JONES & KELLER, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
PH: (303) 573-1600
FAX: (303) 573-1600
April 5, 2001
VIA EDGAR
United States Securities and Exchange Commission
Division of Corporation Finance
450 5th Street N.W. Mail Stop 3-4
Washington D.C. 20549
Attention: Donald J. Rinehart
Re: Factual Data Corp.(the "Company")
Post-Effective Amendment No. 3 to Form SB-2 on Form S-3
File No. 333-47051
Dear Mr. Rinehart:
Enclosed for filing please find the Company's Post-Effective Amendment No.
3 to Form SB-2 on Form S-3 Registration Statement. Pursuant to your
recommendation, the Company is converting its registration statement from Form
SB-2 to Form S-3 in this filing.
Please contact the undersigned with any questions or comments. Thank you.
Very truly yours,
JONES & KELLER, P.C.
/s/Samuel E. Wing
By: Samuel E. Wing
cc: Factual Data Corp.
As filed with the Securities and Exchange Commission on April 5, 2001
Registration No. 333-47051
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
POST EFFECTIVE AMENDMENT NO. 3
TO
FORM SB-2
ON FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
FACTUAL DATA CORP.
(Exact name of registrant as specified in its charter)
Colorado 7374 84-1449911
---------------------- ---------- ----------------
(State or other jurisdiction of (Primary S.I.C. Code Number) (I.R.S. Employer
incorporation or organization) Identification Number)
5200 Hahns Peak Drive
Loveland, Colorado 80538
(970) 663-5700
(Address and telephone number of principal executive offices and
principal place of business)
J.H. Donnan
5200 Hahns Peak Drive
Loveland, Colorado 80538
(970) 663-5700
(Name, address and telephone number of agent for service)
COPIES TO:
Samuel E. Wing
Jones & Keller, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
Telephone: (303) 573-1600
-------------------------------
Approximate date of proposed sale to the public: As soon as practicable after
the effective date of this Post-Effective Amendment No. 3 to the
Registration Statement.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. "
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. "
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. "
The Registrant hereby amends this Post Effective Amendment No. 3 to the
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Post Effective Amendment No. 3 to the Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Post Effective Amendment No. 3 to the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
PROSPECTUS SUBJECT TO COMPLETION, DATED APRIL 5, 2001
FACTUAL DATA CORP.
We are offering 1,620,000 shares of our common stock to holders electing to
exercise warrants and options issued as part of our initial public offering in
May 1998. We will receive all the proceeds from this offering. The 1,380,000
warrants sold to the public in our offering are exercisable at $7.15 per share.
We issued an option to the underwriter of our initial public offering to
purchase 120,000 shares of our common stock for $7.04 per share and warrants to
purchase an additional 120,000 shares of our common stock for $9.15 per share.
The underwriter will receive all of the proceeds from the sale of these options
and warrants if they are sold rather than exercised by it. See "Selling
Securityholder."
Our common stock and public warrants trade on the Nasdaq National Market
under the symbols FDCC and FDCCW.
-------------------------
You should carefully consider the risk factors beginning on page 3 before
purchasing any of the securities.
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _______________, 2001
- ---------------------------------------------------------------------------------------------------------------------
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
- ---------------------------------------------------------------------------------------------------------------------
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public at the
SEC's web site at http://www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference some of the documents we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934. This prospectus is part of a registration
statement we filed with the SEC (Registration No. 333-47051). The documents we
incorporate by reference are:
o Our Annual Report on Form 10-KSB for the year ended December 31,
2000.
o Our Current Reports on Form 8-K describing three of our most recent
acquisitions filed June 6, 2000, August 17, 2000 and September 20,
2000.
o The description of our common stock, which is contained in Items 1
and 2 of our Registration Statement on Form 8-A filed pursuant to
Section 12 of the Exchange Act on May 5, 1998.
o All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to
the termination of the offering of the shares offered hereby.
HOW TO REQUEST INFORMATION
We will provide at no cost to each person, including any beneficial owner,
to whom this prospectus is delivered, on the written or oral request of such
person, a copy of any or all of the documents we incorporate by reference, other
than exhibits to such documents. Requests should be directed to Factual Data
Corp., 5200 Hahns Peak Drive, Loveland, Colorado 80538, (970) 663-5700,
Attention: Investor Relations.
ABOUT FACTUAL DATA CORP.
Factual Data Corp. was formed in 1985 to provide customized credit reports
to mortgage lenders. In the past fifteen years, we have greatly expanded our
business by developing a wide range of information services and sophisticated
technology to deliver those services. We were among the pioneers in delivering
business-to-business information services via electronic commerce. For over
nine years, our customers have been able to reap the benefits of our information
services by way of electronic order and delivery with the touch of a few buttons
from their PC. Today, nearly all of our customers receive our customized reports
by modem or network delivery directly to their computers.
We specialize in preparing mortgage credit reports (MCRs) that we format
and customize for each mortgage lender's requirements and then transmit to these
lenders via the Internet, modem, network or facsimile. We market our services
through our website, www.factualdata.com, and nationally through offices located
in most major metropolitan areas, including our own offices and through our
franchisees and licensees. Our franchisees and licensees are collectively
referred to as system affiliates. We are implementing a consolidation plan in
the mortgage credit report industry.
Our portfolio of services includes fully automated consumer credit reports,
employee screening, resident screening, and similar information services for
businesses and government-sponsored enterprises. Our expanded team of
programming, information, and marketing specialists focus intently on making our
proprietary technology useful for a wider variety of purposes. As a result of
that effort, we can now give our customers in any industry the facts they need,
in a format they can use, to make any business decision. We can manipulate our
information gathering and analysis platform in an endless variety of ways. For
example, we can generate reports to help commercial lenders, home equity
lenders, and credit unions make lending decisions; to help franchisors assess
prospective franchisees; and to help businesses evaluate prospective customers,
vendors, and venture partners.
Our executive offices are located at 5200 Hahns Peak Drive, Loveland,
Colorado 80538. Our telephone number is (970) 663-5700. We maintain a site on
the World Wide Web at http://www.factualdata.com. However, the information on
our website is not part of this prospectus.
RISK FACTORS
To inform investors of our future plans and objectives, this prospectus
(and other reports and statements issued by us and our officers from time to
time) contain certain statements concerning our future performance, intentions,
objectives, plans and expectations that are or may be deemed to be
"forward-looking statements." Our ability to do this has been fostered by the
Private Securities Litigation Reform Act of 1995, which provides a "safe harbor"
for forward-looking statements to encourage companies to provide prospective
information so long as those statements are accompanied by meaningful cautionary
statements identifying important factors that could cause actual results to
differ materially from those discussed in the statement. Such risks and
uncertainties include but are not limited to the following:
A decrease in demand for mortgage credit reports will likely decrease our
earnings.
Our primary service is our mortgage credit report ("MCR"). The use of this
service is driven largely by consumer demand for credit for new home mortgages
and refinancings and, to a lesser extent, lenders' efforts to develop new, and
monitor existing, credit relationships. Consumer demand for mortgage credit
tends to vary due to interest rate fluctuations and general economic conditions.
Our expenses consist largely of labor, repository and communication charges, and
our ability to quickly control these costs is critical if the demand for MCRs
slackens. Also, our lack of significant diversification in other services
hinders our ability to withstand the negative impact of a downturn in demand for
MCRs.
Our consolidation plan includes operational and financial risks which may
negatively affect our earnings.
In mid-1998, we implemented a consolidation plan to acquire certain of our
system affiliates and competitors engaged in providing MCR services that either
complement or will expand our business. This plan involves a number of risks
including:
o ability to retain acquired customers
o diversion of management time
o use of our financial resources in reviewing and acquiring acquisition
candidates
o operational assimilation of the acquired companies
o amortization charges of acquired intangible assets
We have several system affiliates that have exclusive territory rights
which expire at various times through the year 2005. We cannot compete or
license others in those areas. We will be required to purchase a system
affiliate, or wait until the expiration of the applicable agreement with the
system affiliate, before expanding into, or acquiring a competitor in, the same
territory. The success of our consolidation plan, both long-term and short-term,
remains unknown.
We may be unable to manage our recent and continued growth, which could
negatively affect our earnings.
Since mid-1998, we have made over 30 acquisitions and employees have grown
from about 37 to over 200. Our ability to manage these acquisitions, our new
employees and the increased business activity while continuing to make
additional acquisitions is critical to our success. Also critical in our
acquisitions is our ability to:
o attract and keep mid-level employees and other managers
o implement internal cost controls, operating policies and procedures
o implement our sales and marketing techniques
We may not be successful in implementing our business strategy due to the
significant competition we face.
The MCR industry is highly fragmented. We believe there are approximately
1,400 competitors in the United States providing MCR services. We face both
direct and indirect competition for our services. There are large numbers of
companies engaged in the sale of one or more of the services we offer. A
significant number of these competitors are small companies operating on a local
or regional basis, while some are large companies operating on a national scale.
Several large companies have far greater financial resources than we do,
including Equifax Credit Information Services, Inc., The First American Corp.
and Trans Union Corporation. We face intense competition in MCR services from
these entities, and as to our other services, from companies engaged in
employment and tenant application verification activities.
Significant governmental regulation, privacy issues and other legal
considerations increase our operating costs.
Our business involves collecting consumer and business credit data and
other information and distributing this information to lenders and businesses
making credit and other decisions. Concerns about individual privacy and the
collection, distribution and use of information about individuals have led to
substantial governmental regulation of the credit reporting industry. The
industry is regulated under the federal Fair Credit Reporting Act and by
legislation in many states. The industry has recently been subject to increased
legislative attention. There can be no assurance that pending or additional
federal or state consumer-oriented legislation will not significantly limit
demand for, or increase the costs of, our services. Under general legal concepts
and, in some instances, under specific federal and state statutes, we could be
held liable to customers or to the subjects of credit reports prepared by us for
inaccurate information or misuse of information. No assurance can be given that
we can successfully defend any claims made against us, that insurance will cover
these claims or that uninsured losses from these claims might arise thereby
negatively impacting our operations and financial condition.
We are leveraged which may strain our cash flow and negatively impact our
financial condition and performance.
At December 31, 2000, our debt was approximately $21.4 million, exclusive
of payables and accruals. In May, 2000, we entered into a $10 million credit
facility with a bank and paid $4.8 million of our then existing debt. We intend
to continue making acquisitions using our remaining credit facility and seller
subordinated debt. Our ability to make principal and interest payments depends
on net cash flow from our operations. Due primarily to our one time adjustments
in 2000, we were not in technical compliance with certain financial covenants in
our credit agreement with Wells Fargo; however, such non-compliance has been
waived by the bank. We amended our credit facility agreement on March 27, 2001,
which among other things amended certain financial covenants.
We are dependent upon the services of our Chief Executive Officer.
We are highly dependent on the services of our Chief Executive Officer,
J.H. Donnan, who was subject to an employment agreement which expired on July 1,
2000. To the extent that Mr. Donnan's services become unavailable, we may not be
able to promote existing personnel or employ qualified persons on favorable
terms. We own a $1 million Key Man term life insurance policy on the life of Mr.
Donnan.
Our reseller agreements can be cancelled on short notice and they expose us to
claims or liabilities from the use of inaccurate information.
We do not maintain our own consumer credit database. Instead, we obtain
consumer credit data from large, national credit repositories such as Experian,
Inc., TransUnion Corporation and Equifax, Inc. under reseller agreements with
these entities. Generally, the reseller agreements are terminable without cause
by either party within a short period of time upon written notice. Also, the
agreements can be terminated if we were to use the information in violation of
the FCRA or other applicable laws, or in violation of the reseller agreement.
The reseller agreements typically do not provide any warranties as to the
accuracy or correctness of the information contained in the databases maintained
by credit repositories, and further provide that we will hold the repositories
harmless and indemnify them from claims or liabilities arising from the use of
inaccurate information contained in the databases.
We intend to diversify with new products which may be unsuccessful.
Our primary revenue source is from residential mortgage credit reporting.
We have introduced, and intend to introduce, several new products to help
diversify our business and add to revenues. We cannot provide assurance that our
diversification strategy will be successful or that our new products can compete
successfully in the market.
Our success partly depends upon our ability to protect our technology from
misappropriation or infringement.
We rely on a combination of trademark, servicemark, copyright, trade secret
and contract protection to establish and protect our proprietary rights in our
services and technology. Because there is little in the design, development or
delivery of our services that is protectable under law, competitors can
replicate our services. We generally enter into confidentiality agreements with
customers and limit access to and distribution of our proprietary information.
These steps may not be adequate to deter misappropriation or infringement of our
proprietary technologies and costly litigation may ensue. Although we believe
that our intellectual property and technologies do not infringe any proprietary
rights of others, third parties may assert claims of infringement in the future.
We may not be able to meet the automated level of performance required by some
of our larger customers.
Fannie Mae and Freddie Mac provide a secondary market for residential
mortgages. Both entities require that any mortgage purchased be supported by a
credit report on the mortgagee and be prepared by an entity, such as us,
independent from the lender. We are aware that these and other entities are
increasingly using automated credit reporting techniques that require credit
report providers to render almost instantaneous responses, often within 60
seconds or less. We may not be able to continue to provide the level of
performance required by these or other large institutional lenders.
Additionally, we may not be able to match the level of technological service
provided, or developed in the future, by competitors.
A loss of operations in our data centers could negatively impact our earnings.
Our operations depend on our ability to protect our data centers against
damage from fire, power loss, telecommunications failure, natural disasters or
similar events. We moved into a new facility in Loveland, Colorado in April
1998, that is outfitted with backup power and duplicate telecommunication
facilities; nonetheless, in the event we experience a natural disaster, hardware
or software malfunction or other interruption of our data centers operations,
our business could be hurt. Extended interruptions in our services could be
particularly detrimental, and our insurance may not be adequate to compensate us
for resulting losses that may occur.
We brought our backup data center on line in Denver, in July 1999. This
data center brings additional availability to our customers in the unlikely
event of a facilities disaster. The Denver data center has redundant cooling,
power, and telecommunications to protect itself. Additionally, the Denver data
center has telecommunications route diversity from the Loveland facility to
further the redundancy. Potentially, there could still be a natural disaster
that would encompass both the Denver data center as well as the Loveland data
center. Additionally, if Sprint would have a sufficiently large disaster within
its systems, this could adversely affect our ability to communicate with our
customers and/or vendors.
Impediments to takeover attempts and removal of directors may depress the price
of our common stock.
Our Articles of Incorporation and Bylaws contain provisions that may
discourage or make it more difficult for a third party to acquire us. These
provisions include:
o the ability of our Board of Directors to issue authorized but
unissued common and preferred stock without action by our
shareholders, although issuances are subject to approval by the
majority of our independent directors;
o the election of directors for three-year terms, with approximately
one-third of the Board of Directors standing for election each year;
o limitations on alteration of the staggered board provisions and the
ability of shareholders to remove directors; and
o the affirmative vote of the holders of at least two-thirds of our
capital stock entitled to vote to approve a merger, dissolution or
sale of all or substantially all of our assets.
We intend not to declare dividends.
We have not declared nor paid, and we intend not to declare or pay, any
cash or other dividends in the foreseeable future. Earnings, if any, will be
retained to finance our operations and growth.
Sales of outstanding shares may hurt our stock price.
The market price of our common stock could fall substantially if our
shareholders sell large amounts of our common stock. The possibility of such
sales in the public market may also hurt the market price of our securities.
Potential future sales of our common stock include the following:
o 1,912,451 shares which we have registered for resale in connection with
our $15.5 million private placements in March and April, 1999
o warrants to purchase 55,641 shares of our common stock at $8.08 per share
issued to our placement agent in connection with the private placements
o warrants to purchase 100,000 shares of common stock which may be issued
to a financial consulting firm at exercise prices ranging from $9.00 to
$11.00 per share and expiring on September 30, 2003
o 35,833 options outstanding as of December 31, 2000, subject to vesting
provisions, issued under our employee's plans with exercise prices
ranging from $5.50 to $8.00 per share.
o 1,380,000 shares underlying warrants to purchase our common stock issued
in our initial public offering with an exercise price of $7.15 per share
o shares underlying warrants and options to purchase 240,000 shares of our
common stock with an exercise price of $9.15 per share regarding 120,000
warrants and $7.04 per share regarding 120,000 options, both issued to
the underwriter of our 1998 initial public offering
Persons exercising warrants will suffer substantial dilution.
The deficit in the net tangible book value of our common stock at December
31, 2000 was approximately $(11,900,000), or $(2.21) per share. Without taking
into account any other changes in tangible book value after December 31, 2000,
except to give pro forma effect to the exercise of 1,620,000 warrants, our pro
forma net tangible book value deficit at December 31, 2000 would have been
approximately $(124,000) or $(0.02) per share. This represents an immediate
increase in net tangible book value of $2.19 per share to existing holders of
common stock and an immediate dilution of $7.31 per share, or 100%, to
purchasers of common stock who exercise warrants.
USE OF PROCEEDS
If all warrants and options were exercised, we would receive about $11.8
million net of legal, accounting, printing and other offering costs.
We intend to use any proceeds received from the exercise of our warrants
and options for acquisitions, general corporate purposes and working capital.
Pending the uses described above, we will invest the proceeds in
short-term, government, government guaranteed or investment grade securities.
SELLING SECURITYHOLDER
The table below sets forth information regarding the beneficial ownership
of our securities by the selling securityholder. All information contained in
the table below is based upon beneficial ownership as of March 31, 2001.
The selling securityholder was the underwriter of our initial public
offering completed in May 1998. As part of its compensation in the offering, the
underwriter received options to purchase:
o 120,000 shares of our common stock at $7.04 per share
o warrants to purchase 120,000 shares of our common stock at $9.15 per
share
We agreed to register these options, warrants and underlying shares in
order to permit the selling securityholder to sell these securities from time to
time in the public market or in privately-negotiated transactions. We agreed to
prepare and file amendments and supplements to the initial registration
statement necessary to keep the registration of the shares effective until the
earlier of (i) May 13, 2003; or (ii) the date on which all of the securities
have been sold. We have also agreed to pay for all expenses of this offering
other than underwriting discounts and commissions and brokerage commissions and
fees.
This table assumes that all securities owned by the selling securityholder
are being sold. The selling securityholder may offer and sell less than the
number of securities indicated. The selling securityholder is not making any
representation that any securities will or will not be offered for sale.
Securities Beneficially Owned
Prior to the Offering
------------------------------------------------
Options Warrants Securities Securities
Name and Address ----------------------- ----------------------- Offered Beneficially Owned
of Selling Securityholders Number Percent Number Percent Hereby After the Offering
- -------------------------- ------------- -------- ---------- ----------- ----------- ---------------
Schneider Securities, Inc. 120,000 100% 120,000 100% all -0-
1120 Lincoln Street
Suite 900
Denver, Colorado 80203
PLAN OF DISTRIBUTION
This offering is self-underwritten and we will bear all expenses of the
offering.
Upon any solicited exercise of the warrants, we agreed to pay to the
underwriter of our initial public offering a fee of 5% of the aggregate exercise
price of warrant exercises if
o the market price of our common stock on the date the warrant is exercised
was greater than the then exercise price of the warrant;
o the exercise of the warrant was solicited by a member of the National
Association of Securities Dealers, Inc. as designated in writing on the
warrant certificate subscription form (provided that any request for
exercise is presumed to be unsolicited unless the customer states in
writing that the transaction was solicited and designates the broker-dealer
to receive compensation);
o the warrant was not held in a discretionary account;
o disclosure of compensation arrangements was made both at the time of the
offering and at the time of exercise of the warrant; and
o the solicitation of exercise of the warrant was not in violation of
Regulation M promulgated under the Exchange Act
Regulation M under the Exchange Act, as amended, will prohibit the
underwriter from engaging in any market making activities with regard to our
securities during the period commencing as of the date on which the underwriter
becomes a participant in the solicitation of the exercise of warrants until the
termination of such solicitation activity. As a result, the underwriter may be
unable to make a market in our securities during certain periods while the
warrants are exercisable.
The warrants may be exercised by the delivery to Computershare Trust
Company, Inc., 12039 West Alameda Parkway, Lakewood, Colorado 80228 of your
warrant certificate accompanied by an election of exercise and payment of the
warrant exercise price for each share of your common stock purchased in
accordance with the terms of the warrant. Payment must be made in the form of
cash or a cashier's or certified check payable to the order of Factual Data
Corp. Delivery of the certificates representing the common stock will be made
upon receipt of the warrant certificate duly executed for transfer together with
payment for the exercise price and our acceptance of your tender for exercise.
If you exercise fewer than all your warrants, a new warrant certificate
evidencing warrants remaining unexercised will be issued to you.
LEGAL MATTERS
The validity under Colorado law of the shares will be passed upon for us by
Jones & Keller, P.C., Denver, Colorado. Members of that law firm own about 7,000
shares of our common stock.
EXPERTS
Ehrhardt Keefe Steiner & Hottman PC, independent certified public
accountants have audited our consolidated financial statements included in our
Annual Report on Form 10-KSB for the year ended December 31, 2000, as set forth
in their report, which is incorporated in this prospectus by reference. Our
consolidated financial statements are incorporated by reference in reliance on
their report, given on their authority as experts in accounting and auditing.
We have not authorized any person to make a statement that differs from
what is in this prospectus. If any person makes such a statement you should not
rely on it. This prospectus is not an offer to sell, nor is it seeking an offer
to buy, the shares in any state in which the offer or sale is not permitted. The
information in this prospectus is complete and accurate as of its date, but the
information may change after that date.
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION
INCORPORATION OF DOCUMENTS BY REFERENCE
HOW TO REQUEST INFORMATION
ABOUT FACTUAL DATA CORP
RISK FACTORS
USE OF PROCEEDS
SELLING SECURITYHOLDERS
PLAN OF DISTRIBUTION
LEGAL MATTERS
EXPERTS
FACTUAL DATA CORP.
1,620,000 Shares
of Common Stock
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various costs and expenses to be paid by
the Registrant with respect to the sale and distribution of the securities being
registered. All of the amounts shown are estimates.
Printing and Edgar Expenses $ 500
Legal Fees and Expenses 1,500
Accounting Fees and Expenses 500
Miscellaneous -0-
Total $2,500
Item 15. Indemnification of Directors and Officers.
The Registrant's Bylaws requires the Registrant to indemnify, to the
fullest extent authorized by applicable law, any person who is or is threatened
to be made a party to any civil, criminal, administrative, investigative, or
other action or proceeding instituted or threatened by reason of the fact that
he is or was a director or officer of the Registrant or is or was serving at the
request of the Registrant as a director or officer or another corporation,
partnership, joint venture, trust or other enterprise.
The Registrant's Articles of Incorporation provides that, to the fullest
extent permitted by Colorado law, directors and officers of the Registrant shall
not be liable to the Registrant or any of its shareholders for damages caused by
a breach of fiduciary duty by its directors or officers.
Sections 7-109-102 and 103 of the Colorado Business Corporation Act
("CBCA") authorize the indemnification of directors and officers against
liability incurred by reason of being a director of officer and against expenses
(including attorney's fees) judgments, fines and amounts paid in settlement and
reasonably incurred in connection with any action seeking to establish such
liability, in the case of third-party claims, if the officer or director acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and in the case of actions by or in the
right of the corporation, if the officer or director acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interest of
the corporation and if such officer or director shall not have been adjusted
liable to the corporation, unless a court otherwise determines. Indemnification
is also authorized with respect to any criminal action or proceeding where the
officer or director also had no reasonable cause to believe his conduct was
unlawful.
All executive officers and directors of the Company have entered into
indemnification agreements with the Company which provide for certain defense
costs and reimbursements.
The above discussion of the Registrant's Articles of Incorporation, Bylaws
the CBCA and the indemnification agreements is only a summary and is qualified
in its entirety by the full text of each of the foregoing.
The Registrant maintains directors' and officers' liability insurance.
Item 16. Exhibits
Exhibit
Number
5 Opinion of Jones & Keller, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC.
23.2 Consent of Jones & Keller, P.C. (included in Exhibit 5).
24 Power of Attorney (see page II-4).
Item 17. 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;
(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 (1)(i) and (1)(ii) 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 Securities Exchange Act of
1934, as amended, 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.
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 that is incorporated by reference into 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
of 1933 may be permitted to directors, officer 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
question 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.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 on Form S-3 and authorized this
Post-effective Amendment No. 3 to the Registration Statement to be signed on its
behalf by the undersigned thereunto duly authorized, on this 5th day of
April 2001.
FACTUAL DATA CORP.
By:/s/ J.H. Donnan
J.H. Donnan, Chief Executive Officer
Each person whose signature appears below constitutes and appoints J.H.
Donnan and Todd A. Neiberger, or either of them, as attorneys-in-fact, each with
the power of substitution for him in any and all capacities, to sign any
amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, 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 connection therewith, as fully to all intents and
purposes as he might or could do in person hereby ratifying and confirming all
that said attorneys-in-fact or any of them, or their or his or her substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment No. 3 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
Signature Title Date
By: /s/ J.H. Donnan Chairman of the Board of April 5, 2001
J.H. Donnan Directors and Chief Executive
Officer (Principal Executive
Officer)
By: /s/ Todd A. Neiberger Chief Financial Officer and a April 5, 2001
Todd A. Neiberger Director (Principal Financial and
Accounting Officer)
By: /s/ James N. Donnan President and a Director April 5, 2001
James N. Donnan
By: /s/ Robert J. Terry Director April 5, 2001
Robert J. Terry
By: /s/ Abdul H. Rajput Director April 5, 2001
Abdul H. Rajput
By: /s/ Daniel G. Helle Director April 5, 2001
Daniel G. Helle
By: /s/ J. Barton Goodwin Director April 5, 2001
J. Barton Goodwin
EXHIBIT INDEX
Exhibit
Number Exhibit
5 Opinion of Jones & Keller, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC.
23.2 Consent of Jones & Keller, P.C. (included in Exhibit 5).
24 Power of Attorney (see page II-4).
