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As filed with the Securities and Exchange Commission on January 21, 1999
REGISTRATION NO. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BILLING CONCEPTS CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2781950
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7411 JOHN SMITH DRIVE, SUITE 200 78229
SAN ANTONIO, TEXAS (Zip Code)
(Address of Principal Executive Offices)
BILLING CONCEPTS CORP.
1999 COMMSOFT ACQUISITION STOCK OPTION PLAN
(Full title of the Plan)
W. AUDIE LONG, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
BILLING CONCEPTS CORP.
7411 JOHN SMITH DRIVE, SUITE 200
SAN ANTONIO, TEXAS 78229
(Name and address of agent for service)
(210) 949-7000
(Telephone number, including area code, of agent for service)
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With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
ATTENTION: PHILLIP M. RENFRO, ESQ.
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER SHARE(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 173,153(2) $9.9688 $1,726,127.63 $479.86
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Series A Junior Participating
Preferred Stock Purchase
Rights(3)(4) 173,153 - - -
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Total 173,153 - $1,726,127.63 $479.86
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</TABLE>
(1) Pursuant to Rule 457(c) and (h), the maximum offering price per security
and maximum aggregate offering price of the Common Stock have been
calculated on the basis of the average of the high and low prices of the
Common Stock as reported by the National Market System of Nasdaq on January
19, 1999.
(2) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of Common Stock which become issuable by reason of any
stock dividend, stock split, recapitalization or other similar transactions
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of Common Stock.
(3) The Series A Junior Participating Preferred Stock Purchase Rights (the
"Purchase Rights") are initially carried and traded with the Company's
Common Stock. The value attributable to the Purchase Rights, if any, is
reflected in the value of the Company's Common Stock. No fee is required
pursuant to Rule 457(g) under the Securities Act of 1933, as amended.
(4) Purchase Rights related to the Common Stock pursuant to the Rights
Agreement dated July 10, 1996, between Registrant and U.S. Trust Company of
Texas, N.A., Trustee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in
this Registration Statement:
1. The Annual Report on Form 10-K of Billing Concepts Corp., a
Delaware corporation (the "Registrant"), for the year ended September 30,
1998;
2. The Company's Registration Statement on Form 10/A, as amended,
File No. 0-28536, filed with the Securities and Exchange Commission (the
"Commission") on July 11, 1996, containing a description of the terms, rights
and provisions applicable to the Company's outstanding Common Stock and
attached Series A Junior Participating Preferred Stock Purchase Rights.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the filing hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the
extent that a subsequently filed document or a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such document or such
statement in such document. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law,
directors and officers as well as other employees and individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation-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 Company, and with respect to any
criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard of care is applicable in the case
of derivative actions, except that indemnification extends only to expenses
(including attorneys' fees) incurred in connection with defense or settlement
of such an action and that the Delaware General Corporation Law requires
court approval before there can be any indemnification where the person
seeking indemnification has been found liable by the Company.
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Article VIII of the Amended and Restated Bylaws of the Company
requires the Company to indemnify any person to whom, and to the extent,
indemnification may be granted pursuant to Section 145 of the Delaware
General Corporation Law.
Article XI of the Company's Certificate of Incorporation provides
that each person who was or is made a party to, or is involved in any action,
suit or proceeding by reason of the fact that he is or was a director,
officer or employee of the Company will be indemnified by the Company against
all expenses and liabilities, including attorneys' fees, reasonably incurred
by or imposed upon him, except in such case where the director, officer or
employee is adjudged guilty of willful misfeasance in the performance of his
duties. Article XI also provides that the right of indemnification shall be
in addition to and not exclusive of all other rights to which such director,
officer or employee may be entitled.
The foregoing summaries are necessarily subject to the complete
text of the statute, Certificate of Incorporation of the Company and the
Bylaws of the Company referenced above and are qualified in their entirety by
reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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<S> <C>
3.1 Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3.4 of the Company's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1998).
3.2 Amended and Restated Bylaws of the Company (incorporated
herein by reference to Exhibit 3.3 of the Company's Annual
Report on Form 10-K for the year ended September 30, 1998).
4.1 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated herein by reference to Exhibit
3.2 of the Company's Registration Statement on Form 10/A
dated July 11, 1996 (File No. 0-28536)).
4.2 Rights Agreement dated July 10, 1996, between the Company
and U.S. Trust Company of Texas, N.A., Trustee (incorporated
herein by reference to Exhibit 4.2 of the Company's
Registration Statement on Form 10/A dated July 11, 1996
(File No. 0-28536)).
4.3 Billing Concepts Corp. 1999 CommSoft Acquisition Stock
Option Plan (incorporated herein by reference to Exhibit
10.1 of the Company's Current Report on Form 8-K dated
December 23, 1998).
4.4 Form of Stock Option Agreement granted pursuant to 1999
CommSoft Acquisition Stock Option Plan (incorporated herein
by reference to Exhibit 10.2 of the Company's Current Report
on Form 8-K dated December 23, 1998).
*5.1 Opinion of Billing Concepts Corp.
*23.1 Consent of Billing Concepts Corp. (included in Exhibit 5.1).
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<PAGE>
*23.2 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board of
Directors of the Registrant (contained on signature page).
</TABLE>
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* Filed herewith.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
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the Registrant has 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. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant 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, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Antonio and State of Texas the
20th day of January 1999.
BILLING CONCEPTS CORP.
By: /s/ Kelly E. Simmons
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Kelly E. Simmons
Executive Vice President and
Chief Financial Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Alan W. Saltzman and Kelly
E. Simmons, or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same and all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission,
granting said attorney-in-fact and agent, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Parris H. Holmes, Jr. Chairman of the Board and January 21, 1999
- -------------------------- Chief Executive Officer
Parris H. Holmes, Jr. and a Director
(Principal Executive Officer)
/s/ Alan W. Saltzman President and Chief January 20, 1999
- -------------------------- Operating Officer
Alan W. Saltzman and a Director
/s/ Kelly E. Simmons Executive Vice President January 20, 1999
- -------------------------- and Chief Financial Officer
Kelly E. Simmons (Principal Financial and
Accounting Officer)
/s/ Larry A. Davis Senior Vice President January 20, 1999
- -------------------------- and a Director
Larry A. Davis
/s/ Lee Cooke Director January 20, 1999
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Lee Cooke
/s/ James E. Sowell Director January 20, 1999
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James E. Sowell
/s/ Thomas G. Loeffler Director January 20, 1999
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Thomas G. Loeffler
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number Description of Exhibits
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<S> <C>
3.1 Certificate of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.4 of the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1998).
3.2 Amended and Restated Bylaws of the Company (incorporated herein by
reference to Exhibit 3.3 of the Company's Annual Report on Form 10-K
for the year ended September 30, 1998).
4.1 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated herein by reference to Exhibit 3.2 of
the Company's Registration Statement on Form 10/A dated July 11,
1996 (File No. 0-28536)).
4.2 Rights Agreement dated July 10, 1996, between the Company and U.S.
Trust Company of Texas, N.A., Trustee (incorporated herein by
reference to Exhibit 4.2 of the Company's Registration Statement on
Form 10/A dated July 11, 1996 (File No. 0-28536)).
4.3 Billing Concepts Corp. 1999 CommSoft Acquisition Stock Option Plan
(incorporated herein by reference to Exhibit 10.1 of the Company's
Current Report on Form 8-K dated December 23, 1998).
4.4 Form of Stock Option Agreement granted pursuant to 1999 CommSoft
Acquisition Stock Option Plan (incorporated herein by reference to
Exhibit 10.2 of the Company's Current Report on Form 8-K dated
December 23, 1998).
*5.1 Opinion of Billing Concepts Corp.
*23.1 Consent of Billing Concepts Corp. (included in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board of Directors of
the Registrant (contained on signature page).
</TABLE>
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* Filed herewith.
<PAGE>
EXHIBIT 5.1
January 21, 1999
Billing Concepts Corp.
7411 John Smith Drive, Suite 200
San Antonio, Texas 78229
Re: Billing Concepts Corp.
1999 CommSoft Acquisition Stock Option Plan
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Ladies and Gentlemen:
As General Counsel to Billing Concepts Corp. (the "Company"), I am familiar
with its registration statement on Form S-8 (the "Registration Statement") to
be filed under the Securities Act of 1933, as amended, for the purpose of
registering 173,153 shares of common stock, par value $.01 per share, of the
Company (the "Common Stock") and the Series A Junior Participating Preferred
Stock Purchase Rights carried with the Common Stock (the "Rights") issuable
under the Billing Concepts Corp. 1999 CommSoft Acquisition Stock Option Plan,
as amended (the "Plan").
In connection therewith, I have examined such documents, records and matters
of law as I have deemed necessary for purposes of this opinion. I have
assumed the authenticity of all documents I examined and have assumed the
genuineness of all signatures thereon.
Based on the foregoing and subject to the comments noted below, I am of the
opinion that, assuming that the Company maintains an adequate number of
authorized but unissued shares and or treasury shares of Common Stock
available for issuance under the Plan, the Common Stock and the Rights, when
issued in accordance with the terms of the Plan, will be duly authorized,
validly issued, fully paid and nonassessable.
I hereby bring to your attention that my legal opinions are an expression of
professional judgment and not a guarantee of a result. This opinion is
rendered as of the date hereof, and I undertake no, and hereby disclaim any,
obligation to advise you of any changes in or new developments that might
affect any matters or opinions set forth herein.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ W. Audie Long
W. Audie Long, Esq.
Senior Vice President, General
Counsel and Corporate Secretary
<PAGE>
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated November 12,
1998, included in the Billing Concepts Corp. Form 10-K for the year ended
September 30, 1998, and to all references to our firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
San Antonio, Texas
January 15, 1999
