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As filed with the Securities and Exchange Commission on January 28, 2000
REGISTRATION NO. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
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
SAN ANTONIO, TEXAS 78229
(210) 949-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________
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
(210) 949-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR
SERVICE, SHOULD BE SENT TO:
PHILLIP M. RENFRO, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT STREET, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 270-7172
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
____________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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 Rule415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box:
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 statement 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 statement 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:
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT OF SHARES PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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COMMON STOCK, $.01 PAR VALUE PER
SHARE........................... 1,100,000(4) $6.375 $7,012,500 $1,851.30
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PURCHASE RIGHTS(2)(3) 1,100,000(4) - - -
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TOTAL 1,100,000(4) - $7,012,500 $1,851.30
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(1) Pursuant to Rule 457(c), the proposed maximum offering price per share and
proposed maximum aggregate offering price have been calculated on the
basis of the average of the bid and ask prices of the Common Stock as
reported on the Nasdaq National Market on January 25, 2000.
(2) No fee pursuant to Rule 457(g).
(3) Purchase Rights related to the Common Stock pursuant to Rights Agreement
dated as of July 10, 1996, between Registrant and U.S. Trust Company of
Texas, N.A., Rights Agent.
(4) 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.
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 of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
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P R O S P E C T U S
1,100,000 SHARES
BILLING CONCEPTS CORP.
COMMON STOCK
This Prospectus relates to the public offering, which is not being
underwritten, of up to 1,100,000 shares (the "Shares") of our common stock,
par value $.01 per share ("Common Stock"), which is held by certain of our
current stockholders.
The prices at which such stockholders may sell the Shares will be
determined by the prevailing market price for the Shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
Shares.
Our Common Stock is traded on the National Market System of Nasdaq (the
"Nasdaq National Market") under the symbol "BILL." On January 26, 2000,
the last reported sale price for our Common Stock on the Nasdaq National
Market was $6.4375 per share.
The selling stockholders acquired their shares of Common Stock on
November 8, 1999 in connection with our acquisition of FIData, Inc.
This Prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
INVESTING IN THE COMMON STOCK INVOLVES RISKS. YOU SHOULD READ THE "RISK
FACTORS" BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is January 28, 2000.
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AVAILABLE INFORMATION
We have filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act
of 1933, as amended (the "Securities Act"), related to the Shares. This
Prospectus is part of that Registration Statement and does not contain all of
the information set forth in the Registration Statement and its exhibits. You
may obtain further information with respect to the Company and the Shares by
reviewing the Registration Statement and the attached exhibits, which you may
read and copy at the following locations of the Commission:
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Public Reference Room New York Regional Office Chicago Regional Office
Judiciary Plaza Seven World Trade Center Citicorp Center
450 Fifth Street, N.W., Rm. 1024 13th Floor 500 West Madison Street, Suite 1400
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661-2511
</TABLE>
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Accordingly, we
file reports, proxy statements and other information with the Commission.
Such reports, proxy statements and other information can be inspected and
copied at the locations described above. Copies of such materials can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a Web site that contains the Registration Statement, reports, proxy
statements and other information regarding the Company at http://www.sec.gov.
We furnish our stockholders with annual reports containing audited
financial statements with a report thereon by our independent public
accountants, Arthur Andersen LLP.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" certain
information into this Prospectus. This means that we can disclose important
information to you by referring you to another document we have filed
separately with the Commission. The information incorporated by reference is
considered to be a part of this Prospectus, except for any information that
is superseded by other information that is set forth directly in this
document.
The following documents that we have previously filed with the
Commission pursuant to the Exchange Act are hereby incorporated by reference
into the Prospectus:
(1) Our Annual Report on Form10-K for the fiscal year ended September 30,
1999.
(2) Our Registration Statement on Form 10/A dated July 11, 1996
(Registration No. 0-28536).
(3) The description of our Common Stock and our Preferred Stock
Purchase Rights, each of which is contained under the caption "Description
of Capital Stock" in the Registration Statement on Form 10/A dated July 11,
1996 (Registration No. 0-28536).
Billing Concepts also incorporates by reference additional documents
that may be filed with the Commission between the date of this Prospectus and
the date of completion of the offering of the shares of common stock by the
selling stockholders. These include periodic reports, such as Annual Reports
on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K,
as well as proxy statements.
Documents incorporated by reference are available from us without
charge, excluding all exhibits, except that if we have specifically
incorporated by reference an exhibit in this Prospectus, the exhibit also
will be available without charge. Stockholders may obtain documents
incorporated by reference in this Prospectus by requesting them in writing or
by telephone from Billing Concepts at the following address:
Billing Concepts Corp.
7411 John Smith Drive, Suite 200
San Antonio, Texas 78229
Attention: Investor Relations
Telephone: (210) 949-7000
You should rely only on the information contained or incorporated by reference
in this Prospectus. We have not authorized anyone to provide you with
information that is different from what is contained in this Prospectus. This
Prospectus is dated January 27, 2000. You should not assume that the
information contained in this Prospectus is
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accurate as of any date other than that date. In this Prospectus, the
"Company," "Billing Concepts," "Billing," "we," "us" and "our" refer to
Billing Concepts Corp.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference contain
certain forward-looking statements including, without limitation, statements
concerning our expectations of future sales, gross profits, research and
development expenses, selling, general and administrative expenses, product
introductions and cash requirements. Forward-looking statements often,
although not always, include words or phrases such as "will likely result,"
"expect," "will continue," "anticipate," "estimate," "intend," "plan,"
"project," "outlook" or similar expressions. Actual results may vary
materially from those expressed in such forward-looking statements. Factors
which could cause actual results to differ from expectations include those
set forth under "Risk Factors." We cannot be certain that our results of
operations will not be adversely affected by one or more of these factors.
RISK FACTORS
You should carefully examine this entire Prospectus and should give
particular attention to the risk factors set forth below in conjunction with
the other information contained or incorporated by reference in this
Prospectus in evaluating an investment in the Shares.
LIMITED OPERATING HISTORY; LIMITED RELEVANCE OF HISTORICAL FINANCIAL
INFORMATION. We were organized in 1996 for the purpose of effecting the
distribution to the stockholders of U.S. Long Distance Corp. ("USLD") all of
the then outstanding shares of common stock of the Company. We have a
limited operating history as an independent public company, but we operate
the billing clearinghouse and information management services business
previously conducted by USLD. We entered the software market in 1997 and the
Internet services market in 1999, which makes an evaluation of our current
business and prospects difficult.
In addition, because of our limited operating history, we have a limited
insight into trends that may emerge in our markets and affect our businesses.
Our ability to succeed is subject to the risks and difficulties associated
with establishing a new business in the new and rapidly evolving markets for
our services. In addition, some of the financial information incorporated by
reference into this Prospectus may not necessarily reflect the results of
operations, financial position and cash flows of the Company in the future.
FUNDAMENTAL CHANGES IN THE TELECOMMUNICATIONS MARKET COULD REDUCE DEMAND
FOR OUR SYSTEMS. Future developments in the telecommunications industry,
such as continued industry consolidation, the formation of alliances among
network operators and service providers and changes in the regulatory
environment, could materially affect our existing or potential customers.
This could reduce the demand for our products and services. As a result, we
may be unable to effectively market and sell our information systems to
potential customers in the telecommunications industry.
THE MARKET FOR OUR PRODUCTS AND SERVICES IS UNPREDICTABLE, AND IF THIS
MARKET HAS A DOWNTURN OR DOES NOT GROW AS WE ANTICIPATE, OUR BUSINESS WILL
SUFFER. In fiscal 1999, we derived approximately 95% of our revenues from
sales of products and services to customers in the telecommunications
industry. The telecommunications industry has undergone a period of rapid
growth and consolidation during the last decade. Our business, financial
condition and results of operations will be seriously harmed if a significant
slowdown in the growth of the telecommunications industry occurs. In
addition, consolidations of our prospective customers may delay or cause
cancellations of significant sales of our products, which could seriously
harm our operating results.
OUR QUARTERLY RESULTS MAY FLUCTUATE WIDELY. Our operating results in
the past have fluctuated on a quarterly basis, and we expect fluctuations may
continue to occur in the future, which may impair our stock price. Many
factors contribute to these quarterly fluctuations, including:
- the demand for our products and services;
- market acceptance of our new products or those of our competitors;
- the ability of our Internet business to generate significant revenues;
- specific economic conditions in our businesses; and
- general economic conditions
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IF WE CANNOT COMPETE SUCCESSFULLY WITH EXISTING OR NEW COMPETITORS, OUR
BUSINESS COULD BE MATERIALLY ADVERSELY AFFECTED. We may be unable to compete
successfully with existing or new competitors and our failure to adapt to
changing market conditions and to compete successfully with established or
new competitors could have a material adverse effect on our results of
operations and financial condition.
The market for our software business is highly competitive and
fragmented, and we expect this competition to increase. We compete with
independent providers of information systems and services and with in-house
software departments of telecommunications companies. Our competitors
include firms that provide comprehensive information systems, software
vendors that sell products for the billing aspects of a total information
system, software vendors that specialize in billing software systems for
particular telecommunications services such as Internet services, systems
integrators, service bureaus and companies that offer software systems in
combination with the sale of network equipment. We anticipate continued
growth and competition in the telecommunications industry and, consequently,
the emergence of new software providers in the industry that will compete
with Billing.
The market for Internet products and services is highly competitive and
lacks significant barriers to entry. Competition in this market may
intensify in the future.
We also believe that our ability to compete depends in part on a number
of competitive factors, including:
- the development by others of products and services competitive with
our products and services;
- the price at which others offer competitive products and services;
- the responsiveness of our competitors to customer needs; and
- the ability of our competitors to hire, retain and motivate key
personnel.
Numerous well-established companies and smaller entrepreneurial
companies are focusing significant resources on developing products and
services that compete with ours. We compete with a number of companies that
have longer operating histories, larger customer bases, substantially greater
financial, technical, sales, marketing and other resources, and greater name
recognition. Current and potential competitors have established, and may
establish in the future, cooperative relationships among themselves or with
third parties to increase their ability to address the needs of our
prospective customers. Accordingly, new competitors or alliances among
competitors may emerge and rapidly acquire significant market share. As a
result, our competitors may be able to adapt more quickly than we to new or
emerging technologies and changes in customer requirements, and may be able
to devote greater resources, to the promotion and sale of their products.
TRANSACTION PROCESSING REVENUE. Despite the overall increase in
transaction processing, or LEC billing services, revenue from 1997,
transaction processing revenue growth has been negatively impacted by
"slamming" and "cramming" issues that have occurred in the long distance
industry. Slamming is defined as the unauthorized and illegal switching of a
customer's telephone service from one carrier to another carrier, while
cramming is the practice of a company billing customers for products and
services that they may not have ordered, and may not have received. These
"slamming and cramming" issues have caused some of the larger Local Exchange
Carriers ("LECs") to affect the ability of certain of Billing's customers to
market certain services. Also, as a proactive measure, Billing has taken
action against certain customers that includes, but is not limited to, the
cessation of billing for certain new or existing products. Management
continues to take actions in order to mitigate the effects of "slamming and
cramming" issues on the call record volumes of its current customer base.
These actions have negatively impacted transaction processing revenue. It is
still unclear what monetary impact these actions will have on the transaction
processing business and the Company's revenues in the future.
WE HAVE LIMITED SOFTWARE PRODUCT OFFERINGS AND OUR BUSINESS MAY SUFFER
IF DEMAND FOR ANY OF THESE PRODUCTS DECLINES OR IF WE CANNOT DEVELOP NEW
PRODUCTS TO MEET THE NEEDS OF OUR CUSTOMERS. We currently offer only three
software products. If another company were to develop products with more
features, better performance or wider acceptance than our products, sales of
our software products could decline. Any significant decrease in the sales
of our software products could seriously harm our results of operations.
DEPENDENCE UPON CONTRACTS WITH LOCAL TELEPHONE COMPANIES. Billing's
business is dependent upon its contractual relationships with over 1,300
local telephone companies pursuant to which these local telephone companies
bill and collect from their customers on Billing's behalf. Most of the
billing and collection agreements cover a one to five year period and provide
for automatic renewals unless notice of termination is given. Certain of
these local telephone companies, whose billing services provide access to a
vast majority of the businesses and households in the United States, are
legally required to provide billing and collection services for Billing if
they provide such services for
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any other third party, such as Billing's competitors and their own
competition. Although the Company has not experienced the termination of any
contracts in the past, there can be no assurance that these contracts will
continue in effect on their present terms, if at all. The termination of one
or more of these contracts would severely diminish the Company's capacity to
provide billing services in the geographic areas covered by the terminated
contracts and could adversely affect the Company's business.
WE MAY BE UNABLE TO PROTECT OUR PROPRIETARY TECHNOLOGY. Any
misappropriation of our technology or the development of competitive
technology could seriously harm our business. We regard all of our software
products and systems as proprietary and rely on a combination of statutory
and common law copyright, trademark and trade secret laws, customer licensing
agreements, employee and third party non-disclosure agreements and other
methods to protect our proprietary rights. We do not include in our software
any mechanisms to prevent or inhibit unauthorized use, but we generally enter
into confidentiality agreements with our employees, consultants, customers
and potential customers that limit access to and distribution of proprietary
information.
The steps we have taken to protect our proprietary rights may be
inadequate. If so, we may not be able to prevent others from using what we
regard as our technology to compete with us. Existing trade secret, copyright
and trademark laws offer only limited protection. In addition, the laws of
some foreign countries do not protect our proprietary technology to the same
extent as the laws of the United States. Other companies could independently
develop similar or superior technology without violating our proprietary
rights.
If we have to resort to legal proceedings to enforce our intellectual
property rights, the proceedings could be burdensome and expensive and could
involve a high degree of risk.
OUR LENGTHY SALES CYCLE MAKES IT DIFFICULT TO ANTICIPATE THE TIMING OF
SALES. The sales cycle associated with the purchase of our software systems
is lengthy, with the time between the making of an initial proposal to a
prospective customer and the signing of a sales contract typically averaging
between six and twelve months. Software billing systems are relatively
complex and their purchase generally involves a significant commitment of
capital, with attendant delays frequently associated with large capital
expenditures and implementation procedures within an organization. Moreover,
the purchase of such products typically requires coordination and agreement
across a potential customer's entire organization. Delays associated with
such timing factors may reduce our revenue in a particular period without a
corresponding reduction in its costs, which could have a material adverse
effect on the results of operations and financial condition of Billing.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO DEVELOP LONG-TERM
RELATIONSHIPS WITH OUR CUSTOMERS AND OTHER THIRD PARTIES. We believe that
our future success depends to a significant extent on our ability to develop
long-term relationships with our customers and third parties. We may be
unable to develop new customer relationships and our new customers may be
unsuccessful in their business, thereby ending our relationship. Our Internet
business is dependent upon arrangements with third parties related to
generating traffic on our Internet Web sites. Our failure to maintain these
customer and other third-party relationships or the failure of new customers
to be successful could have a material adverse effect on our business,
results of operations and financial condition.
THE SKILLED EMPLOYEES THAT BILLING NEEDS MAY BE DIFFICULT TO HIRE AND
RETAIN. Our success depends in large part on our ability to attract, train,
motivate and retain highly skilled information technology professionals,
software programmers and telecommunications engineers. These types of
qualified personnel are in great demand and are likely to remain a limited
resource for the foreseeable future. The ability of Billing to expand its
business is highly dependent upon its success in recruiting such personnel
and its ability to manage and coordinate its developing efforts. Billing may
be unable to continue to attract and retain the skilled employees it requires
and any inability to do so could adversely impact its ability to manage and
complete its existing projects and to compete for new customer contracts. In
addition, the resources required to attract and retain such personnel may
adversely affect Billing's operating margins. The failure to attract and
retain qualified personnel may have a material adverse effect on the
business, results of operations and financial condition of Billing.
PRODUCT DEFECTS OR SOFTWARE ERRORS COULD ADVERSELY AFFECT OUR BUSINESS.
Design defects or software errors may cause delays in product introductions
or damage customer satisfaction and may have a material adverse effect on the
business, results of operations and financial condition of Billing. Our
software products are highly complex and may, from time to time, contain
design defects or software errors that may be difficult to detect and correct.
Since our products are generally used by our customers to perform
mission-critical functions, design defects, software errors, misuse of our
products, incorrect data from external sources or other potential problems
within or outside of our control may arise from the use of our products, and
may result in financial or other damages to our customers. Completion of the
development and implementation phases of a project generally requires between
six and twelve months of work. During this period, a customer's budgeting
constraints and internal reviews, over which we have little or no control,
can impact operating results. Our failure or inability to meet a customer's
expectations in providing
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products or performing services may result in the termination of our
relationship with that customer or could give rise to claims against us.
Although we have license agreements with our customers that contain
provisions designed to limit our exposure to potential claims and liabilities
arising from customer problems, these provisions may not effectively protect
us against such claims in all cases. Claims and liabilities arising from
customer problems could damage our reputation, adversely affecting our
business, results of operations and financial condition.
BREACHES IN THE SECURITY OF THE DATA COLLECTED BY OUR SYSTEMS COULD
ADVERSELY AFFECT OUR REPUTATION AND RESULTS OF OPERATIONS. Our customers
rely on third-party security features to protect the privacy and integrity of
customer data. Our products may be vulnerable to breaches in security due to
defects in the security mechanisms, the operating system, the hardware
platform or the networks linked to the platform. Our BC WEBTRACK product,
which provides access to information using Web access, presents additional
security issues for our customers. Security vulnerabilities could jeopardize
the security of information stored in and transmitted through the computer
systems of our customers. If the security of our products were compromised,
our reputation and product acceptance would be significantly harmed, which
would cause our business to suffer.
CLAIMS BY OTHERS THAT WE INFRINGE ON THEIR PROPRIETARY TECHNOLOGY COULD
HARM OUR BUSINESS. Although we have not received any formal notices from
third parties alleging infringement claims, third parties could claim that
our current or future products or technology infringe their proprietary
rights. We expect that software developers and Internet businesses will
increasingly be subject to infringement claims as the number of products and
competitors providing various products and services increases and overlaps
occur. Any claim of infringement by a third party could cause Billing to
incur substantial costs defending against the claim, even if the claim is
invalid, and could distract its management from Billing's business.
Furthermore, a party making such a claim could secure a judgment that
requires Billing to pay substantial damages. A judgment could also include an
injunction or other court order that could prevent Billing from selling its
products. Any of these events could seriously harm Billing's business.
If anyone asserts a claim against Billing relating to proprietary
technology or information, Billing might seek to license that party's
intellectual property or to develop non-infringing technology. Billing might
not be able to obtain a license on commercially reasonable terms or on any
terms. Alternatively, Billing's efforts to develop non-infringing technology
could be unsuccessful. Its failure to obtain the necessary licenses or other
rights or develop non-infringing technology could prevent Billing from
selling its products and could therefore seriously harm its business.
DEPENDENCE UPON KEY PERSONNEL. Our future success depends to a
significant degree upon the continued services of our Chairman of the Board
and Chief Executive Officer, Parris H. Holmes, Jr., and other key senior
management personnel. We have a five-year evergreen employment agreement
with Mr. Holmes which contains non-compete and confidentiality provisions.
Our Internet business is substantially dependent upon C. Lee Cooke, Jr.,
Garett Davis and John Hokkanen. We currently do not have a president of
Aptis, Inc., the subsidiary through which we operate our software systems and
services business. Billing's future success depends on its continuing ability
to attract and retain highly qualified managerial personnel. Competition for
such personnel is intense, and there can be no assurance that Billing will be
able to retain its key managerial employees or attract, assimilate or retain
other highly qualified managerial personnel in the future. Failure to do so
could have a material adverse effect upon the Company's business and results
of operations.
OUR INTERNET BUSINESS MAY HAVE PROBLEMS RAISING MONEY IN THE FUTURE.
Our Internet business was formed in 1999 and has lost money since inception.
The Company has funded these losses out of its available cash. The Company
may not be able to continue funding such losses in the future, and our
Internet business may need to seek additional funding from outside sources.
We cannot assure you that such funding will be available, or if it is, that
it will be available on terms advantageous to the Company.
OUR INTERNET BUSINESS FACES CERTAIN RISKS INHERENT TO THE INTERNET
INDUSTRY. Our Internet business faces those business risks inherent to the
Internet industry, including:
- - - our Internet business is dependent on the increased use of the
Internet by credit unions and other businesses and individuals;
- - - growing concerns about the placement of "cookies" on a user's
drive may limit our ability to develop user profiles;
- - - we may be liable for information downloaded from the Internet;
- - - our Internet business must be able to respond to the rapid changes
in technology and distribution channels related to the Internet; and
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- - - we must develop and maintain positive brand awareness of our
Internet brand names, including Good2CU.com.
OUR INVESTMENT IN PRINCETON ECOM CORPORATION IS SUBJECT TO RISKS AND WE
COULD LOSE OUR ENTIRE INVESTMENT. We have a minority interest in Princeton
eCom Corporation ("Princeton"). Accordingly, we do not control Princeton, and
our ability to achieve an acceptable rate of return on this investment is
subject to a number of risk factors often beyond our control, including any
strategic or operational decisions made by Princeton, increased competition
and lack of market share, quality of management, cyclical or uneven financial
results, technological obsolescence and regulatory delays. As an early-stage
company, Princeton is subject to various risks common to early-stage and
start-up companies, including lack of a customer base, lack of name
recognition and credibility and the need to develop and refine the plan of
operation of the business. We do not know whether Princeton will mature and
generate a return or permit us to recoup invested capital. Our investment in
Princeton may not provide us with any benefit, and we may not achieve any
economic return on this investment. The market for the products of Princeton
is intensely competitive. Many of its current and potential competitors have
longer operating histories and substantially greater financial, technical and
marketing resources and name recognition. Current or potential competitors
may develop products comparable or superior to those developed by Princeton
or adapt more quickly than them to new technologies, evolving industry
standards, new product introductions or changing customer requirements.
Princeton is a privately held company and, as such, our investment is not
readily marketable. As such, we may not be able to sell our investment in
Princeton at an acceptable price or at all.
THE MARKET PRICE OF OUR COMMON STOCK HAS AND MAY CONTINUE TO FLUCTUATE
WIDELY. The market price of our Common Stock has fluctuated widely and may
continue to do so. Moreover, the stock market experiences significant price
and volume fluctuations. These fluctuations particularly affect the market
prices of the securities of many high technology and Internet companies.
These broad market fluctuations could adversely affect the market price of
our Common Stock. When the market price of a stock has been volatile, holders
of the stock have often instituted securities class action litigation against
the company that issued the stock. If any of our stockholders brought a
securities class action lawsuit against us, we could incur substantial costs
defending the lawsuit. The lawsuit could also divert the time and attention
of our management. Any of these events could seriously harm our business.
YEAR 2000. As of January 26, 2000, the Year 2000 date change has not
posed a significant problem for the Company. However, because the Company's
business relies on processing date-sensitive telephone call records supplied
by third parties, it is possible that non-compliant third-party computer
systems may not have provided accurate data for processing through the
Company's computer systems. The Company's business, financial condition and
results of operations could be materially adversely affected by the Year 2000
date change if it or unrelated parties failed to successfully address this
issue.
The above Year 2000 disclosure constitutes a "Year 2000 Readiness
Disclosure" as defined in The Year 2000 Information and Readiness Disclosure
Act (the "Act"), which was signed into law on October 19, 1998. The Act
provides added protection from liability for certain public and private
statements concerning a company's Year 2000 readiness.
DIVIDEND POLICY. The Company has never paid cash dividends. The future
payment of dividends by the Company will depend on decisions that will be
made by the Board of Directors of the Company based on the results of
operations and financial condition of Billing and such other business
considerations as the Board of Directors of Billing considers relevant. We
do not expect to pay dividends in the foreseeable future. Additionally, the
Company is a holding company whose only material assets are the stock of its
subsidiaries. As a result, we conduct no business and will be dependent on
distributions we receive from our subsidiaries to pay dividends. There can
be no assurance that any such distributions will be adequate to pay any
dividends. Moreover, Billing is subject to certain restrictions on the
payment of dividends pursuant to its credit agreements.
AUTHORIZATION OF PREFERRED STOCK. The Company's Certificate of
Incorporation authorizes the issuance of preferred stock with designations,
rights and preferences determined from time to time by its Board of
Directors. Accordingly, the Board of Directors is empowered, without your
approval, to issue preferred stock with dividend, liquidation, conversion,
voting or other rights that could adversely affect the voting power or other
rights of the holders of the Common Stock. In the event of issuance, the
preferred stock could be used, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
Although the Company has no present intention to issue any shares of its
preferred stock, we may do so in the future.
THE COMPANY
Billing is a business services and technology company with operations in
three principal segments - Transaction Processing ("Transaction Processing"),
Software ("Aptis") and Internet.
TRANSACTION PROCESSING
Transaction Processing provides third-party billing clearinghouse and
information management services billing. This process is known within the
industry as "Local Exchange Carrier billing" or "LEC billing." Transaction
Processing's customers include direct dial long distance telephone companies,
operator services providers, information providers, competitive local
exchange companies, Internet service providers and integrated communications
services providers.
Transaction Processing maintains contractual billing arrangements with
over 1,300 local telephone companies that provide access lines to, and
collect for services from, end users of telecommunication services.
Transaction Processing processes telephone call records and other
transactions and collects the related end-user charges from these local
telephone companies on behalf of its customers.
The direct dial long distance customers of Transaction Processing use
the Company as a billing clearinghouse for processing and collecting call
records generated by their end users. Although such carriers can bill end
users directly,
7
<PAGE>
Billing provides these carriers with a cost-effective means of billing and
collecting residential and small commercial accounts through the local
telephone companies.
Transaction Processing also processes telephone call records for
customers providing operator services largely to the hospitality, penal and
private pay telephone industries. In addition, Billing processes records for
telephone calls that require operator assistance and/or alternative billing
options such as collect and person-to-person calls, third-party billing and
calling card billing. Since operator services providers have only the billing
number and not the name or address of the billed party, they must have access
to the services of the local telephone companies to collect their charges.
Transaction Processing provides this access to its customers through its
contractual billing arrangements with the local telephone companies that bill
and collect on behalf of these operator services providers.
This business segment acts as an aggregator of telephone call records
and other transactions from various sources and due to its large volume, it
receives discounted billing costs with the local telephone companies and can
pass on these discounts to its customers. Additionally, Billing can provide
its services to those long distance carriers and operator services providers
who would otherwise not be able to make the investments in billing and
collection agreements with the local telephone companies, fees, systems,
infrastructure and volume commitments required to establish and maintain the
necessary relationships with the local telephone companies.
In 1994, Transaction Processing began providing enhanced billing
services for processing transactions related to providers of premium services
or products that can be billed through the local telephone companies, such as
charges for 900 access pay-per-call transactions, cellular long distance
services, paging services, voice mail services, Internet access, Caller ID
and other non-regulated telecommunications equipment charges.
In addition to its full-service LEC billing product, Transaction
Processing also offers billing management services to customers who have
their own billing arrangements with the local telephone companies. These
management services may include data processing, accounting, end-user
customer service and telecommunication tax processing and reporting.
SOFTWARE
Aptis develops, markets and supports convergent billing and customer
care software applications. Aptis' customers include facilities-based
operators and resellers of community services based on the traditional public
switched network as well as next generation networks built around IP
("Internet Protocol"). These companies include competitive local exchange
companies, long distance companies, integrated communications providers
("ICP"), Internet services providers ("ISP"), applications services
providers, network service providers ("NSP") and enhanced data services
providers.
Aptis has developed, and continues to enhance, sophisticated software
applications in order to meet the current and evolving billing requirements
of its customers. The Company's software applications support complex
billing of NSP, ISP and ICP customers in a multi-service environment. Aptis'
convergent billing platform has the capability to produce a single convergent
bill whereby multiple services and products such as local exchange, long
distance wireless and data communications can be billed directly to the end
user under one, unified billing statement. The software also has the
flexibility to be configured to meet a company's unique business rules and
product set.
In addition to its software products, a full range of professional
services are also available through the Company. These services include
consulting, development and systems operations services centered on the
Internet and communications industries and their software products. Aptis
also provides ongoing support, maintenance and training related to customers'
billing and customer care systems. In addition to its software applications
and services, Aptis is a reseller of IBM AS/400 hardware that is used as the
hardware platform to host certain Aptis software applications.
Billing entered the software market in June 1997 in conjunction with the
acquisition of Computer Resources Management, Inc. ("CRM"). At that time the
software division was re-named Billing Concepts Systems, Inc. ("BCS"). CRM
had developed and sold billing applications to the long distance and
convergent services markets. Additionally, in October 1998, BCC acquired
Expansion Systems Corp. ("ESC") and integrated it into BCS. ESC had
developed a customer care and billing application for ISPs that automates the
registration of new Internet subscribers and creates bills for customers'
services. In December 1998, Billing completed the merger of Communications
Software Consultants, Inc. ("CommSoft"). CommSoft was an international
software development and consulting firm specializing in the
telecommunications industry. In April 1999, BCC announced that BCS would
operate under the name Aptis. Through these actions, Aptis has expanded its
potential markets to include companies focused on providing sophisticated
broadband Internet Protocol and enhanced data services.
8
<PAGE>
INTERNET
Over the last five years, the Internet and the Worldwide Web have grown
at an explosive rate. The growth of the Internet is a global phenomenon that
is fundamentally changing the way business is conducted. The increase in the
number of Internet users, coupled with the proliferation of new types of
on-line and electronic commerce, or e-commerce, has fueled the emergence of
new service providers such as ISPs and Internet telephony providers. In
addition, traditional telecommunications carriers have entered the Internet
market, providing on-line and e-commerce services to both businesses and
consumers. One of the consequences of the widespread growth and acceptance
of Web use is that consumers are rapidly embracing the ability to pay their
bills and conduct other personal business over the Internet. This trend has
generated a growing interest by large national and regional bill senders to
publish their bills electronically. The Company has embraced the Internet
phenomenon and addressed it in its core Transaction Processing and Aptis
businesses. Additionally, the Company has invested in acquisition
opportunities directly related to the Internet, as discussed below.
In September 1998, Billing acquired 22% of the capital stock of
Princeton eCom Corporation ("Princeton"), formerly known as Princeton
Telecom Corporation. Princeton, founded in 1983 by a group of Princeton
University professors, is a privately held company headquartered in
Princeton, New Jersey specializing in comprehensive electronic bill
presentment and payment services via the Internet to financial institutions
and large businesses. Princeton's services eliminate the need for companies
to generate and mail paper bills as well as the need for consumers to write
and mail paper checks. Princeton also provides electronic lockbox (els) and
credit card balance transfer services. Through September 30, 1999, the
Company acquired additional shares of Princeton common stock, increasing the
Company's ownership to approximately 24% at September 30, 1999. In November
1999, the Company increased its ownership interest in Princeton to 27% with
an additional equity investment of $2.6 million. The Company also
anticipates additional equity investments in Princeton as Princeton positions
itself for further growth.
In November 1999, the Company completed the acquisition of FIData, Inc.,
a company located in San Antonio, Texas that provides Internet-based
automated loan approval products to the financial services industries.
FIData was formed in 1987 to provide the credit union industry with
self-service technology. The proprietary products of FIData facilitate
Internet-based automated approval of consumer loans. The FIData
state-of-the-art technology is easily installed and may rapidly change a
lender's Web site into an interactive revenue and self-service center. In
addition to credit unions, the FIData products have application in the
banking, insurance, mortgage and retail markets. In conjunction with the
FIData transaction, the Company also completed the acquisition of a company
located in Austin, Texas that is developing an Internet-based financial
services Web site focused on the credit union industry and its members.
As of the date of this report, the Company has invested $21.7 million,
and committed an additional $2.6 million of capital resources in the Internet
arena and plans to make further significant investments of capital in
Internet-related operations over the foreseeable future. The Company will
continue to review additional strategic Internet acquisition opportunities
that will complement or enhance its existing operations.
Billing is a Delaware corporation. Our principal executive offices are
located at 7411 John Smith Drive, Suite 200, San Antonio, Texas 78229, and
our telephone number is (210)949-7000.
USE OF PROCEEDS
The Shares to be sold pursuant to the Prospectus are owned by certain
stockholders of the Company. The Company will not receive any of the
proceeds from the sale of the Shares. See "Selling Stockholders."
SELLING STOCKHOLDERS
The table below presents the following information about the number of
shares of the Common Stock of the Company which is owned by the Selling
Stockholders: (i) the number of shares each Selling Stockholder beneficially
owns as of the date of this Prospectus, (ii) the percentage of the Company's
outstanding shares of Common Stock that each Selling Stockholder beneficially
owns prior to the offering, (iii) the number of shares that each Selling
Stockholder is offering under this Prospectus, (iv) the number of shares that
each Selling Stockholder will beneficially own after the completion of this
offering and (v) the percentage of the Company's outstanding shares of Common
Stock that each Selling Stockholder will beneficially own after the
completion of the offering.
9
<PAGE>
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
BEFORE THE OFFERING AFTER THE OFFERING(1)
------------------------ ----------------------
NUMBER PERCENTAGE SHARES TO NUMBER PERCENTAGE
NAME OF SHARES OF CLASS(2) BE SOLD OF SHARES OF CLASS
---- --------- ----------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
Mel Ray 387,277 1.0 387,277 0 0
Southwest Business Corporation 135,170 * 135,170 0 0
First Advisors, Inc. 53,377 * 53,377 0 0
Troy Asset Advisors, Inc. 53,377 * 53,377 0 0
Daniel N. Matheson 53,377 * 53,377 0 0
HCIE, L.L.C. 53,377 * 53,377 0 0
Mary Lake Partners, Ltd. 47,930 * 47,930 0 0
Troy Partners, Ltd. 47,930 * 47,930 0 0
Troy Partners II, Ltd. 47,930 * 47,930 0 0
William Hammock 37,234 * 37,234 0 0
FIData Equity Partners, L.P.(3) 36,840 * 36,840 0 0
An additional twelve Selling
Stockholders, each of whom
beneficially owns less than one-
tenth of one percent of the
outstanding Common Stock of
Billing at January 26, 2000 146,181 * 146,181 0 0
TOTAL 1,100,000 2.9 1,100,000 0 0
</TABLE>
- - -------------------------
* represents less than 1%
(1) Assumes all shares of Common Stock offered hereby are sold.
(2) Based on 38,544,557 shares of the Company outstanding as of January 26,
2000.
(3) Subsequent to the date of this Prospectus, the shares held by FIData Equity
Partners, L.P. may be distributed to First Advisors, Inc., Troy Asset
Advisors, Inc., Daniel N. Matheson, HCIE, L.L.C., Roger K. Beasley,
Austin A. Cooper, Joe Gilliland, Gary J. Davis, Newton F. Hamlin, Greg
Hurd, Robert E. Johnson, KJEI, Ltd., Mary Lake Partners, Ltd., Charles
H. McCoy, Jane L. Riley, Edward H. Solter, Troy Partners, Ltd., Troy
Partners II, Ltd. and Steffen E. Waltz.
In November 1999, FIData was merged (the "Merger") into a wholly owned
subsidiary of the Company. In connection with the Merger, the Selling
Stockholders received an aggregate of 1,100,000 shares of Common Stock, which
are being offered hereby.
PLAN OF DISTRIBUTION
All 1,100,000 shares of Common Stock being offered hereby are being
registered on behalf of the Selling Stockholders. All of the shares were
issued by us in connection with our acquisition of FIData. Billing will
receive no proceeds from this offering. As used herein, the term "Selling
Stockholder" includes donees and pledgees selling Shares received from a
Selling Stockholder after the date of this Prospectus.
Each Selling Stockholder will act independently of Billing in making
decisions with respect to the timing, manner and size of each sale. Each
Selling Stockholder may choose to sell the Shares from time to time at market
prices prevailing at the time of the sale, at prices related to the then
prevailing market prices or in negotiated transactions, including pursuant to
an underwritten offering or pursuant to one or more of the following methods:
- a block trade in which the broker or dealer so engaged will attempt
to sell the Shares as agent but may position and resell a portion of the
block as principal in order to facilitate the transaction,
- purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this Prospectus, and
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
In connection with the sale of the Shares, a Selling Stockholder may
engage broker-dealers who in turn may arrange for other broker-dealers to
participate. Broker-dealers may receive commissions or discounts from a
Selling
10
<PAGE>
Stockholder in amounts to be negotiated immediately prior to the sale. In
addition, underwriters or agents may receive compensation from a Selling
Stockholder or from purchasers of the Shares for whom they may act as agents,
in the form of discounts, concessions or commissions. Underwriters may sell
shares to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they act as agents. A Selling
Stockholder, underwriters, brokers, dealers and agents that participate in
the distribution of the Shares may be deemed to be underwriters, and any
discounts or commissions received by them from a Selling Stockholder and any
profit on the resale of the Shares by them may be deemed to be underwriting
discounts and commissions under the Securities Act.
At the time a particular offer of Shares is made, to the extent required,
a supplement to this Prospectus will be distributed which will identify and
set forth the aggregate amount of Shares being offered and the terms of the
offering. Such supplement will also disclose the following information:
- the name or names of any underwriters, dealers or agents,
- the purchase price paid by any underwriter for Shares purchased from
the Selling Stockholders,
- any discounts, commissions and other items constituting compensation
from the Selling Stockholders and/or Billing, and
- any discounts, commissions or concessions allowed or reallowed or
paid to dealers, including the proposed selling price to the public.
We have agreed to indemnify the Selling Stockholders in certain
circumstances against certain liabilities, including liabilities under the
Securities Act. Each Selling Stockholder has agreed to indemnify Billing in
certain circumstances against certain liabilities, including liabilities
under the Securities Act.
The Selling Stockholders also may resell all or a portion of the Shares
in open market transactions in reliance upon Rule 144 under the Securities
Act, provided he or it meets the criteria and conforms to the requirements of
such Rule.
The Selling Stockholders and any other persons participating in the sale
or distribution of the Shares being registered hereby will be subject to the
provisions of the Exchange Act and the rules and regulations thereunder,
including Regulation M, to the extent applicable. The foregoing provisions
may limit the timing of purchases and sales of any of the Shares by a Selling
Stockholder or any other such person. This may affect the marketability of
the Shares. Each Selling Stockholder also will comply with the applicable
prospectus delivery requirements under the Securities Act in connection with
the sale or distribution of the Shares hereunder.
In order to comply with certain states' securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the Shares may not be sold
unless the Shares have been registered or qualified for sale in such state,
unless an exemption from registration or qualification is available and is
obtained.
Billing will bear all out-of-pocket expenses incurred in connection with
the registration of the Shares, including, without limitation, all
registration and filing fees imposed by the Commission, The Nasdaq Stock
Market, Inc. and blue sky laws, printing expenses, transfer agents' and
registrars' fees, and the fees and disbursements of Billing's outside counsel
and independent public accountants. The Selling Stockholders will bear all
underwriting discounts and commissions and transfer or other taxes.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Article XV of the Company's Certificate of Incorporation ("Article XV")
eliminates the personal liability of the Company's directors to the Company
or its stockholders for monetary damages for breach of fiduciary duty except
under certain circumstances. Directors remain liable for (i) any breach of
the duty of loyalty to the Company or its stockholders, (ii) any act or
omission not in good faith or which involves intentional misconduct or a
knowing violation of law, (iii) any violation of Section 174 of the Delaware
General Corporation Law ("DGCL"), which proscribes the payment of dividends
and stock purchases or redemptions under certain circumstances, and (iv) any
transaction from which a director derived an improper personal benefit.
11
<PAGE>
Article XV further provides that future repeal or amendment of its terms
will not adversely affect any rights of directors existing thereunder with
respect to acts or omissions occurring prior to such repeal or amendment.
Article XV also incorporates any future amendments to Delaware law which
further eliminate or limit the liability of directors.
Under Section 145 of the DGCL, 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 the DGCL requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the Company.
Article VIII of the Company's Amended and Restated Bylaws provides that
the Company shall indemnify any person to whom, and to the extent,
indemnification may be granted pursuant to Section 145 of the DGCL.
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 or malfeasance 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers and controlling persons
pursuant to the foregoing provisions, the Company has been advised that, in
the opinion of the Commission, such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon by W.
Audie Long, General Counsel of the Company. At January 26, 2000, Mr. Long
beneficially owned 184,000 shares of Billing's Common Stock.
EXPERTS
The consolidated financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1999 incorporated
by reference in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, to the extent and for the periods set forth
in their reports incorporated herein by reference, and are incorporated
herein in reliance on such reports given upon the authority of such firm as
experts in accounting and auditing.
12
<PAGE>
================================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
Available Information .................................................... 2
Incorporation of Certain Documents by Reference .......................... 2
Special Note Regarding Forward-Looking Statements ........................ 3
Risk Factors ............................................................. 3
The Company .............................................................. 7
Use of Proceeds .......................................................... 9
Selling Stockholders ..................................................... 9
Plan of Distribution ..................................................... 10
Disclosure of Commission Position on Indemnification for Securities Act
Liabilities ............................................................ 11
Legal Matters ............................................................ 12
Experts .................................................................. 12
</TABLE>
1,100,000 SHARES
BILLING CONCEPTS CORP.
COMMON STOCK
----------
P R O S P E C T U S
JANUARY 28, 2000
----------
================================================================================
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this offering are:
Commission registration fee $1,851.30
Legal fees and expenses* 5,000.00
Miscellaneous* 500.00
Total $7,351.30
=========
____________________
* Estimated
The Company has agreed to pay all the costs and expenses of this
offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL empowers the Registrant to, and the Bylaws of
the Registrant provide that it shall, indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he is or was
a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful; except that, in the case of an
action or suit by or in the right of the Registrant, no indemnification may
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Registrant unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine that such person is fairly and reasonably entitled to
indemnity for proper expenses.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
The Registrant maintains directors' and officers' liability insurance
that covers the directors and officers of the Registrant.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Exhibit
- - ----------- -------
<S> <C>
5.1 Opinion of Billing Concepts Corp. regarding legality (filed herewith)
10.1 Registration Rights Agreement dated November 8, 1999, among Billing
Concepts Corp., FIData Equity Partners, L.P., Southwest Business Corporation,
Mel Ray and William Hammock
23.1 Consent of Billing Concepts Corp. (contained in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (included on signature page).
</TABLE>
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) 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 to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the 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 therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof; and
(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.
(b) 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 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(c) The undersigned Registrant hereby undertakes that, 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, the Registrant has been
advised that in the opinion of the Commission, such indemnification is
against public policy as expressed in the 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.
II-2
<PAGE>
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-3 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 on
the 27th day of January, 2000.
BILLING CONCEPTS CORP.
By: /s/ David P. Tusa
----------------------------------
David P. Tusa
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Parris H. Holmes, Jr. and David P.
Tusa, 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.
SIGNATURE TITLE DATE
- - --------- ----- ----
/s/ Parris H. Holmes, Jr. Chairman of the Board and January 27, 2000
- - ------------------------- Chief Executive Officer
Parris H. Holmes, Jr. and a Director
(Principal Executive Officer)
/s/ David P. Tusa Senior Vice President January 27, 2000
- - ------------------------- and Chief Financial Officer
David P. Tusa (Principal Financial and
Accounting Officer)
/s/ Lee Cooke Director January 27, 2000
- - -------------------------
Lee Cooke
/s/ William H. Cunningham Director January 27, 2000
- - -------------------------
William H. Cunningham
/s/ Thomas G. Loeffler Director January 27, 2000
- - -------------------------
Thomas G. Loeffler
/s/ James E. Sowell Director January 27, 2000
- - -------------------------
James E. Sowell
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- - ----------- -------
<S> <C>
5.1 Opinion of Billing Concepts Corp. regarding legality (filed herewith) .........
10.1 Registration Rights Agreement dated November 8, 1999, among Billing
Concepts Corp., FIData Equity Partners, L.P., Southwest Business
Corporation, Mel Ray and William Hammock ......................................
23.1 Consent of Billing Concepts Corp. (contained in Exhibit 5.1) ..................
23.2 Consent of Arthur Andersen LLP (filed herewith) ...............................
24.1 Power of Attorney (included on signature page) ................................
</TABLE>
<PAGE>
EXHIBIT 5.1
[BILLING CONCEPTS LETTERHEAD]
January 27, 2000
Billing Concepts Corp.
7411 John Smith Drive, Suite 200
San Antonio, Texas 78229
Dear Sirs:
As General Counsel to Billing Concepts Corp., a Delaware corporation
(the "Company"), I am familiar with the Registration Statement on Form S-3
(the "Registration Statement") to be filed with the Securities and Exchange
Commission on or about January 27, 2000, under the Securities Act of 1933, as
amended, relating to an aggregate of 1,100,000 shares (the "Shares") of
Common Stock, $.01 par value ("Common Stock"), and the Series A Junior
Participating Preferred Stock Purchase Rights carried with the Common Stock
(the "Rights"), of the Company to be sold by the selling stockholders
listed in the Registration Statement (the "Selling Stockholders"). The
Shares have been issued pursuant to the terms of the Merger described in the
Registration Statement.
In connection therewith, I have examined such corporate records,
documents and such questions of law as I have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in my opinion the 1,100,000 shares of Common
Stock, and the Rights carried with the Common Stock, to be sold by the
Selling Stockholders have been duly and validly authorized, validly issued,
fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ W. Audie Long
W. Audie Long
Senior Vice President
and General Counsel
WAL:plw
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into this 18th day of November, 1999, by and among FIDATA Equity
Partners, L.P., Southwest Business Corporation, Mel Ray and William Hammock
(collectively, the "Shareholders"), and Billing Concepts Corp., a Delaware
corporation ("BCC" or the "Company").
This Agreement is entered into in connection with that certain Plan of
Reorganization, Merger and Acquisition Agreement (the "Merger Agreement")
among the parties hereto of even date herewith (the "Closing Date"), pursuant
to which, among other things, the Company issued to the Shareholders an
aggregate of 1,100,000 shares (the "Shares") of the common stock, par value
$0.01 per share ("Common Stock"), of the Company. The Merger Agreement
provides that the Company and the Shareholders will enter into this
Agreement. Capitalized terms used herein but not defined herein shall have
the meaning ascribed to them in the Merger Agreement, unless the context
requires otherwise.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. REGISTRATION. BCC shall be obligated to the Shareholders as
follows:
1.1 REGISTRATION RIGHTS. As soon after the Closing Date as is
reasonably practicable, but in no event more than 15 days from the Closing
Date, BCC will, if it is a registrant entitled to use Form S-3 to register
the Shares held by the Shareholders, file a registration statement on Form
S-3 (or any successor to Form S-3), or, if BCC is ineligible to file such
registration statement on Form S-3, then Form S-1 (or any successor to Form
S-1), with the Securities and Exchange Commission (the "SEC") and such
applications or other filings as required under applicable state securities
or blue sky laws sufficient to permit the public offering of the Shares held
by the Shareholders (including the Holdback Shares) to be made on a
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), and shall use its best efforts to cause such
registration statement to be declared effective within 45 days from the
Closing Date, so that the Shares held by the Shareholders will be registered
for the offering on such Form; provided, however, that BCC shall be obligated
to file only one such registration statement on Form S-3 under this SECTION 1.1.
Notwithstanding the foregoing, BCC shall not be obligated to effect a
registration pursuant to this SECTION 1.1: (i) in any particular jurisdiction
in which BCC would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance unless
BCC is already subject to service in such jurisdiction and except as may be
required by the Securities Act; and (ii) if BCC shall furnish to each
Shareholder a certificate signed by the President of BCC stating that in the
good faith judgment of the Board of Directors the filing of a registration
statement would require the disclosure of material information that BCC has a
bona fide business purpose for preserving as confidential and that is not
then otherwise required to be disclosed, in which case BCC's obligation to
use its best efforts to file a registration statement shall be deferred for a
period not to exceed 60 days from the receipt of such certificate by the
Shareholders.
<PAGE>
1.2 REGISTRATION PROCEDURES AND EXPENSES. If and whenever BCC is
required to include the Shares held by the Shareholders in a registration
statement under the Securities Act, as provided in SECTION 1.1 hereof, BCC
shall, as expeditiously as is reasonably practicable, do each of the
following:
(a) prepare and file with the SEC a registration statement with
respect to the Shares held by the Shareholders and, subject to the
limitations under SECTION 1.1 hereof, use its best efforts to cause such
registration statement to become effective and remain effective as provided
herein;
(b) cooperate with the Shareholders and any underwriter who shall
sell the Shares held by the Shareholders in connection with their review of
BCC made in connection with such registration;
(c) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective until the
earlier to occur of the sale of all of the Shares by the Shareholders and
the date 30 days following the first anniversary of the effectiveness of the
registration statement, and to comply with the provisions of the Securities
Act and the Exchange Act of 1934, as amended (the "Exchange Act"), with
respect to the disposition of all the Shares covered by such registration
statement for such period;
(d) furnish to the Shareholders such number of copies of the
prospectus forming a part of such registration statement (including each
preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as the Shareholders may reasonably
request in order to facilitate the disposition of the Shares; and
(e) notify the Shareholders at any time when a prospectus relating to
the Shares is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus forming a part of
such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and at the request of the Shareholders,
prepare and furnish to the Shareholders a reasonable number of copies of any
supplement to or any amendment of such prospectus that may be necessary so
that, as thereafter delivered to the purchasers of the Shares, such
prospectus shall not include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
1.3 AGREEMENT BY THE SHAREHOLDERS. In the event that a Shareholder
participates, pursuant to this ARTICLE 1, in the offering of the Shares, such
Shareholder shall:
(a) furnish BCC all material information reasonably requested by BCC
concerning the Shareholder and the proposed method of sale or other
disposition of the Shares and such other information and undertakings as
shall be reasonably required in connection with the preparation and filing of
the registration statement covering the Shares in order to ensure full
compliance with the Securities Act and the rules and regulations of the SEC
thereunder;
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<PAGE>
(b) cooperate in good faith with BCC and its underwriters, if any, in
connection with such registration, including placing the Shares in escrow or
custody to facilitate the sale and distribution thereof, provided that such
escrow or custody arrangement shall be no more restrictive upon the
Shareholder than upon any other holder of BCC Stock for the benefit of whom
such registration is undertaken; and
(c) make no further sales or other dispositions, or offers therefor,
of the Shares under such registration statement if, during the effectiveness
of such registration statement, an intervening event should occur which, in
the opinion of counsel to BCC, makes the prospectus included in such
registration statement no longer comply with the Securities Act, so long as
written notice containing the facts and legal conclusions relied upon by BCC
in this regard has been received by the Shareholder from BCC, until such time
as the Shareholder has received from BCC copies of a new, amended or
supplemented prospectus complying with the Securities Act, which prospectus
shall be delivered to the Shareholder by BCC within 20 days after such
notice.
1.4 ALLOCATION OF EXPENSES. If and whenever BCC is required by the
provisions of this ARTICLE 1 to use its best efforts to effect the
registration of the Shares under the Securities Act, BCC shall pay the costs
and expenses in connection therewith, other than the attorneys' fees of the
Shareholders; provided, however, that the Shareholders shall pay all
underwriting discounts, selling commissions and stock transfer taxes
attributable to the Shares under such registration statement.
1.5 INDEMNIFICATION. (a) In the event of any registration of any of
the Shares under the Securities Act pursuant to this ARTICLE 1, each
Shareholder shall severally and not jointly indemnify and hold harmless BCC,
each director of BCC, each officer of BCC who shall sign such registration
statement, each underwriter and any person who controls BCC or such
underwriter within the meaning of the Securities Act, and BCC's accountants
and legal counsel, against all expenses, claims, losses, damages and
liabilities (or actions or proceedings in respect thereof) including any of
the foregoing incurred in settlement of any litigation, commenced or
threatened, with respect to any untrue statement of any material fact in, or
omission of any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading from such registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto, if such statement or omission was made in reliance upon
and in conformity with written information furnished to BCC or its
underwriter through an instrument duly executed by or on behalf of the
Shareholder specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus or amendment or
supplement. In no event shall the liability of any Shareholder hereunder be
greater than the gross proceeds received by such Shareholder upon the sale of
his or its Shares.
(b) BCC will indemnify each Shareholder, his or its legal counsel and
accountants and each person controlling the Shareholder within the meaning of
Section 15 of the Securities Act, and each officer and director of each
Shareholder with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any,
and each person who controls any underwriter within the meaning of Section 15
of the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions or proceedings in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or
threatened,
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<PAGE>
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any registration statement, prospectus,
offering circular or other document, or any amendment or supplement thereof,
incident to any such registration, qualification or compliance, or arising
out of or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, provided that BCC will not be liable to indemnify the
Shareholder or underwriter in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to BCC by
an instrument duly executed by or on behalf of the Shareholder or underwriter
and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this SECTION 1.5
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld). Without limiting the generality of the
foregoing, the Indemnified Party may withhold its consent to any such counsel
who also acts as counsel to the Indemnifying Party (with respect to such
claim or otherwise) if the Indemnified Party reasonably believes that there
exists a conflict of interest between the Indemnified Party and the
Indemnifying Party, with respect to such claim or litigation. In such event,
the Indemnifying Party shall bear the expense of another counsel who shall
represent the Indemnified Party and any other persons or entities who have
indemnification rights from the Indemnifying Party hereunder, with respect to
such claim or litigation, and shall be selected as provided in the first
sentence of this SECTION 1.5(c). The Indemnified Party may participate in
such defense at such party's expense (except to the extent that the
Indemnifying Party is required to pay the expense of such counsel pursuant to
this SECTION 1.5(c)), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless such
failure is prejudicial to the Indemnifying Party in defending such claim or
litigation. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability with respect to such
claim or litigation.
(d) If the indemnification provided for in this SECTION 1.5 is held
by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred
to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim, damage
or expense in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and
of the Indemnified Party shall be determined by reference to, among
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<PAGE>
other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied
by or on behalf of the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement, if signed by the Shareholders, shall control.
1.6 COMPLIANCE WITH RULE 144. At the request of any Shareholder who
proposes to sell securities in compliance with Rule 144, BCC shall, to the
extent necessary to enable such Shareholder to comply with such Rule 144, (y)
forthwith furnish to such Shareholder a written statement of compliance with
the filing requirements of the SEC as set forth in Rule 144 and (z) use
reasonable efforts to make available to the public and such Shareholder such
information as will enable the Shareholders to make sales pursuant to Rule
144.
1.7 ASSIGNABILITY OF REGISTRATION RIGHTS. The rights set forth in
this Agreement shall accrue to each subsequent holder of at least 5,000
Shares who shall have executed a written consent agreeing to be bound by the
terms and conditions of this Agreement as a party to this Agreement.
2. NATURE OF STATEMENTS AND SURVIVAL OF INDEMNIFICATIONS,
GUARANTEES, REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. All
indemnifications, representations and warranties made by any Shareholder
hereunder or pursuant hereto or in connection with the transactions
contemplated hereby shall survive the Closing regardless of any investigation
at any time made by or on behalf of BCC. The covenants and agreements made
by the Shareholders hereunder or pursuant hereto or in connection with the
transactions contemplated hereby shall continue until all obligations with
respect thereto shall have been performed or satisfied or shall have been
terminated in accordance with their terms.
3. GENERAL PROVISIONS.
3.1 GOVERNING LAW; INTERPRETATION; SECTION HEADINGS. This Agreement
shall be governed by and construed and enforced in accordance with the laws
of the State of Texas without regard to conflict-of-laws rules as applied in
Texas. The section headings contained herein are for purposes of convenience
only and shall not be deemed to constitute a part of this Agreement or to
affect the meaning or interpretation of this Agreement in any way.
3.2 SEVERABILITY. Should any provision of this Agreement be held
unenforceable or invalid under the laws of the United States of America or
the State of Texas, or under any other applicable laws of any other
jurisdiction, then the parties hereto agree that such provision shall be
deemed modified for purposes of performance of this Agreement in such
jurisdiction to the extent necessary to render it lawful and enforceable, or
if such a modification is not possible without materially altering the
intention of the parties hereto, then such provision shall be severed
herefrom for purposes of performance of this Agreement in such jurisdiction.
The validity of the remaining
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<PAGE>
provisions of this Agreement shall not be affected by any such modification
or severance, except that if any severance materially alters the intentions
of the parties hereto as expressed herein (a modification being permitted
only if there is no material alteration), then the parties hereto shall use
commercially reasonable efforts to agree to appropriate equitable amendments
to this Agreement in light of such severance.
3.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and understandings
related thereto.
3.4 BINDING EFFECT. All the terms, provisions, covenants and
conditions of this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective heirs,
executors, administrators, representatives, successors and assigns.
3.5 AMENDMENT; WAIVER. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, provisions, representations,
warranties, covenants or conditions hereof may be waived, only by a written
instrument executed by all parties hereto, or, in the case of a waiver, by
the party waiving compliance. The failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect the
right to enforce the same. No waiver by any party of any condition contained
in this Agreement, or of the breach of any term, provision, representation,
warranty or covenant contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach, or as a waiver of any other condition
or of the breach of any other term, provision, representation, warranty or
covenant.
3.6 GENDER; NUMBERS. All references in this Agreement to the
masculine, feminine or neuter genders shall, where appropriate, be deemed to
include all other genders. All plurals used in this Agreement shall, where
appropriate, be deemed to be singular, and VICE VERSA.
3.7 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This
Agreement shall be binding when one or more counterparts hereof, individually
or taken together, shall bear the signatures of the parties reflected hereon
as signatories.
3.8 TELECOPY EXECUTION AND DELIVERY. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all parties
hereto agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
3.9 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this
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Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word "including" shall mean
including without limitation.
3.10 REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
3.11 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be personally
delivered or sent by reliable overnight express delivery (such as Federal
Express). Any such notice, request, consent or other communication shall be
deemed delivered at such time as it is personally delivered on a business
day, or on the date of actual, prepaid delivery on a business day by a
reliable overnight express delivery service, as the case may be. The address
for all notices, requests, consents and other communications hereunder to be
delivered or sent to any Shareholder shall be to such Shareholder's address
as set forth on the records of the Company. The address for all notices,
requests, consents and other communications hereunder to be delivered or sent
to any Shareholder shall be to such Shareholder's address as set forth in the
Company's records. The address for all notices, requests, consents and other
communications hereunder to the Company shall be delivered or sent to the
following:
Billing Concepts Corp.
7411 John Smith Drive, Suite 200
San Antonio, Texas 78229-6037
Telephone (210) 949-7022
Facsimile (210) 949-7024
Attention: W. Audie Long, Esq.
Senior Vice President, General
Counsel and Corporate Secretary
With copy to (which shall not constitute notice):
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Telephone (210) 224-5575
Facsimile (512) 270-7205
Attention: Phillip M. Renfro, Esq.
Or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement in multiple original counterparts as of the day and year
first above written.
SHAREHOLDERS:
FIDATA EQUITY PARTNERS, L.P.
By: First Advisors, Inc.,
General Partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
and
By: Troy Assets Advisors,
General Partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SOUTHWEST BUSINESS CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------------------------------------
Mel Ray, Individually
----------------------------------------
William Hammock, Individually
BILLING CONCEPTS CORP.
By:
-------------------------------------
Parris H. Holmes, Jr.
Chairman of the Board and
Chief Executive Officer
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Exhibit 23.2
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 17,
1999, included in the Billing Concepts Corp. Form 10-K for the year ended
September 30, 1999, and to all references to our firm included in this
Registration Statement.
/s/ Arthur Anderson LLP
San Antonio, Texas
January 26, 2000
