SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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BILLSERV.COM, INC.
(Exact name of Registrant as specified in its charter)
NEVADA 98-0190072
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
MARSHALL MILLARD LORI TURNER
SECRETARY, VICE PRESIDENT AND GENERAL TREASURER, VICE PRESIDENT AND CHIEF
COUNSEL FINANCIAL OFFICER
14607 SAN PEDRO AVE., SUITE 100, SAN ANTONIO, TEXAS 78232
(Address of principal executive office)
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BILLSERV.COM, INC.
1999 NON-EMPLOYEE DIRECTOR PLAN
(Full title of the Plan)
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TIMOTHY N. TUGGEY
MORRIS E. WHITE III
ARTER & HADDEN LLP
700 N. ST. MARY'S ST. #800
SAN ANTONIO, TEXAS 78205
210/354-4300
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
MAXIMUM MAXIMUM
TITLE OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE(2) PRICE(2) FEE
- --------------------------------------------------------------------------------
Common Stock, Par
Value $.001 500,000 shares(1) $9.16 $2,485,000 $1,209.12
================================================================================
(1) Pursuant to Rule 416 under the Securities Act, additional shares of the
common stock of the Company issued or which become issuable in order to
prevent dilution resulting from any future stock split, stock dividend or
similar transaction that are being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act based upon the
average of the high and low sales prices of the Registrant's Common Stock on
the NASD OTC Bulletin Board on February 15, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and reports filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) Amendment No. 1 to the Form SB-2 Registration Statement, SEC File
No. 333-93799, filed on January 14, 2000 which became effective on
January 18, 2000.
(b) Annual Report of the Registrant on Form 10-K for the year ended
December 31, 1999, Commission File No. 000-30152.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement (Commission File No. 001-15093) filed under
Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such
description.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nevada law generally sets forth the powers of the Company to indemnify
officers, directors, employees and agents. The Articles of Incorporation for the
Company provide as follows:
No director or officer shall have any personal liability to the
corporation or its stockholders for the damages for breach of
fiduciary duty as a director or officer, except that this Article
shall not eliminate or limit the liability of a director or officer
for (i) acts or omissions that involve intentional misconduct, fraud
or a knowing violation of the law, or (ii) the payment of dividends
in violation of Nevada Revised Statutes.
Except to the extent herein above set forth, there is no charter
provision, bylaw, contract, arrangement or statute pursuant to which any
director or officer of the Company is indemnified in any manner against any
liability which he may incur in his capacity as such. The Company also maintains
a standard director and officer liability policy to fund the Company's
obligations as stated herein above.
ITEM 8. EXHIBITS
Except as noted below, the following Exhibits are filed herewith and made
a part hereof:
EXHIBIT DESCRIPTION OF DOCUMENT
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form SB-2, SEC File No.
333-93799).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 1
to the Company's Registration Statement on Form SB-2, SEC File
No. 333-93799).
4.3 billserv.com, Inc. 1999 Non-employee Director Plan.
5.1 Opinion of Arter & Hadden LLP (filed herewith).
23.1 Consent of Arter & Hadden LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors
(filed herewith).
24.1 Power of Attorney
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ITEM 9. 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflect in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "calculation of Registration Fee" table in the
effective Registration Statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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) For the purpose of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Antonio, State of Texas, on this 14th day of
February, 2000.
BILLSERV.COM, INC.
By: /s/ LOUIS A. HOCH
Louis A. Hoch
President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated as of the dates indicated.
Signatures Titles Date
/s/ MICHAEL R. LONG Chief Executive Officer
Michael R. Long* and Director February 14, 2000
/s/ LOUIS A. HOCH President, Director and
Louis A. Hoch* Chief Operating Officer February 14, 2000
/s/ DAVID S. JONES Executive Vice President
David S. Jones* and Director February 14, 2000
/s/ LORI TURNER Treasurer, Vice President
Lori Turner* and Chief Financial Officer February 14, 2000
/s/ MARSHALL MILLARD Secretary, Vice President
Marshall Millard and General Counsel February 14, 2000
/s/ E. SCOTT CRIST Director
E. Scott Crist* February 14, 2000
/s/ ROGER R. HEMMINGHAUS Director
Roger R. Hemminghaus* February 14, 2000
Marshall N. Millard, the undersigned attorney-in-fact, by signing his/her name
below, does hereby sign this Registration Statement on behalf of the directors
and officers of billserv.com, Inc. indicated above by asterisk (constituting a
majority of the directors) pursuant to a power of attorney executed by such
persons and filed with the Securities and Exchange Commission contemporaneously
herewith.
By: /s/______________________________
Marshall N. Millard, as attorney-in-fact
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EXHIBIT INDEX
Exhibit Number Exhibit
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form SB-2, SEC File No.
333-93799).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 1
to the Company's Registration Statement on Form SB-2, SEC File
No. 333-93799).
4.3 billserv.com, Inc. 1999 Non-employee Director Plan.
5.1 Opinion of Arter & Hadden LLP.
23.1 Consent of Arter & Hadden LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney.
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EXHIBIT 4.3
BILLSERV.COM INC.
1999 NON-EMPLOYEE DIRECTOR PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests of
billserv.com, a Nevada corporation (the "Company"), by providing an additional
incentive to attract and retain qualified and competent directors, upon whose
efforts and judgment the success of the Company is largely dependent, through
the encouragement of stock ownership in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the meaning
indicated:
(a) "Board" shall mean the Board of Directors of billserv.com.
(b) "Committee" shall mean the committee, if any, appointed by the
Board pursuant to Section 12 hereof.
(c) "Date of Grant" shall mean the date on which an Option is
granted to an Eligible Person pursuant to Section 4 or Section 5 hereof.
(d) "Director" shall mean a member of the Board or a member of the
board of directors of a Parent on the date of adoption of the Plan.
(e) "Eligible Person(s) " shall mean those persons who are Directors
of the Company or a Parent and who are not employees of the Company or a
Subsidiary.
(f) "Fair Market Value" of a Share on any date of reference shall be
the closing price on the business day immediately preceding such date. For this
purpose, the closing price of the Shares on any business day shall be (i) if the
Shares are listed or admitted for trading on any United States national
securities exchange, the last reported sales price of Shares on such exchange,
as reported in any newspaper of general circulation, (ii) if actual transactions
in the Shares are included in the Nasdaq National Market or are reported on a
consolidated transaction reporting system, the closing price of the Shares on
such system, (iii) if Shares are otherwise quoted on the Nasdaq system, or any
similar system of automated dissemination of quotations of securities prices in
common use, the mean between the closing high bid and low asked quotations for
such day of Shares on such system, and (iv) if none of clause (i), (ii) or (iii)
is applicable, the mean between the high bid and low asked quotations for Shares
as reported by the National Daily Quotation Service if at least two securities
dealers have inserted both bid and asked quotations for Shares on at least five
(5) of the ten (10) preceding days.
(g) "Internal Revenue Code" or "Code" shall mean the Internal
Revenue Code of 1986, as it now exists or may be amended from time to time.
(h) "Nonqualified Stock Option" shall mean an option that is not an
incentive stock option as defined in Section 422 of the Internal Revenue Code.
(i) "Option" shall mean any option granted under Section 4 or 5 of
this Plan.
(j) "Optionee" shall mean a person to whom an Option is granted
under this Plan or any successor to the rights of such person under this Plan by
reason of the death of such person.
(k) "Parent" shall mean a parent corporation of the Company as
defined in Section 424(c) of the Code, if any.
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(l) "Payment Date" shall have the meaning set forth in Section 2(a).
(m) "Plan" shall mean this 1999 Non-Employee Director Plan of
billserv.com.
(n) "Prior Plan" shall mean any plan which may have been in place
prior to the execution of this plan.
(o) "Share(s)" shall mean a share or shares of the common stock,
($0.001 per value, of the Company.
(p) "Subsidiary" shall mean a subsidiary corporation of the Company
as defined in Section 424(f) of the Code.
3. SHARES AND OPTIONS. The maximum number of Shares to be issued pursuant
to Options under this Plan shall be Five Hundred Thousand (500,000) Shares.
Shares issued pursuant to Options granted under this Plan may be issued from
Shares held in the Company's treasury or from authorized and unissued Shares. If
any Option granted under this Plan shall terminate, expire, or be canceled or
surrendered as to any Shares, new Options may thereafter be granted covering
such Shares. Any Option granted hereunder shall be a Nonqualified Stock Option.
4. AUTOMATIC GRANT OF OPTIONS. (a) Options shall automatically be granted
to Directors as provided in this Section 4. Each Option shall be evidenced by an
option agreement (an "Option Agreement") and shall contain such terms as are not
inconsistent with this Plan or any applicable law. Any person who files with the
Committee, in a form satisfactory to the Committee, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
(b) The Options automatically granted to Directors under this Plan
shall be in addition to regular director's fees and other benefits with respect
to the Director's position with the Company or its Subsidiaries. Neither the
Plan nor any Option granted under the Plan shall confer upon any person any
right to continue to serve as a Director.
(c) No Options shall otherwise be granted hereunder, and neither the
Board nor the Committee, if any, shall have any discretion with respect to the
grant of Options within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or any successor rule.
5. ELECTION WITH RESPECT TO ANNUAL DIRECTOR FEE. Each Eligible Person may
elect to receive the Annual Director Fee in cash or in an Option, or partly in
cash and partly in an Option. Any election to receive an Option shall be in
writing and must be made not later than June 15, 1999, even if prior to the
effective date of the Plan, for Options to be granted for the Payment Date in
1999, and thereafter such election shall be made not later than December 31 of
each year with respect to the Annual Director Fee to be made on the Payment Date
in the subsequent year. An election may not be revoked or changed after it is
made. For purposes of this election and subject to Section 9, in lieu of receipt
of the Annual Director Fee in cash, as elected by the Eligible Person, each $2
of cash compensation shall be convened into an Option, granted as of the Payment
Date, to purchase one (1) share of Common Stock. If an Eligible Person so elects
to receive an Option, the Company shall promptly deliver to such Eligible Person
an Option Agreement. To be eligible to receive the Annual Director Fee, for any
year, the Eligible Person must be a Director on the Payment Date for that Annual
Director Fee. Any person who files with the Committee, in a form satisfactory to
the Committee, a written waiver of eligibility to receive any Option under this
Plan shall not be eligible to receive any Option under this Plan for the
duration of such waiver.
6. OPTION PRICE. (a) The Option price per Share of any Option
granted pursuant to this Plan shall be one hundred percent (100%) of the Fair
Market Value per Share on the Date of Grant.
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7. EXERCISE OF OPTIONS. Options may be exercised at any time after the
date on which the Options, or any portion thereof, are vested until the Option
expires pursuant to Section 8; provided, however, that no Option shall be
exercisable prior to six (6) months from the Date of Grant. An Option shall be
deemed exercised when (i) the Company has received written notice of such
exercise in accordance with the terms of the Option Agreement, (ii) full payment
of the aggregate Option price of the Shares as to which the Option is exercised
has been made and (iii) arrangements that are satisfactory to the Committee in
its sole discretion have been made for the Optionee's payment to the Company of
the amount, if any, that the Committee determines to be necessary for the
Company to withhold in accordance with applicable federal or state income tax
withholding requirements. Pursuant to procedures approved by the Committee, tax
withholding requirements, at the option of an Optionee, may be met by
withholding Shares otherwise deliverable to the Optionee upon the exercise of an
Option. Unless further limited by the Committee in any Option Agreement, the
Option price of any Shares purchased shall be paid solely in cash by certified
or cashier's check, by money order, with Shares (but with Shares only if
permitted by the Option Agreement or otherwise permitted by the Committee in its
sole discretion at the time of exercise) or by a combination of the above;
provided, however, that the Committee in its sole discretion may accept a
personal check in full or partial payment of any Shares. If the exercise price
is paid in whole or in part with Shares, the value of the Shares surrendered
shall be their Fair Market Value on the date the Shares are received by the
Company.
8. TERMINATION OF OPTION PERIOD. The unexercised portion of an Option
shall automatically and without notice terminate and become null and void at the
time of the earliest to occur of the following:
(a) one (1) year after the date that an Optionee ceases to be a
Director (including for this purpose a Director of a Parent) by reason of death
of the Optionee or (2) six (6) months after the Optionee shall die if that shall
occur during the thirty-day period described in Subsection 8(a); or
(b) the tenth (10th) anniversary of the Date of Grant of the Option.
9. ADJUSTMENT OF SHARES. (a) If at any time while this Plan is in effect
or unexercised Options are outstanding, there shall be any increase or decrease
in the number of issued and outstanding Shares through the declaration of a
stock dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of
Shares then subject to being optioned under this Plan, so that the same
proportion of the Company's issued and outstanding Shares shall continue
to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares
and the exercise price per Share thereof then subject to any outstanding
Option, so that the same proportion of the Company's issued and
outstanding Shares shall remain subject to purchase at the same aggregate
exercise price.
In addition, the Committee shall make such adjustments in the Option price
and the number of shares covered by outstanding Options that are required to
prevent dilution or enlargement of the rights of the holders of such Options
that would otherwise result from any reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation, issuance of
rights, spin-off or any other change in capital structure of the Company.
(b) Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
a direct sale or upon the exercise of rights or warrants to subscribe therefor,
or upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of or exercise price of Shares
then subject to outstanding Options granted under this Plan.
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(c) Without limiting the generality of the foregoing, the existence
of outstanding Options granted under this Plan shall not affect in any manner
the right or power of the Company to make, authorize or consummate (i) any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
10. TRANSFERABILITY OF OPTIONS. Each Option Agreement shall provide that
such Option shall not be transferable by the Optionee other than by will or the
laws of descent and distribution or pursuant to a qualified domestic relations
order and that, so long as an Optionee lives, only such Optionee or his guardian
or legal representative shall have the right to exercise the related Option
11. ISSUANCE OF SHARES. No person shall be, or have any of the rights or
privileges of, a stockholder of the Company with respect to any of the Shares
subject to an Option unless and until certificates representing such Shares
shall have been issued and delivered to such person. As a condition of any
transfer of the certificate for Shares, the Committee may obtain such agreements
or undertakings, if any, as it may deem necessary or advisable to assure
compliance with any provision of this Plan, any Option Agreement or any law or
regulation, including, but not limited to. the following:
(i) A representation, warranty or agreement by the Optionee to the
Company, at the time any Option is exercised, that he or she is acquiring
the Shares to be issued to him or her for investment and not with a view
to, or for sale in connection with, the distribution of any such Shares;
and
(ii) A representation, warranty or agreement to be bound by any
legends that are, in the opinion of the Committee, necessary or
appropriate to comply with the provisions of any securities law deemed by
the Committee to be applicable to the issuance of the Shares and are
endorsed upon the Share certificates.
Share certificates issued to an Optionee who is a party to any stockholder
agreement or a similar agreement shall bear the legends contained in such
agreements.
12. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by a
stock option committee (the "Committee") consisting of not fewer than two (2)
members of the Board; provided, however, that if no Committee is appointed, the
Board shall administer this Plan and in such case all references to the
Committee shall be deemed to be references to the Board. The Committee shall
have all of the powers of the Board with respect to this Plan. Any member of the
Committee may be removed at any time, with or without cause, by resolution of
the Board, and any vacancy occurring in the membership of the Committee may be
filled by appointment by the Board.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of this Plan. The determinations and
the interpretation and construction of any provision of this Plan by the
Committee shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee shall
be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the written approval of a majority of the
members of the Committee.
(d) This Plan is intended and has been drafted to comply with Rule
16b-3, as amended, under the Securities Exchange Act of 1934, as amended. If any
provision of this Plan does not comply with Rule 16b-3, as amended, this Plan
shall be automatically amended to comply with Rule 16b-3, as amended.
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(e) This Plan shall not be amended more than once every six (6)
months, other than to comport with applicable changes to the Internal Revenue
Code, the Employee Retirement Income Security Act of 1974, as amended, or the
rules thereunder.
13. INTERPRETATION. (a) If any provision of this Plan is held invalid for
any reason, such holding shall not affect the remaining provisions hereof, but
instead this Plan shall be construed and enforced as if such provision never
been included in this Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEVADA
EXCEPT TO THE EXTENT SUPERSEDED BY THE LAWS OF THE UNITED STATES OR THE PROPERTY
LAWS OF ANY STATE.
(c) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter gender shall
be a reference to such other gender as is appropriate.
14. SECTION 83(B) ELECTION. If as a result of exercising an Option an
Optionee receives Shares that are subject to a "substantial risk of forfeiture"
and are not "transferable" as those terms are defined for purposes of Section
83(a) of the Code, then such Optionee may elect under Section 83(b) of the Code
to include in his gross income, for his taxable year in which the Shares are
transferred to such Optionee, the excess of the Fair Market Value of such Shares
at the time of transfer (determined without regard to any restriction other than
one which by its terms will never lapse), over the amount paid for the Shares.
If the Optionee makes the Section 83(b) election described above, the Optionee
shall (i) make such election in a manner that is satisfactory to the Committee,
(ii) provide the Company with a copy of such election, (iii) agree to promptly
notify the Company if any Internal Revenue Service or state tax agent, on audit
or otherwise, questions the validity or correctness of such election or of the
amount of income reportable on account of such election, and (iv) agree to such
withholding as the Committee may reasonably require in its sole and absolute
discretion.
15. EFFECTIVE DATE AND TERMINATION DATE. This Plan is adopted as of
January 4, 1999, but shall only become effective upon effectiveness of the
Company's Registration Statement filed under the Securities Exchange Act of
1934, as amended. The effective date of any amendment to the Plan is the date on
which the Board adopted such amendment; provided, however, if this Plan is not
approved by the stockholders of the Company within twelve (12) months after the
effective date, then, in such event, this Plan and all Options granted pursuant
to this Plan shall be null and void. This Plan shall terminate on July 10, 2009,
and any Option outstanding on such date will remain outstanding until it has
either expired or has been exercised.
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[ARTER & HADDEN LLP ATTORNEYS AT LAW LETTERHEAD]
EXHIBIT 5.1
February 14, 2000
billserv.com, Inc.
14607 San Pedro Avenue, Suite 100
San Antonio, Texas 78232
RE: billserv.com, Inc. 1999 Non-employee Director Plan (the "Plan")
Form S-8 Registration Statement No. (the "Registration Statement")
Ladies and Gentlemen:
We have been advised that on or about February 14, 2000, billserv.com,
Inc., a Nevada corporation (the "Company"), expects to file under the Securities
Act of 1933, as amended (the "Act") with the Securities and Exchange Commission
(the "Commission"), a Registration Statement on Form S-8 (the "Registration
Statement"). Such Registration Statement relates to the Offering ("Offering"),
from time to time of 500,000 shares of common stock, par value $.001 each, of
the Company, which may be issued pursuant to the Plan. This firm has acted as
counsel to you in connection with the preparation and filing of the Registration
Statement and you have requested our opinion with respect to certain legal
aspects of the Offering of the Offered Securities.
In rendering our opinion, we have participated in the preparation of the
Registration Statement and have examined and relied upon the original or copies,
certified to our satisfaction, of such documents and instruments of the Company
as we have deemed necessary and have made such other investigations as we have
deemed appropriate in order to express the opinions set forth herein. In our
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
reproduction copies. In addition, we have assumed and have not verified the
accuracy of factual matters of each document we have reviewed.
As to certain questions of fact material to this opinion, we have relied,
to the extent we deem reasonably appropriate, upon the representations or
certificates of officers or directors of the Company.
Based upon the following examination and subject to the comment and
assumptions as noted below, we are of the opinion that shares of common stock,
par value $.001 each, of the Company which may be issued pursuant to the Plan
will be, when so issued or transferred and delivered in accordance with the
Plan, duly authorized, validly issued, fully paid and non-assessable.
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billserv.com, Inc.
February 14, 2000
Page Two
Insofar as the foregoing opinions relate to the legality, validity,
binding effect or enforceability of any agreement or obligations of the company,
(i) we have assumed that each party to such agreement or obligation has
satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it; (ii) such
opinions are subject to applicable bankruptcy, insolvency, reorganization,
liquidation, receivership, fraudulent conveyance or similar laws, now or
hereafter in effect, relating to creditors' rights generally, and (iii) such
opinions are subject to the general principals of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding at law or in equity).
This opinion is limited in all respect to the laws of the State of Nevada.
We do not purport to be admitted to practice in the State of Nevada, and for the
purposes of rendering the opinions set in this letter we have assumed that the
applicable laws of the State of Nevada are the same as the laws of the State of
Texas.
We bring to your attention the fact that this legal opinion is an
expression of professional judgment and not a guaranty of results. This opinion
is given as of the date hereof, and we assume no obligation to update or
supplement such opinion to reflect any facts or circumstances that may hereafter
come to our attention or any changes in laws or judicial decisions that may
hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we have
come within the category of persons whose consent is required by the Section 7
of the Act or the rules and regulations of the Commission thereunder.
Respectfully submitted,
ARTER & HADDEN LLP
12
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to billserv.com, Inc. 1999 Non-employee Director Plan, of our
report dated January 27, 2000, appearing in Annual Report Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934, File No. 000-30152 (Form 10-K)
filed with the Securities and Exchange Commission on February 11, 2000.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Antonio, Texas
February 14, 2000
13
EXHIBIT 24.1
BILLSERV.COM, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That each person whose signature appears
below has made, constituted and appointed, and by this instrument does make,
constitute and appoint Marshall N. Millard, Timothy N. Tuggey or Morris E. White
III, his or her true and lawful attorney, with full power of substitution and
resubstitution, to affix for him or her and in his or her name, place and stead,
as attorney-in-fact, his or her signature as director (including as a member of
any committee of the board of directors) or officer, or both, of billserv.com,
Inc., a Nevada corporation (the "Company"), to a Form S-8 Registration Statement
("Registration Statement") and any other form that may be used from time to
time, with respect to the issuance and sale of its Common Stock and other
securities pursuant to the billserv.com, Inc. 1999 Non-Employee Director Plan
(the "Plan") and to any and all amendments, post-effective amendments and
exhibits to such Registration Statement, and to any and all applications and
other documents pertaining thereto, giving and granting to each such
attorney-in-fact full power and authority to do and perform every act and thing
whatsoever necessary to be done in the premises, as fully as they might or could
do if personally present, and hereby ratifying and confirming all that each of
such attorney-in-fact or any such substitute shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed this 14th day
of February, 2000.
/s/ MICHAEL R. LONG
Michael R. Long
/s/ LOUIS A. HOCH
Louis A. Hoch
/s/ DAVID S. JONES
David S. Jones
/s/ LORI TURNER
Lori Turner
/s/ MARSHALL MILLARD
Marshall Millard
/s/ E. SCOTT CRIST
E. Scott Crist
/s/ ROGER R. HEMMINGHAUS
Roger R. Hemminghaus
14
