Exhibit 4.19
Exhibit I
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. 2002-1 60,000 Shares
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
OF
INTERNET COMMERCE CORPORATION
This is to Certify That, FOR VALUE RECEIVED, ING Capital, LLC,
with its principal executive offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000 (the "Holder"), is entitled to purchase, subject to the provisions of
this Warrant (this "Warrant"), from Internet Commerce Corporation, a Delaware
corporation (the "Company"), at any time or from time to time during the period
beginning on July 11, 2002 (the "Commencement Date"), until a corresponding date
in the year 2007 (the "Expiration Date"), 60,000 fully paid, validly issued and
nonassessable shares of Class A Common Stock, par value $0.01 per share, of the
Company (the "Common Stock") at a price of $3.58 per share (subject to
adjustment pursuant to Paragraph (b)(i) hereof) (the "Exercise Price"). The
shares of Common Stock deliverable upon such exercise are hereinafter sometimes
referred to as "Warrant Shares."
(a) EXERCISE OF WARRANT. This Warrant may be exercised in whole in
accordance with the provisions of the proceeding paragraph at any time or in
part from time to time on or after the Commencement Date and 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
or required by law to close, then on the next succeeding day which shall not be
such a day.
(i) This Warrant may be exercised by presentation and
surrender hereof to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form, 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 Purchase Form 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 is 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 seven
(7) days from the date of such exercise, the Company shall issue and deliver to
the Holder a certificate or certificate 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
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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 or other entity 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 or other entity 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 the 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 or sale 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 or other
entity purchasing such assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Company, the
obligation to deliver
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to the Holder of this Warrant such shares of stock, securities or property 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) No adjustment of the Exercise Price will be made if the
effect thereof would be to increase the Exercise Price above the Exercise Price
in effect immediately prior to such adjustment, other than in connection with a
combination of outstanding shares. 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 even though an adjustment or
change in the Exercise Price or the number of shares of Common Stock purchasable
upon exercise of this Warrant has occurred, and this Warrant shall thereafter be
exercisable, at such adjusted Exercise Price, for such adjusted number of shares
of Common Stock.
(v) After each adjustment of the Purchase Price pursuant to
this Paragraph (b), the Company will promptly prepare a certificate signed by
the Chairman, the President or the Chief Financial Officer 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 such Xxxxxx's 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) REDEMPTION OF WARRANT. (i) If at any time beginning 180 calendar
days after the Commencement Date, and only if all the Warrant Shares may be sold
in whole (whether pursuant to an effective registration statement or otherwise),
the closing bid price per share of the Common Stock shall exceed 200% of the
Exercise Price for a period of thirty (30) consecutive Trading Days (as defined
below) ending no more than five (5) days prior to the date fixed for redemption
pursuant to paragraph (d)(ii) hereof, the Company, at its option, may redeem the
Warrant at a price of $.10 per Warrant (the "Redemption Price").
(ii) The Company may exercise its redemption right by giving a
Redemption Notice (in the form attached hereto) to the Holder no more than
thirty (30) and no less than ten (10) calendar days before the date fixed
specified in the Redemption Notice for redemption. On and after the date fixed
for redemption, the Holder shall have no rights with respect to the Warrant
represented hereby except to receive the Redemption Price per Warrant upon
surrender of this Warrant.
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(iii) As used in this Section (d), the term "Trading Days"
shall mean any day on which trading takes place on the principal market on which
the Common Stock trades, or, if the Common Stock is not listed for trading on
any recognized market or exchange, a day on which a sale transaction occurs with
respect to such Common Stock.
(e) 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 or for 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.
(f) 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.
(g) HOLDER NOT DEEMED STOCKHOLDER. 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
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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.
(h) AGREEMENT OF WARRANT HOLDERS. The Holder of this Warrant, by such
Xxxxxx's acceptance thereof, consents and agrees with the Company that:
(i) 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; and
(ii) 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.
(i) 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.
(j) 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.
(k) TRANSFER TAXES. The issuance of certificates for shares of Common
Stock shall be made without charge for any tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that of
the Holder, the Company shall not be required to issue or deliver any stock
certificate or certificates unless and until the Holder has paid to the Company
the amount of any tax which may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of the Company that such
tax has been paid or is not due.
(l) In case at any time the Company shall propose to:
(i) pay any dividend or make any distribution on shares of
Common Stock in shares of Common Stock or make any other distribution (other
than regularly scheduled cash dividends) to all holders of Common Stock; or
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(ii) issue any rights, warrants or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants or other securities; or
(iii) effect any reclassification or change of outstanding
shares of Common Stock, or any consolidation or merger with or into any
corporation or other entity in which the Company is not the surviving
corporation or any sale, lease or conveyance of all or substantially all of its
assets; or
(iv) effect any liquidation, dissolution or winding-up of the
Company (whether voluntary or involuntary);
then, and in any one or more of such cases, the Company shall give written
notice thereof, by certified mail, postage prepaid, to the Holder at the
Holder's address as it shall appear on the books of the Company, mailed at least
fifteen (15) days prior to (i) the date as of which the holders of record of
shares of Common Stock to be entitled to receive any such dividend,
distribution, rights, warrants or other securities are to be determined, or (ii)
the date on which any such reclassification, change of outstanding shares of
Common Stock, consolidation, merger, sale, lease, conveyance, liquidation,
dissolution or winding-up is expected to become effective and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for shares of stock or other securities or
property, including cash, if any, deliverable upon such reclassification, change
of outstanding shares, consolidation, merger, sale, lease, conveyance,
liquidation, dissolution or winding-up.
(m) This Warrant may not be amended by the Company without the prior
written consent of the Holder; any amendment to which the Holder so consents
shall bind its successors and permitted transferees and assigns.
INTERNET COMMERCE CORPORATION
By:
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Name: X. Xxxxxxx Xxxxxxx
Title: President and Chief Executive
Officer
[SEAL]
Dated: July 11, 2002
Attest:
___________________________________
Xxxxxx X. Xxxxxx, Secretary
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PURCHASE FORM
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:
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(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.
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(Print Name, Address and Social Security or Tax Identification Number)
Dated: _________________ Name:___________________
(Print)
Address:________________________________________________________
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(Signature)
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(Signature Guarantee)
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(Signature Guarantee)
ASSIGNMENT FORM
FOR VALUE RECEIVED,_________________________ hereby sells, assigns and
transfers unto
Name
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(Please typewrite or print in block letters)
Address
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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___________________________________
REDEMPTION NOTICE
To: Name:
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Address:
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The Company hereby irrevocably elects to exercise its
redemption right under the Warrant dated as of July 11, 2002 to purchase shares
of Class A Common Stock of the Company and hereby redeems, for $ per Warrant
(the "Redemption Price"), at 5:00 p.m., New York City time, on _______________,
200__ (the "Redemption Date"), all of such Warrants. 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 City Time on the Redemption Date. Thereafter, the holder of the
Warrants will only be entitled to receive the Redemption Price.
Dated: , 200_
INTERNET COMMERCE CORPORATION
By:
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Name:
Title:
