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 EMPLOYEE COMPREHENSIVE STOCK 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
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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
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Common Stock, Par
Value $.001 2,000,000 shares(1) $9.16 $18,320,000 $4836.49
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(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.
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 Employee Comprehensive Stock 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
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.
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 February 14, 2000
E. Scott Crist*
/s/ ROGER R. HEMMINGHAUS Director February 14, 2000
Roger R. Hemminghaus*
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
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 Employee Comprehensive Stock 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.