Exhibit 4.24
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") NOR UNDER ANY STATE SECURITIES LAW AND NEITHER THIS WARRANT NOR ANY
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF MAY BE PLEDGED, SOLD,
ASSIGNED OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAW HAS BECOME EFFECTIVE WITH RESPECT
THERETO, OR (2) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL TO THE EFFECT
THAT REGISTRATION UNDER THE ACT OR APPLICABLE STATE SECURITIES LAW IS NOT
REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.
No. CON - 1 18,000 Shares
------ ------
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
OF
INTERNET COMMERCE CORPORATION
This is to Certify That, FOR VALUE RECEIVED, Xxxxxxx Xxxxx is
entitled to purchase, subject to the provisions of this Warrant, from Internet
Commerce Corporation, a Delaware corporation ("Company"), eighteen thousand
(18,000) fully paid, validly issued and nonassessable shares of Class A Common
Stock, par value $0.01 per share, of the Company ("Common Stock") at a price of
$9.94 per share (subject to adjustment pursuant to Paragraph (b)(i) hereof).
Xxxxxxx Xxxxx may exercise the warrant hereby granted in installments, on a
cumulative basis, at a rate of 3,000 shares at the end of each month, commencing
April 1, 1999 (the "Commencement Date"), and continuing each month thereafter
through month-end September 1999. The Warrants expire March 31, 2004 (the
"Expiration Date"). Notwithstanding the foregoing sentence, provided that more
than one year has elapsed since the issuance of this Warrant, if the bid price
of the Common Stock shall exceed $29.82 (subject to appropriate decreases or
increases, as the case may be, in the event of any split (by way of stock
dividend or otherwise) or combination of the Common Stock) per share for ten
(10) consecutive trading days, the Company may accelerate the Expiration Date to
a date not less than ten (10) business days after the mailing of an Acceleration
Notice (in the form annexed hereto) to the Holder. The shares of Common Stock
deliverable upon such exercise are hereinafter sometimes referred to as "Warrant
Shares" and the exercise price of this Warrant to purchase one share of Common
Stock is hereinafter sometimes referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised accordance with
the provisions of the proceeding paragraph until 5:00 p.m., New York City Time,
on the Expiration Date; provided, however, that if such day is a day on which
banking institutions in the State of New York are authorized by law to close,
then on the next succeeding day which shall not be such a day.
(i) All or part of this Warrant may be exercised by presentation and
surrender of this Warrant to the Company at its principal office, or at the
office of its stock transfer agent, if any, with the Form of Election to
Exercise annexed hereto duly executed and accompanied by payment of the Exercise
Price in the form of a wire transfer or Federal funds check for the number of
Warrant Shares specified in such form; or
(ii) All or any part of this Warrant may be exercised on a
"cashless" basis, by stating in the Form of Election to Exercise such intention
and the maximum number (the "Maximum Number") of shares of Common Stock the
Holder desires to purchase in consideration of cancellation of Warrants in
payment for such exercise. The number of shares of Common Stock the Holder shall
receive (the "Cashless Exercise Number") upon such exercise pursuant to this
Paragraph (a)(ii) shall equal the difference between the Maximum Number and the
quotient that is obtained when the product of the Maximum Number and the then
current Exercise Price is divided by the then Current Market Price per share (as
that term is defined in Paragraph (a)(iii) hereof).
(iii) For the purpose of any computation under Paragraph (a)(ii)
hereof, the Current Market Price per share of Common Stock as of the exercise
date shall be deemed to be the average of the daily "Market Price" (as that term
is defined in this Paragraph (a)(iii)) during the ten (10) consecutive trading
days commencing fifteen (15) trading days before such date of exercise, except
that, if on any such date the Common Stock is not listed or admitted for trading
on any national securities exchange or quoted on the over-the-counter market,
the Current Market Price shall be the Market Price on such date. As used herein,
the term "Market Price" shall mean, on any day specified herein, the amount per
share of Common Stock, equal to either (a) the last reported sale price per
share of such Common Stock, regular way, on such day or, in case no such sale
takes place on such day, the average of the closing bid and asked prices
thereof, regular way, on such day, in either case as officially reported on the
principal national securities exchange on which such Common Stock is then listed
or admitted for trading, (b) if such Common Stock is not then listed or admitted
for trading on any national securities exchange but are designated as a National
Market System security by The Nasdaq Stock Market, the last reported trading
price per share of Common Stock on such day, (c) if there shall have been no
trading on such day or if the Common Stock is not designated as a National
Market System security by The Nasdaq Stock Market but has been designated as a
SmallCap security by The Nasdaq Stock Market or is quoted on The Nasdaq Stock
Market's (or any successor market's) over-the-counter market or on its
electronic bulletin board, the average of the closing bid and asked prices per
share of Common Stock on such day as shown by The Nasdaq Stock Market's (or any
successor market's) automated quotation system, over-the-counter market or
electronic bulletin board, as the case may be, or (d) if such Common Stock is
not then listed or admitted for trading on any national exchange or quoted on
The Nasdaq Stock Market, over-the-counter market, or electronic bulletin board,
the fair value thereof (as of a day which is within twenty (20) days of the day
as of which the determination is to be made) determined in good faith by the
Board of Directors of the Company.
As soon as practicable after each such exercise hereof, but not later than ten
(10) days from the date of such exercise, the Company shall issue and deliver to
the Holder a certificate or certificates for the Warrant Shares issuable upon
such exercise, registered in the name of the
Holder or its designee. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable hereunder. Upon receipt by the
Company of this Warrant at its office, or by the stock transfer agent of the
Company at its office, if any, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be physically delivered to the Holder.
(b) ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
(i) In the event the Company shall, at any time or from time to time
after the date hereof, issue any shares of Common Stock as a stock dividend to
the holders of Common Stock, or subdivide or combine the outstanding shares of
Common Stock into a greater or lesser number of shares (any such issuance,
subdivision or combination being herein called a "Change of Shares"), then, and
thereafter upon each further Change of Shares, the Exercise Price in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent) determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such Change of Shares and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after giving effect to such
Change of Shares. Such adjustment shall be made successively whenever such an
issuance is made.
(ii) Upon each adjustment of the Exercise Price pursuant to
Paragraph (b)(i) hereof, the total number of shares of Common Stock purchasable
upon the exercise of this Warrant shall be such number of shares (calculated to
the nearest tenth) purchasable at the Exercise Price in effect immediately prior
to such adjustment multiplied by a fraction, the numerator of which shall be the
Exercise Price in effect immediately prior to such adjustment and the
denominator of which shall be the Exercise Price in effect immediately after
giving effect to such adjustment.
(iii) In case of any reclassification, capital reorganization or
other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), or in
case of any sale or conveyance to another corporation of the property of the
Company as, or substantially as, an entirety (other than a sale/leaseback,
mortgage or other financing transaction), the Company shall cause effective
provision to be made so that Holder of this Warrant shall have the right
thereafter, by exercising this Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
that would have been purchased upon exercise in full of this Warrant immediately
prior to such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Paragraph (b). The Company
shall not effect any such consolidation, merger, sale or conveyance unless prior
to or simultaneously with the consummation thereof the successor (if other than
the Company) resulting from such consolidation or merger or the corporation
purchasing assets or other appropriate corporation or entity shall assume, by
written instrument executed and delivered to the Company, the obligation to
deliver to the Holder of this Warrant such shares of stock, securities or
property (including cash) as, in accordance with the foregoing provisions, the
Holder may be entitled to purchase and the other obligations of the Company
under this Warrant. The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and other changes of outstanding
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
(iv) Irrespective of any adjustments or changes in the Exercise
Price or the number of shares of Common Stock purchasable upon exercise of this
Warrant, this Warrant certificate shall continue to express the Exercise Price
per share and the number of shares of Common Stock purchasable hereunder as the
Exercise Price per share and the number of shares of Common stock purchasable
therefor as were expressed in this Warrant certificate when the same was
originally issued.
(v) After each adjustment of the Purchase Price pursuant to this
Paragraph (b), the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (1) the
Exercise Price as so adjusted, (2) the number of shares of Common Stock
purchasable upon exercise of this Warrant after such adjustment, and (3) a brief
statement of the facts accounting for such adjustment. The Company will promptly
cause a copy of such certificate to be sent by ordinary first class mail to the
Holder of this Warrant at his last address as it shall appear on the registry
books of the Company. No failure to mail such notice nor any defect therein or
in the mailing thereof shall affect the validity of any such adjustment.
(c) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
this Warrant.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other warrants of like tenor and of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office or at the office of its stock transfer
agent, if any, with the assignment form annexed hereto duly executed and funds
sufficient to pay any transfer tax the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. As a condition of
such assignment, however, such assignee shall deliver to the Company an opinion
of counsel to the effect that registration of such transfer under the Securities
Act of 1933, as amended, and applicable state securities laws is not required.
This Warrant may be divided or combined with other warrants which carry the same
rights upon
presentation hereof at the principal office of the Company or at the office of
its stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any Warrants into
which this Warrant may be divided or exchanged. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed or mutilated shall be at
any time enforceable by anyone.
(e) RESTRICTIVE LEGEND. Each Warrant Share, when issued, shall include
a legend in substantially the following form: THESE SHARES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") NOR UNDER ANY STATE
SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR OTHERWISE TRANSFERRED
UNTIL (1) A REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAW HAS BECOME EFFECTIVE WITH RESPECT THERETO, OR (2) RECEIPT BY THE
COMPANY OF AN OPINION OF COUNSEL TO THE EFFECT THAT REGISTRATION UNDER THE ACT
OR APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED IN CONNECTION WITH THE
PROPOSED TRANSFER.
(f) HOLDER NOT DEEMED STOCKHOLDERS. The Holder of this Warrant shall
not, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue or reclassification of stock, change of par value or
change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until the Holder shall have exercised this Warrant in
accordance with the provisions hereof.
(g) AGREEMENT OF WARRANT HOLDERS. The Holder of this Warrant, by his
acceptance thereof, consents and agrees with the Company that:
(a) This Warrant is transferable only on the registry books of the
Company by the Holder thereof in person or by his attorney duly authorized in
writing and only if this Warrant certificate is surrendered at the office of the
Company, duly endorsed or accompanied by a proper instrument of transfer
satisfactory to the Company in its sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company may deem and treat the person in whose name this
Warrant certificate is registered as the holder and as the absolute, true and
lawful owner of this Warrant for all purposes, and the Company shall not be
affected by any notice or knowledge to the contrary.
(h) GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
principles of conflict of laws.
(i) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Company and its respective successors and assigns, and the
registered Holder from time to time of this Warrant certificate. Nothing in this
Warrant is intended or shall be construed to confer upon any other person any
right, remedy or claim, in equity or at law, or to impose upon any other person
any duty, liability or obligation.
INTERNET COMMERCE CORPORATION
By:
--------------------------------------
Xx. Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
[SEAL]
Dated: As of April 1, 1999
Attest:
___________________________________
Xxxxxx X. Xxxxxx, Secretary
FORM OF ELECTION TO EXERCISE
The undersigned hereby exercises his or its rights to purchase
_______ shares of Common Stock covered by the within Warrant, and tenders
payment herewith in the aggregate amount of $________, including (i) $_______ by
certified or bank cashier's check, and/or (ii) cancellation of Warrants to
purchase shares of Common Stock based upon a Maximum Number (as therein defined)
of ______, in accordance with the terms thereof, and requests that certificates
for such securities be issued in the name of, and delivered to:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Print Name, Address and Social Security or Tax Identification Number)
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock covered by the within Warrant and the remaining portion of the
within Warrant be not cancelled in payment of the Exercise Price, that a new
Warrant for the balance of the shares of Common Stock covered by the within
Warrant be registered in the name of, and delivered to, the undersigned at the
address stated below.
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Print Name, Address and Social Security or Tax Identification Number)
Dated: _________________ Name:___________________
(Print)
Address:________________________________________________________
-----------------------------
(Signature)
-----------------------------
(Signature Guarantee)
-----------------------------
(Signature Guarantee)
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________ hereby sells, assigns and
transfers unto
Name _____________________________________________
(Please typewrite or print in block letters)
Address ____________________________________
the right to purchase shares Class A Common Stock represented by this Warrant to
the extent of _______ shares as to which such right is exercisable and does
hereby irrevocably constitute and appoint Attorney, to transfer the same on the
books of the Company with full power of substitution in the premises.
Date:____________________
Signatures_____________________________
ACCELERATION NOTICE
To: [Name]
------------------------
[Address]
------------------------
The Company hereby irrevocably elects to exercise its right under
the Warrant dated as of _________ to purchase shares of Class A Common Stock of
the Company to accelerate the Expiration Date of the Warrant to [Date]. Please
be aware that presentation and surrender of the Warrant in exercise of the
Holder's right to purchase Class A Common Stock will only be accepted, in
accordance with the terms of Paragraph (a) ("EXERCISE OF WARRANT") of the
Warrant, until 5:00 p.m. New York Time on [Date].
Dated:
INTERNET COMMERCE CORPORATION
By:
------------------------------------
Xx. Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
