. These provisions also are
designed to reduce the vulnerability of ICC to an unsolicited proposal for a
takeover of ICC that does not contemplate the acquisition of all of its
outstanding shares or an unsolicited proposal for the restructuring or sale of
all or part of ICC. The provisions are also intended to discourage some tactics
that may be used in proxy fights.
Classified Board of Directors
We received stockholder authorization on June 26, 1998 to amend our
certificate of incorporation to divide the board of directors into three classes
of directors. The classes must be as nearly equal in number as possible and
serve staggered three-year terms. We intend to elect directors for each class at
our next annual meeting of stockholders. As a result, after out next annual
meeting, approximately one-third of the board of directors will be elected each
year. The classified board provision will help to assure the continuity and
stability of the board of directors and the business strategies and policies of
ICC as determined by the board of directors. The classified board provision
could have the effect of discouraging a third party from making a tender offer
for our shares or attempting to obtain control of ICC. In addition, the
classified board provision could delay stockholders who do not agree with the
policies of the board of directors from removing a majority of the board of
directors for two years.
Indemnification
We have included in our certificate of incorporation and bylaws provisions
to (1) eliminate the personal liability of our directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by the
Delaware General Corporation Law and (2) indemnify our directors and officers to
the fullest extent permitted by the Delaware General Corporation Law, including
circumstances in which indemnification is discretionary.
We believe that these provisions are necessary to attract and retain
qualified persons as directors and officers.
Transfer Agent and Registrar
The transfer agent and registrar for our class A common stock is American
Stock Transfer and Trust Company.
LEGAL MATTERS
23
The legality of the shares being offered will be passed upon by Kramer
Levin Naftalis & Frankel LLP, New York, New York.
EXPERTS
Richard A. Eisner & Company, LLP, independent auditors, have audited our
financial statements as of July 31, 1999, as stated in their report, included in
our annual report on Form 10-KSB for the year ended July 31, 1999 which is
incorporated in this prospectus by reference. Our financial statements are
incorporated by reference in reliance on Richard A. Eisner & Company, LLP's
report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
o Government Filings. We file annual, quarterly and special reports, proxy
statements and other information with the SEC. Our sec filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the sec's public
reference room in Washington, D.C. by calling the SEC at 1-800-SEC-0330.
We have filed with the SEC an amended registration statement on form S-3/A
to register the shares of common stock to be offered. This prospectus is part of
that registration statement and, as permitted by the SEC's rules, does not
contain all the information included in the amended registration statement. For
further information about us and our class A common stock, you should refer to
that registration statement and to the exhibits and schedules filed as part of
that registration statement, as well as the documents we have incorporated by
reference which are discussed below. You can review and copy the registration
statement, its exhibits and schedules, as well as the documents we have
incorporated by reference, at the public reference facilities maintained by the
SEC as described above. The registration statement, including its exhibits and
schedules, are also available on the SEC's web site, given above.
o Stock Market. Shares of our class A common stock are traded on The Nasdaq
SmallCap Market. Materials that are filed can be inspected at the offices
of the National Association of Securities Dealers, Inc., Reports Section,
1735 K Street, N.W., Washington, D.C. 20006.
o Information Incorporated by Reference. The SEC allows us to incorporate by
reference the information we file with it, which means that we can
disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by
reference the documents listed below and any further filings made with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until
this offering has been completed:
o Our annual report on form 10-KSB for the year ended July 31, 1999;
o Our current report on form 8-K dated December 1, 1999; and
o The description of our class A common stock contained in our Rule
424 prospectus filed with the SEC on June 18, 1997, including any
amendments or reports filed for the
24
purpose of updating the description. See also Description of
Securities on pages 18 to 23 of this prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Internet Commerce Corporation
805 Third Avenue
New York, New York 10022
(212) 271-7640
Attn: Victor Bjorge
We are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents. We have not authorized anyone to
provide you with, and you should not rely on, information other than that which
is in this prospectus, any prospectus supplement or which is incorporated in
this prospectus by reference.
25
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)..................................$ 605.91
Nasdaq SmallCap Market listing fee (actual)....................$ 7,500
Blue Sky fees and expenses.....................................$ 500
Printing and engraving fees and expenses.......................$ 1,000
Legal fees and expenses........................................$ 2,500
Accounting fees and expenses...................................$ 500
Miscellaneous .............................................$ 394.09
Total..........................................................$ 13,000
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware,
referred to as the DGCL, provides that a corporation may indemnify directors and
officers as well as other employees and individuals against expenses, including
attorneys' fees, judgments, fines, and amounts paid in settlement in connection
with specified actions, suits, proceedings whether civil, criminal,
administrative, or investigative, other than action by or in the right of the
corporation, known as a derivative action, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses, including attorneys' fees, incurred in connection with the
defense or settlement of the action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statue provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise. Section 145 thus makes provision for indemnification in terms
sufficiently broad to cover officers and directors, under certain circumstances,
for liabilities arising under the Securities Act of 1933, as it may be amended
from time to time.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article VII of our by-laws and Article Seventh of our Amended and Restated
Certificate of Incorporation, as further amended, both provide that we shall
indemnify, to the fullest extent permitted by Section 145 of the DGCL, each
person that Section 145 grants us power to indemnify. Article VIII of our
by-laws and Article Seventh of our Amended and Restated Certificate of
Incorporation, as further amended, both provide that no director shall be liable
to us or any of our stockholders for monetary damages for breach of fiduciary
duty as a director, except with respect to (1) a breach of the director's
duty of loyalty to the corporation or its stockholders, (2) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (3) liability under Section 174 of the DGCL or (4) a transaction from
which the director derived an improper personal benefit, and that it is the
intention of the foregoing provisions to eliminate the liability of our
directors to ICC or our stockholders to the fullest extent permitted by Section
102(b)(7) of the DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to our directors, officers
and controlling persons pursuant to the foregoing provisions, or otherwise, we
have been advised that in the opinion of the securities and exchange commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by ICC of expenses incurred or paid by a
director, officer or controlling person of ICC in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by ICC is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated in this registration statement
by reference to a prior filing of ICC under the Securities Act or the Exchange
Act as indicated in parenthesis:
Exhibit
Number Description
23(ii).1 Consent of Richard A. Eisner & Company, LLP
(b) Financial Statement Schedules:
Not Applicable.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
29th day of November, 1999.
Internet Commerce Corporation
by: /s/ Dr. Geoffrey S. Carroll
-------------------------------------
Dr. Geoffrey S. Carroll
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement or amendment thereto has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Dr. Geoffrey S. Carroll President and Chief November 29, 1999
- ----------------------------- Executive Officer
Dr. Geoffrey S. Carroll (Principal Executive Officer)
Director
/s/ Walter M. Psztur Chief Financial Officer November 29, 1999
- ----------------------------- (Principal Financial
Walter M. Psztur and Accounting Officer)
/s/ Richard J. Berman Director November 29, 1999
- -----------------------------
Richard J. Berman
/s/ G. Michael Cassidy Director November 29, 1999
- -----------------------------
G. Michael Cassidy
/s/ Michele Golden Director November 29, 1999
- -----------------------------
Michele Golden
Director November __, 1999
- -----------------------------
Charles C. Johnston
/s/ Arthur R. Medici Director November 29, 1999
- -----------------------------
Arthur R. Medici
/s/ James Ortenzio Director November 29, 1999
- -----------------------------
James Ortenzio
/s/ Peter Ruel Director November 29, 1999
- -----------------------------
Peter Ruel