As filed with the Securities and Exchange Commission on February 9, 2001
REGISTRATION NO. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BILLING CONCEPTS CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2781950
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7411 JOHN SMITH DRIVE, SUITE 200 78229
SAN ANTONIO, TEXAS (Zip Code)
(Address of Principal Executive Offices)
BILLING CONCEPTS CORP. 401(K) PLAN
(Full title of the Plan)
W. AUDIE LONG, ESQ.
GENERAL COUNSEL
BILLING CONCEPTS CORP.
7411 JOHN SMITH DRIVE, SUITE 200
SAN ANTONIO, TEXAS 78229
(Name and address of agent for service)
(210) 949-7000
(Telephone number, including area code, of agent for service)
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
ATTENTION: PHILLIP M. RENFRO, ESQ.
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER SHARE(1) PRICE(1) REGISTRATION FEE
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Common Stock,
$.01 par value 100,000 (2)(3) $2.845 $284,500 $71.13
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Series A Junior Participating
Preferred Stock Purchase
Rights (4)(5) 100,000 - - --
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Total 100,000 $2.845 $284,500 $71.13
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(1) Pursuant to Rule 457(c) and (h), the maximum offering price per
security and maximum aggregate offering price of the Common Stock have
been calculated on the basis of the average of the high and low prices
of the Common Stock as reported by the National Market System of Nasdaq
on February 6, 2001.
(2) Maximum number of shares expected to be acquired under the Billing
Concepts Corp. 401(k) Plan (the "Plan").
(3) 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. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, as amended, this Registration Statement also covers an
indeterminate amount of interests to be offered and sold pursuant to
the Plan.
(4) The Series A Junior Participating Preferred Stock Purchase Rights (the
"Purchase Rights") are initially carried and traded with the Company's
Common Stock. The value attributable to the Purchase Rights, if any, is
reflected in the value of the Company's Common Stock. No fee is
required pursuant to Rule 457(g) under the Securities Act of 1933, as
amended.
(5) Purchase Rights related to the Common Stock pursuant to the Rights
Agreement dated July 10, 1996, between Registrant and U.S. Trust
Company of Texas, N.A., Trustee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in
this Registration Statement:
1. The Annual Report on Form 10-K of Billing Concepts Corp., a
Delaware corporation (the "Registrant"), for the year ended September 30, 2000;
2. The Current Report on Form 8-K of the Registrant dated
December 22, 2000 and filed with the Securities and Exchange Commission (the
"Commission") on January 3, 2001;
3. The Amendment No. 1 to the Annual Report on Form 10-K/A of
the Registrant filed with the Commission on January 29, 2001;
4. The Transition Report on Form 10-Q of the Registrant for
the transition period from October 1, 2000 to December 31, 2000; and
5. The Registrant's Registration Statement on Form 10/A, as
amended, File No. 0-28536, filed with the Commission on July 11, 1996,
containing a description of the terms, rights and provisions applicable to the
Company's outstanding Common Stock and attached Series A Junior Participating
Preferred Stock Purchase Rights.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the filing hereof and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
For purposes of this Registration Statement, any document or
any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law,
directors and officers as well as other employees and individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation-a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the Registrant, and with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of derivative
actions, except that indemnification extends only to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such an
action and that the Delaware General Corporation Law requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable by the Registrant.
Article VIII of the Amended and Restated Bylaws of the
Registrant requires the Registrant to indemnify any person to whom, and to
the extent, indemnification may be granted pursuant to Section 145 of the
Delaware General Corporation Law.
Article XI of the Registrant'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 Registrant will be indemnified by the Registrant
against all expenses and liabilities, including attorneys' fees, reasonably
incurred by or imposed upon him, except in such case where the director, officer
or employee is adjudged guilty of willful misfeasance in the performance of his
duties. Article XI also provides that the right of indemnification shall be in
addition to and not exclusive of all other rights to which such director,
officer or employee may be entitled.
The foregoing summaries are necessarily subject to the complete
text of the statute, Certificate of Incorporation of the Registrant and the
Bylaws of the Registrant referenced above and are qualified in their entirety
by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Registrant hereby undertakes to submit the Plan and any
amendments thereto, to the Internal Revenue Service (the "IRS") and to make all
changes required by the IRS in order to qualify the Plan under Section 401 of
the Internal Revenue Code.
4.1 Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.4 of
the Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1998).
4.2 Amended and Restated Bylaws of the Registrant
(incorporated herein by reference to Exhibit 3.3 of
the Registrant's Annual Report on Form 10-K for the
year ended September 30, 1998).
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4.3 Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated herein
by reference to Exhibit 3.2 of the Registrant's
Registration Statement on Form 10/A dated July 11,
1996 (File No. 0-28536)).
4.4 Rights Agreement dated July 10, 1996, between the
Registrant and U.S. Trust Company of Texas, N.A.,
Trustee (incorporated herein by reference to
Exhibit 4.2 of the Company's Registration
Statement on Form 10/A dated July 11, 1996 (File
No. 0-28536)).
*4.5 Billing Concepts Corp. 401(k) Plan.
*23.1 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board
of Directors of the Registrant (contained on
signature page).
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* Filed herewith.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act, that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Antonio and State of Texas the 9th day of
February 2001.
BILLING CONCEPTS CORP.
By: /s/ David P. Tusa
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David P. Tusa
Senior Vice President and
Chief Financial Officer
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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
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/s/ Parris H. Holmes, Jr. Chairman of the Board and February 9, 2001
------------------------------------ Chief Executive Officer
Parris H. Holmes, Jr. and a Director
(Principal Executive Officer)
/s/ David P. Tusa Senior Vice President February 9, 2001
------------------------------------ and Chief Financial Officer
David P. Tusa (Principal Financial and
Accounting Officer)
/s/ Lee Cooke Director February 9, 2001
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Lee Cooke
/s/ Thomas G. Loeffler Director February 9, 2001
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Thomas G. Loeffler
/s/ William H. Cunningham Director February 9, 2001
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William H. Cunningham
/s/ J. Stephen Barley Director February 9, 2001
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J. Stephen Barley
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
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4.1 Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.4 of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998).
4.2 Amended and Restated Bylaws of the Registrant (incorporated
herein by reference to Exhibit 3.3 of the Registrant's Annual
Report on Form 10-K for the year ended September 30, 1998).
4.3 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated herein by reference to Exhibit 3.2
of the Registrant's Registration Statement on Form 10/A dated
July 11, 1996 (File No. 0-28536)).
4.4 Rights Agreement dated July 10, 1996, between the Registrant and
U.S. Trust Company of Texas, N.A., Trustee (incorporated herein
by reference to Exhibit 4.2 of the Company's Registration
Statement on Form 10/A dated July 11, 1996 (File No. 0-28536)).
*4.5 Billing Concepts Corp. 401(k) Plan.
*23.1 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board of Directors of
the Registrant (contained on signature page).
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* Filed herewith.