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 TREASURER, VICE PRESIDENT AND
AND GENERAL COUNSEL CHIEF FINANCIAL OFFICER
14607 SAN PEDRO AVE., SUITE 100, SAN ANTONIO, TEXAS 78232
(Address of principal executive office)
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BILLSERV.COM, INC.
EMPLOYEE STOCK PURCHASE 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
<TABLE>
<CAPTION>
================================================================================================
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (3) PRICE (3) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par 1,000,000 shares
Value $.001 (1)(2) $9.16 $9,160,000 $2,418.24
================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
(2) 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.
(3) 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.
<PAGE>
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, 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, file No. 000-30152.
(c) The description of the Registrant's Common Stock contained in
the Registration Statement (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. Employee Stock Purchase 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 Chief
Louis A. Hoch* 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
Roger R. Hemminghaus* Director 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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Pursuant to the requirements of the Securities Act of 1933, the
administrators of the Plan have 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 February 14, 2000.
billserv.com, Inc. EMPLOYEE STOCK
PURCHASE PLAN
By: The Employee Stock Purchase Plan
Committee of billserve.com, Inc.
By: ________________________________
E. Scott Crist, Committee member
By: ________________________________
Roger Hemminhaus, Committee member
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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. Employee Stock Purchase 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.
6
EXHIBIT 4.3
BILLSERV.COM INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The billserv.com Inc. Employee Stock Purchase Plan (the "plan") is
designed to encourage employees of billserv.com Inc. ("billserv.com")
and its participating Subsidiaries (collectively, the "Company"), where
permitted by applicable laws and regulations, to acquire an equity
interest in billserv.com through the purchase of shares of the common
stock, par value $0.001 per share, of billserv.com ("Common Stock").
These purchases are intended to establish a closer identification of
employee, Company and stockholder interests and to provide employees
with a direct means of participating in the Company's growth and
earnings. It is anticipated that Plan participation will motivate
employees to remain in the employ of the Company and give greater
efforts on behalf of the Company. This Plan is intended to constitute an
"employee stock purchase plan" within the meaning of Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. DEFINITIONS
The following words or terms, when used herein, shall have the following
respective meanings:
"Closing Market Price" refers to the reported closing sales price for
shares of the Common Stock as so reported in The Wall Street Journal for
that day.
"Committee" shall refer to the committee appointed by the billserv.com
Board of Directors to administer this Plan.
"Designated Broker" refers to the securities brokerage company that will
assist billserv.com in administering the Plan and which may be
designated from time to time by the Committee.
"Effective Date" means July 1, 1999, the first Enrollment Date under the
Plan.
"Employee" refers to all full-time and part-time employees, employed by
billserv.com or a Subsidiary on a continuous basis.
"Employee Contribution Amounts" refers to the amounts contributed by
employees via payroll deduction.
"Enrollment Date" refers to July 1, 1999, the first Enrollment Date
under the Plan, the first day of the initial six-month Participation
Period ending December 31, 1999, and after that latter date, refers to
January 1 and July 1, the first day of the succeeding six-month
Participation Periods which continue thereafter.
"Enrollment Period" refers to the designated Period that precedes each
Enrollment Date during which employees eligible to participate are
Provided the opportunity to enroll in the Plan. The Enrollment Period is
approximately two weeks in duration and, generally, will expire
approximately 10 to 14 days prior to the Enrollment Date. The exact
dates for each Enrollment Period will be communicated to all eligible
employees prior to the Enrollment Period.
"Exercise Date" refers to the last stock Wading day in a Participation
Period.
"Fair Market Value" refers to the Closing Market Price on either the
first or last stock trading day in the Participation Period as
determined in accordance with Section 9.
"Participant" refers to any employee meeting the eligibility
requirements specified in Section 5 who has enrolled in the Plan.
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"Participation Period" refers to the six-month period from the Effective
Date through December 31, 1999, and after that latter date refers to
periods of January 1 through June 30 and July 1 through December 31,
during which periods payroll deductions will be made to purchase stock
under the Plan, or such other period as the Committee may at any time
prescribe.
"Plan" shall refer to this billserv.com Employee Stock Purchase Plan.
"Subsidiary" refers to any present or future corporation that is a
"subsidiary corporation" of the Company within the meaning of Section
424 of the Code.
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Employee Stock Purchase Plan
Committee (the "Committee") appointed by the Board of Directors of
billserv.com (the "Board"), which Committee shall consist of at least
two (2) persons, who need not be members of the Board. The members of
the Committee shall supervise the administration and enforcement of the
Plan according to its terms and provisions and shall have all powers
necessary to accomplish these purposes and discharge its duties
hereunder including, but not limited to, the power to interpret the
Plan, to make factual determinations and resolve issues of eligibility,
stock price determination, or any other issues arising under the Plan or
as a result of participation of Participants in the Plan.
The Committee may act by majority decision of its members at a regular
or special meeting of the Committee or by decision reduced to writing
and signed by all members of the Committee without holding a formal
meeting. Vacancies in the membership of the Committee arising from
death, resignation or other inability to serve shall be filled by
appointment by the Board as soon as possible. All decisions by the
Committee shall be final and conclusive and binding upon Participants
and the Company.
4. NATURE AND NUMBER OF SHARES
The Common Stock subject to issuance under the terms of the Plan shall
be shares of billserv.com's authorized but unissued shares. The
aggregate number of shares that may be issued under the Plan shall not
exceed one million (1,000,000) shares of Common Stock. If the total
number of shares that Employees elect to purchase under the Plan exceeds
the shares available, the Committee will allot shares among Employees.
In the event of any reorganization, recapitalization, stock split,
reverse stock split, stock dividend, spin-off, combination of shares,
merger, consolidation, offering of rights or other similar change in the
capital structure of billserv.com, the Committee may make such
adjustment, if any, as it deems appropriate in the number, kind and
purchase price of the shares available for purchase under the Plan, in
the maximum number of shares that may be issued under the Plan and in
the Participation Periods, subject to the approval of the Board and in
accordance with Section 20 of the Plan.
If billserv.com is acquired in a transaction whereby it is not the
surviving entity or all or substantially all of billserv.com's assets
are acquired, the Committee shall determine a Plan termination date.
This date shall precede the expected effective date of such acquisition
by not more than sixty (60) days. Employee Contribution Amounts
accumulated during the period between the most recent Enrollment Date
and Plan termination date shall be used to purchase shares for
Participants in the manner provided in Section 9 utilizing the Plan
termination date as the Exercise Date for determining the purchase price
for shares of Common Stock. In the event the Plan is terminated and the
acquisition transaction is not consummated, the Plan may be reactivated
on a date determined by the Committee.
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<PAGE>
5. ELIGIBILITY REQUIREMENTS
Each Employee, except as described in the next following paragraph,
shall become eligible to participate in the Plan in accordance with this
Section 5 on the first Enrollment Date following employment by the
Company. Participation in the Plan is voluntary.
The following Employees are not eligible to Participate in the Plan:
(i) Employees who have not completed at least three (3) months of
continuous service with the Company as of the Enrollment Date;
and
(ii) Employees who would, immediately upon enrollment in the Plan,
own directly or indirectly, or hold options or rights to
acquire, an aggregate of five percent (5%) or more of the total
combined voting power or value of all outstanding shares of all
classes of billserv.com or any Subsidiary.
Employees of any corporation that may become a Subsidiary after the
Effective Date shall automatically be deemed to be eligible for
participation under this Plan effective as of the Enrollment Date
following the date (1) the corporation became a Subsidiary and (2) the
Employees satisfied the continuous service requirements described above.
All service with any parent corporation of billserv.com or any
subsidiary of such parent will be taken into account as continuous
service for purposes of this Section 5.
6. ENROLLMENT
Each eligible Employee of the Company as of the Effective Date will
become an eligible Employee in the Plan on the Effective Date if
immediately prior to the Effective Date he or she was eligible to
participate in a plan of a future parent or subsidiary of billserv.com.
Each other Employee of the Company who thereafter becomes eligible to
participate may enroll in the Plan on the January 1 and July 1
Enrollment Dates following the date he or she first meets the
eligibility requirements of Section 5 of the Plan. Any eligible Employee
not enrolling in the Plan when first eligible may enroll in the Plan on
the next succeeding January 1 or July 1 Enrollment Date. In order to
enroll, an eligible Employee must complete, sign and submit the
appropriate forms during the Enrollment Period to billserv.com's Human
Resources Department. Continued enrollment in subsequent periods shall
be automatic and no additional documentation is required, unless a
Participant desires to revise the Employee Contribution Amount for the
subsequent Participation Period. Employee Contribution Amounts shall
remain constant if not changed at the Employee's request during an
Enrollment Period. In order to terminate Plan participation, at any
time, or change Employee Contribution Amounts during an Enrollment
Period, the participant must complete, sign and submit the appropriate
forms to billserv.com's Human Resources Department.
7. GRANT OF RIGHT TO PURCHASE SHARES ON ENROLLMENT
Enrollment in the Plan by an Employee on an Enrollment Date will
constitute the grant by billserv.com to the Participant of the right to
purchase shares of Common Stock under the Plan. Re-enrollment or
continued enrollment by a Participant in the Plan will constitute a
grant, on the Enrollment Date on which such re-enrollment or continued
enrollment occurs, by billserv.com to the Participant of a new right to
purchase shares of Common Stock. A Participant who has not terminated
employment shall have shares of Common Stock automatically purchased for
him or her on the applicable Exercise Date. The participant shall
automatically be re-enrolled in the Plan for subsequent Participation
Periods at the same Employee Contribution Amount, unless the Participant
notifies billserv.com's Human Resources Department on the appropriate
forms that he or she elects not to re-enroll or desires to change his or
her Employee Contribution Amount. A Participant who has suspended
payroll deductions during any Participation Period must re-enroll on the
appropriate forms to participate in the Plan in any future Participation
Periods.
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Each right to purchase shares of Common Stock under the Plan during any
participation Period shall have the following terms:
(1) the right to purchase shares of Common Stock during any
Participation Period shall expire on the earlier of (A) the
completion of the purchase of shares on the Exercise Date or (B)
the date on which the Participant terminates employment;
(ii) in no event shall the right to purchase shares of Common Stock
during any Participation Period extend beyond twenty-seven (27)
months from the Enrollment Date;
(iii) payment for shares purchased shall be made only with amounts
contributed through payroll deductions;
(iv) purchase of shares shall be accomplished only in accordance with
Section 9;
(v) the price per share shall be determined as provided in Section
9;
(vi) the right to purchase shares of Common Stock (taken together
with all other such rights then outstanding under this Plan and
under all other similar stock purchase plans of billserv.com or
any Subsidiary) will in no event give the Participant the right
to purchase a number of shares of Common Stock during a
Participation Period in excess of the number of shares of Common
Stock derived by dividing 1,000,000 by the Fair Market Value of
the Common Stock on the applicable Grant Date, as defined in
Section 9, determined in accordance with Section 9; and
(vii) the right to purchase shares of Common Stock shall in all
respects be subject to the terms and conditions of the Plan, as
interpreted by the Committee from time to time.
8. METHOD OF PAYMENT
Payment of shares of Common Stock shall be made as of the applicable
Exercise Date with amounts contributed through payroll deductions
collected over the Plan's designated Participation Period, with the
first such deduction commencing with the payroll period ending after the
Enrollment Date. Each Participant will authorize such deductions from
his or her pay for each month during the Participation Period. No
changes in monthly deduction amounts are permitted subsequent to the
Enrollment Period other than ceasing ongoing payroll deductions for the
remainder of the Participation Period. Payroll deductions will be made
in equal installments on each of the first two payrolls of each month
during the Participation Period. No lump sum or prepayments are
permitted. Employees may select any monthly Employee Contribution Amount
as long as the following requirements are met:
(i) at least $10.00 is deducted each month;
(ii) amount selected is a multiple of $5.00;
(iii) total amount deducted does not exceed Employee's net pay of
their base salary; and
(iv) the aggregate of monthly deduction amounts does not exceed
$10,625.00 in any Participation Period (under this Plan and
under all other similar stock purchase plans of billserv.com or
any Subsidiary). If for any reason a Participants's
contributions to the Plan exceed $10,625.00 during any
Participation Period, such excess amounts shall be refunded to
the Participant as soon as practicable after such excess has
been determined to exist.
A Participant may suspend payroll deductions at any time during a
Participation Period by given written notice to billserv.com's Human
Resources Department on the appropriate forms, which will be processed
effective for the first payroll period that is administratively
feasible. In such case, the Participant's account balance shall still be
used to purchase Common Stock at the end of the Participation Period.
Any Participant who suspends payroll deductions during any Participation
Period cannot resume payroll deductions during such period and must
re-enroll in the Plan during a subsequent Enrollment Period in order to
participate in any future Participation Periods.
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Except in the case of termination of employment, the amount in a
Participant's account at the end of any Participation Period shall be
applied to the purchase of shares, as provided in Section 9.
9. SHARES
The right to purchase shares of Common Stock granted by the Company
under the Plan is for the term of a Participation Period. The price to
be paid for the Common Stock to be purchased at the expiration of such
Participation Period shall be determined as the lower of. (a) 85 % of
the Closing Market Price on the first trading day of the Participation
Period (Grant Date) or (b) 85% of the Closing Market Price on the last
trading day in the Participation Period (Exercise Date). These dates
constitute the date of grant and the date of exercise for valuation
purposes under Section 423 of the Code.
The number of shares of Common Stock, including fractional shares,
purchased on behalf of a Participant shall be recorded in the Designated
Broker stock trading account established for each Participant as soon as
administratively feasible, but no later than five (5) business days
following the last business day of the preceding Participation Period.
The number of shares purchased shall be computed by dividing the
aggregate Employee Contribution Amount by the price for the Common Stock
determined in the manner described in the preceding paragraph.
Participants shall be treated as the record owners of the shares, with
all rights of a stockholder, effective as of the date the shares are
posted to the Participant's stock trading account. Any fees associated
with maintaining these stock trading accounts shall be the obligation of
the Company.
10. WITHDRAWAL OF SHARES
The record of shares of Common Stock purchased shall be maintained in an
individual stock trading account established at the Designated Broker on
behalf of the Participant until the shares are either withdrawn or sold.
A Participant may elect to withdraw all shares held in his or her
account at any time (without withdrawing from the Plan) by giving notice
to the Designated Broker. Upon receipt of such notice, the Designated
Broker will arrange for either (a) the issuance and delivery of all
shares held in the Participant's account as soon as administratively
feasible or (b) the sale of the shares, as described by the Participant.
Certificates shall be issued only in the following situations:
(i) if the Participant requests a certificate; or
(ii) if the Participant terminates employment with the Company and
requests a certificate.
In both of these cases, the Participant will be required to notify the
Designated Broker and pay an issuance fee. The share certificate will be
issued to the Participant as soon as administratively feasible after the
receipt by the Designated Broker of the required form and payment of the
issuance fee.
Fractional shares shall be handled as follows: For share withdrawals,
only whole shares will be certified and issued to Participants. A
payment will be made to the Participant for any fractional shares owned
by the Participant. This payment shall be computed using the Closing
Market Price of a share of Common Stock on the date the withdrawal is
processed by the Designated Broker. For shares sold, Participants shall
receive credit for all whole and fractional shares at the actual price
for which the shares were sold.
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11. INCOME TAX OBLIGATIONS
Participants shall be responsible for all personal income tax
obligations associated with selling shares of Common Stock purchased
through this Plan. The Committee shall recommend that each Participant
seek competent, professional tax advice prior to enrolling in the Plan
to ensure he or she fully understands the tax consequences resulting
from stock sales.
12. TERMINATION OF PARTICIPATION
The right to participate in the Plan terminates immediately when a
Participant ceases to be employed by Billing or any Subsidiary. Employee
Contribution Amounts collected prior to the date of termination of
employment shall be paid in cash. The cash shall be delivered to the
Participant as soon as administratively feasible following the end of
the Participation Period in which the Participant's employment
terminates. Employee Contribution Amounts for Participants who are on a
Leave of Absence will be used to purchase Common Stock at the conclusion
of the Participation Period in accordance with Section 9.
13. DEATH OF A PARTICIPANT
As soon as administratively feasible after receiving notification of the
death of a Participant, Employee Contribution Amounts collected prior to
the date of termination of employment shall be paid in cash to the
Participant's estate. No additional shares of Common Stock may be
purchased on behalf of a Participant after notification of death is
received. All assets in a Participant's stock trading account will
remain in the Participant's account until the person whom the
Participant has elected a joint tenant, with or without right of
survivorship, or the representative of the Participant's estate requests
delivery thereof from the Designated Broker and submits such
documentation as the Designated Broker may require to show proof of
entitlement thereto.
14. ASSIGNMENT
The rights of a Participant under the Plan shall not be assignable or
otherwise transferable by the Participant except by win or the laws of
descent and distribution or pursuant to a qualified domestic relations
order. No purported assignment or transfer of any rights of a
Participant under the Plan, whether voluntary or involuntary, by
operation of law or otherwise, shall vest in the purported assignee or
transferee any interest or right therein whatsoever, but immediately
upon such assignment or transfer, or any attempt to make the same, such
rights shall terminate and become of no further effect. If the foregoing
provisions of this Section 14 are violated, the Participant's election
to purchase Common Stock shall terminate and the only obligation of the
Company remaining under the Plan shall be to pay the person entitled
thereto the Employee Contribution Amount then credited to the
Participant's account. No Participant may create a lien on any funds,
securities, rights or other property held for the account of the
Participant under the Plan, except to the extent permitted by will or
the laws of descent and distribution if beneficiaries have not been
designated. A Participant's right to purchase shares of Common Stock
under the Plan shall be exercisable only during the Participant's
lifetime and only by him or her.
15. COSTS
billserv.com will pay all expenses incident to establishing and
administering the Plan. Expenses to be incurred by Participants shall be
limited to brokerage fees relating to sales of stock from the
Participant's account (as described herein), issuance fees (as described
in Section 10) and any personal income tax obligations.
16. REPORTS
At least annually, the Company shall provide or cause to be provided to
each Participant a report of their Employee Contribution Amounts and the
shares Of Common Stock purchased with such Employee Contribution Amounts
by that Participant on each Exercise Date.
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17. EQUAL RIGHTS AND PRIVILEGES
All eligible Employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock
purchase plan" within the meaning of Section 423 or any successor
provision of the Code and related regulations. Any provision of the Plan
that is inconsistent with Section 423 or any successor provision of the
Code shall without further act or amendment by the Company be reformed
to comply with the requirements of Section 423. This Section 17 shall
take precedence over all other provisions in the Plan.
18. RIGHTS AS A STOCKHOLDER
A Participant shall have no rights as a stockholder under his or her
rights to purchase Common Stock until he or she becomes a stockholder as
herein provided. A Participant will become a stockholder with respect to
shares for which payment has been completed as provided in Section 9
effective as of the date the shares are posted to the Participant's
stock trading account.
19. MODIFICATION AND TERMINATION
The Board may amend or terminate the Plan at any time as permitted by
law, with the exception that the provisions of the Plan (including,
without limitation, the provisions of Sections 8 and 9) that constitute
a formula award for purposes of Rule l6b-3 promulgated by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as
amended ("Rule 16b-3"), may not be amended more than once every six (6)
months, other than to comply with changes in the Code, or the rules
thereunder. No amendment shall be effective unless within one (1) year
after the change is adopted by the Board it is approved by the holders
of a majority of the voting power of billserv.com's outstanding shares:
(i) if and to the extent such amendment is required to be approved
by stockholders to continue the exemption provided for in Rule
l6b-3 (or any successor provision); or
(ii) if such amendment would cause the rights granted under the Plan
to purchase shares of Common Stock to fail to meet the
requirements of Section 423 of the Code (or any successor
provision).
20. BOARD AND STOCKHOLDER APPROVAL; EFFECTIVE DATE
The Plan was approved by the Board and by the sole stockholder of
billserv.com on January 4, 1999. The Plan will become effective as of
July 1, 1999.
21. GOVERNMENTAL APPROVALS OR CONSENTS
The Plan and any offering or sale made to Employees under the Plan are
subject to any governmental approvals or consents that may be or become
applicable in connection therewith. Subject to the provisions of Section
19, the Board may make such changes in the Plan and include such terms
in any offering under the Plan as may be desirable to comply with the
rules or regulations of any governmental authority.
22. USE OF FUNDS
All Employee Contribution Amounts received or held by the Company under
this Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such amounts.
23. NO ADDITIONAL PURCHASE RIGHTS OR EMPLOYMENT RIGHTS
Other than for rights to purchase Common Stock under the Plan, the Plan
does not, directly or indirectly, create any right for the benefit of
any Employee or class of Employee to purchase any shares under the Plan,
or create in any Employee or class of Employee any right with respect to
continuance of employment with the Company, and it shall not be deemed
to interfere in any way with the Company's right to terminate, or
otherwise modify, any Employee's employment at any time.
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24. EFFECT OF PLAN
The provisions of the Plan shall, in accordance with its terms, be
binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrators or trustees thereof,
heirs and legatees, and any receiver, trustee in bankruptcy or
representative of creditors of such Employee.
25. GOVERNING LAW
The laws of the State of Nevada will govern all matters relating to the
Plan except to the extent superseded by the laws of the United States or
the property laws of any particular state.
26. NO PAYMENT OF INTEREST
No interest will be paid or allowed on any Employee Contribution Amounts
or amounts credited to the account of any Participant.
27. OTHER PROVISIONS
The agreement to purchase shares of Common Stock under the Plan shall
contain such other provisions as the Committee and the Board shall deem
advisable, provided that no such provision shall in any way conflict
with the terms of the Plan.
14
[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 Employee Stock Purchase 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 1,000,000 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.
15
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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
16
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. Employee Stock Purchase Plan, of our
report dated January 27, 2000, appearing in Annual Report Pursuant to Section 13
or 15(d) at 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
17
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"), 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. Employee Stock Purchase 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
18
