Exhibit II
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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. 2000W- 1 400,000 Shares
Dated: January 12, 2000
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
OF
INTERNET COMMERCE CORPORATION
This is to Certify That, FOR VALUE RECEIVED, Cable and Wireless PLC
("Holder") is entitled to purchase, subject to the provisions of this Warrant,
from Internet Commerce Corporation, a Delaware corporation ("Company"), four
hundred thousand (400,000) 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 $22.21 per share (subject to adjustment pursuant to
Paragraph (b)(i) hereof) at any time or from time to time during the period
beginning on the date hereof (the "Commencement Date"), until the date which is
sixty (60) months after such date (the "Expiration Date"). 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
Class A Common stock, as the same may from time to time be adjusted pursuant to
the provisions hereof, is hereinafter sometimes referred to as the "Exercise
Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised in whole 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 by law to close, then on the next succeeding day which shall not be
such a day. 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. As
soon as practicable after each such exercise hereof, but not later than five (5)
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 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 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
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 or its 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) HOLDER REPRESENTATIONS; RESTRICTIVE LEGEND. Holder hereby acknowledges
and agrees that: (i) Holder is an "accredited" investor within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"); (ii) upon the
exercise of this Warrant the Holder will acquire the Warrant Shares for its
account, for investment, and not in connection with the offer, sale or
distribution of the Warrant Shares, or any portion thereof or interest therein,
to others; (iii) Holder will not sell, transfer or otherwise dispose of any of
the Warrant Shares, or any interest therein, in violation of the registration
requirements of the Securities Act and will not engage in conduct which may
violate the registration requirements of any federal or state securities laws;
and (iv) Holder consents to the placing of a legend in substantially the
following form on the certificates representing the Warrant Shares, when issued,
to reflect the foregoing: 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 or its
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 or its 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
(ii) The Company may deem and treat the person or entity in whose or
which entity's 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 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.
(j) NOTICE OF CERTAIN EVENTS. In case at any time:
(i) the Company shall pay any dividend or make any other distribution,
payable in cash, property or securities (other than Common Stock) of the
Company, to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro rata to the holders
of the Common Stock any additional shares of stock of any class or other
rights;
(iii) there shall be any reclassification, capital reorganization or
other change of outstanding shares of Common Stock of the Company, or
consolidation or merger of the Company with, or sale of all or
substantially all its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the holder of this Warrant at
the address of such holder as shown on the books of the Company, of the date on
which (x) the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights, or (y) such
reclassification, reorganization, change, consolidation, merger, sale,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also specify the date as of which the holders of Common Stock
of record shall participate in said dividend, distribution or subscription
rights, or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, reorganization, change,
consolidation, merger, sale, dissolution, liquidation, or winding up, as the
case may be. Such written notice shall be given not less than ten (10) days
prior to the record date or the date on which the transfer books of the Company
are closed in respect thereto in the case of an action specified in clause (x)
and at least ten (10) days prior to the date the action in question in the case
of an action specified in clause (y) is expected to occur.
INTERNET COMMERCE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xx. Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Attest:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Secretary
PURCHASE FORM
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The undersigned hereby irrevocably elects to exercise the attached Warrant
to the extent of purchasing ____ shares of Class A Common Stock and hereby makes
payment of _________ in payment of the full exercise price therefor.
INSTRUCTIONS FOR REGISTRATION OF STOCK
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Name _______________________________________________________
(Please typewrite or print in block letters)
Address_____________________________________________________
Social Security No./Taxpayer ID No.
____________________________________________________________
Signature___________________________________________________
Dated_______________________________________________________
ASSIGNMENT FORM
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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_______________________________
