AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CARREKER-ANTINORI, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 7379 75-1622836
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification
organization) No.)
4055 VALLEY VIEW LANE, SUITE 1000
DALLAS, TEXAS 75244
(972) 458-1981
(Address, including zip code, telephone number,
including area code, of registrant's principal executive office)
JOHN D. CARREKER, JR.
CARREKER-ANTINORI, INC.
4055 VALLEY VIEW LANE, SUITE 1000
DALLAS, TEXAS 75244
(972) 458-1981
(Name, address, including zip code, telephone number,
including area code, of agent for service)
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COPIES TO:
JOHN B. MCKNIGHT
Locke Liddell & Sapp LLP
2200 Ross Avecnue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 effective 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. / /
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
MAXIMUM AMOUNT TO OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED SHARE(1) PRICE(1) FEE(1)
Common Stock, $0.01 par value......... 1,239,998 shares $6.56 $8,134,387 $2,262
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended,
and based upon the average of the high and low sale prices of the Common
Stock reported on the Nasdaq National Market on July 26, 1999.
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THE REGISTRANT HEREBY AMENDS THIS 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 REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Subject to Completion--July 29, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL
THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND IS NOT SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
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PROSPECTUS
1,239,998 SHARES
CARREKER-ANTINORI, INC.
COMMON STOCK
This prospectus relates to the offering of up to 1,239,998 shares of common
stock of Carreker-Antinori, Inc., which is not being underwritten. We are
registering the shares of common stock for the accounts of some of our
stockholders who received shares of our common stock in connection with an
acquisition.
We will not receive any of the proceeds from the sale of the shares offered
by this prospectus. All the expenses related to the registration of the shares
will be paid by us, except that the selling stockholders will pay any
underwriting, brokerage or related fees, discounts, commissions or the fees or
expenses of counsel or advisors to the selling stockholders.
The selling stockholders may sell the shares of common stock directly or
through one or more broker-dealers on the Nasdaq National Market, in negotiated
transactions or otherwise, at prices related to the prevailing market prices or
at negotiated prices. See "Plan of Distribution."
Our common stock is traded on the Nasdaq National Market under the symbol
"CANI." On July 26, 1999, the last reported sale price for the common stock on
the Nasdaq National Market was $6.38 per share.
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INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 4.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
THE DATE OF THIS PROSPECTUS IS JULY , 1999.
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TABLE OF CONTENTS
PAGE
----
Where You Can Find More Information....................................... 2
Information Incorporated by Reference..................................... 2
Note Regarding Forward-Looking Statements................................. 3
Carreker-Antinori, Inc.................................................... 3
Risk Factors.............................................................. 4
Use of Proceeds........................................................... 13
Selling Stockholders...................................................... 14
Plan of Distribution...................................................... 15
Legal Matters............................................................. 16
Experts................................................................... 16
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934 ("Exchange Act") and therefore we file annual, quarterly and current
reports, proxy statements and other information with the Securities Exchange
Commission ("SEC" or "Commission"). You may read and copy any of the reports,
proxy statements and any other information that we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. In addition, the SEC maintains an Internet site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
Our common stock is quoted on the Nasdaq National Market under the trading
symbol "CANI." Reports, proxy and information statements and other information
about us may be inspected at the National Association of Securities Dealers,
Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, as amended ("Securities Act"), with respect to the
shares of common stock offered in this prospectus. This prospectus is part of
that registration statement and, as permitted by the Commission's rules, does
not contain all of the information set forth in the registration statement. For
further information about us and our common stock, we refer you to those copies
of contracts or other documents that have been filed as exhibits to the
registration statement, and statements relating to such documents are qualified
in all respects by such reference. You can review and copy the registration
statement and its exhibits and schedules from the SEC at the address listed
above or from its Internet site.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
information we file with the SEC in other documents. This means that we can
disclose important information by referring you to other documents that we file
with the SEC. 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 supercede this information. We incorporate by reference
the documents listed below and future filings we will make with the Commission
under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the offering
of these shares is terminated:
(1) Our annual report on Form 10-K for the fiscal year ended January 31, 1999;
(2) The description of our capital stock contained in our registration statement
on Form 8-A filed with the Commission on May 5, 1998 pursuant to Section
12(g) of the Exchange Act
(3) Our current report on Form 8-K dated February 12, 1999;
(4) Our current report on Form 8-K/A dated April 14, 1999; and
(5) Our quarterly report on Form 10-Q for the quarterly period ended April 30,
1999.
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We will provide without charge to you, upon your written or oral request, a
copy of any or all of the information incorporated by reference in this
prospectus. Requests should be directed to:
Carreker-Antinori, Inc.
4055 Valley View Lane, Suite 1000
Dallas, Texas 75244
Attention: James L. Dow, Senior Vice President, Administration and Legal Affairs
Telephone number (972) 458-1981
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain forward
looking statements within the meaning of the Securities Act and the Exchange
Act. Generally, these forward-looking statements, include but are not limited
to, statements about our plans, objectives, expectations, intentions and other
statements contained in this prospectus that are not historical facts. You can
identify these statements by forward-looking words, such as "expect,"
"anticipate," "intend," "plan," "believe," "seek," "estimate," "may," "will" and
"continue" or similar words. You should read statements that contain these words
carefully because they discuss our future expectations, contain projections of
our future results of operations or of our financial condition or state other
forward-looking information. We caution readers that these forward-looking
statements are not guarantees of future performance or events and are subject to
a number of uncertainties, risks and other influences, many of which are beyond
our control and may influence the accuracy of the statements and projections
upon which the statements are based. The factors listed in the section captioned
"Risk Factors" as well as any cautionary language in this prospectus, provide
examples of risks, uncertainties and events that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. Before you invest in our common stock, you should be aware that the
occurrence of the events described in the "Risk Factors" section and elsewhere
in this prospectus could have a material adverse effect on our business,
operating results and financial condition.
CARREKER-ANTINORI, INC.
We are a leading provider of integrated consulting and software solutions
that enable banks to increase their revenues, reduce their costs and enhance
their delivery of customer services. Our offerings are delivered through three
divisions, each consisting of several groups. We believe that our 20 years of
experience in the banking industry, combined with our advanced technological
expertise, positions us to effectively address and anticipate the challenges and
opportunities faced by banks in today's increasingly competitive environment.
Our customers include approximately 170 depositary financial institutions,
including 70 of the largest 100 banks in the United States.
References in this prospectus to "Carreker-Antinori, Inc.," "Carreker,"
"we," "our," and "us" refer to Carreker-Antinori, Inc. and our consolidated
subsidiaries and predecessors. Our Web site is
http://www.carreker.com. Information contained in our Web site does not
constitute part of this prospectus. The address of our principal executive
offices is 4055 Valley View Lane, Suite 1000, Dallas, Texas 75244, and our
telephone number is (972) 458-1981.
3
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AND ALL OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS OR INCORPORATED HEREIN BY REFERENCE
BEFORE PURCHASING OUR COMMON STOCK. INVESTING IN OUR COMMON STOCK INVOLVES A
HIGH DEGREE OF RISK. ANY OF THE FOLLOWING RISKS COULD MATERIALLY ADVERSELY
AFFECT OUR BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION.
WE DEPEND ON THE BANKING INDUSTRY FOR OUR PERFORMANCE
We derive substantially all of our revenues from solutions provided to banks
and other participants in the banking industry. Our future success and growth
significantly depends upon the continued demand for our solutions within this
industry. We believe that an important factor in our growth has been the
substantial change in the banking industry, as manifested by continuing
consolidation, regulatory change, technological innovation and other trends. If
this environment of change were to slow, we could experience reduced demand for
our solutions. In addition, the banking industry is sensitive to changes in
economic conditions and is highly susceptible to unforeseen events, such as
political instability, recession, inflation or other adverse occurrences that
may result in a significant decline in the utilization of bank services. Any
event that results in decreased consumer or corporate use of bank services, or
increased pressures on banks towards the in-house development and implementation
of revenue enhancement or cost reduction measures, could have a material adverse
effect on our business.
THERE ARE MANY FACTORS, INCLUDING SOME BEYOND OUR CONTROL, THAT MAY CAUSE
FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS
We have experienced in the past, and expect to experience in the future,
significant fluctuations in quarterly operating results. These fluctuations may
be caused by many factors, including but not limited to the following:
- The extent and timing of revenues recognized and costs incurred under
value-pricing contracts
- The degree of customer acceptance of new solutions
- The introduction of new or enhanced solutions by us or our competitors
- Budget concerns of customers
- Competitive conditions in the industry
- Seasonal factors
- Bank purchasing cycles
- Timing of consolidation decisions by banks
- The extent of banks' international expansion
- General economic conditions.
In addition, the volume and timing of our contract signings during a quarter
are difficult to forecast, particularly in light of our historical tendency to
have a disproportionately large portion of contract signings in the final weeks
of a quarter. Due to these factors, many of which are beyond our control, our
quarterly revenues and operating results are difficult to predict.
Any failure to achieve expected revenue in any fiscal quarter or an
unanticipated variation in the recognition of revenues can cause significant
variations in our operating results from quarter to quarter. It is possible that
in one or more future quarters our results may fall below the expectations of
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securities analysts and investors. This could result in losses in some future
quarter or have a material adverse effect on our business.
THE LOSS OF A KEY CUSTOMER MAY SEVERELY REDUCE OUR REVENUES BECAUSE A SMALL
NUMBER OF CUSTOMERS ACCOUNT FOR A SUBSTANTIAL PORTION OF OUR BUSINESS
There can be no assurance that we will be successful in maintaining our
existing customer relationships or in securing additional major customers. In
addition, there can be no assurance that we can retain or increase the volume of
business that we do with our existing customers. In particular, continuing
consolidation within the banking industry may result in the loss of one or more
significant customers. Any failure by us to retain one or more of our large
customers, maintain or increase the volume of business done for our customers or
establish profitable relationships with additional customers would have a
material adverse effect on our business.
Our five largest customers accounted for approximately 35%, 44% and 36% of
total revenues during the years ended January 31, 1999, 1998 and 1997,
respectively. While our significant customers have changed from period to
period, Wells Fargo & Company (including the former Norwest Corporation) has
consistently ranked as one of our top customers, and accounted for approximately
11%, 13% and 15% of total revenues during the years ended January 31, 1999, 1998
and 1997 respectively. Our largest customer during the year ended January 31,
1998 was Fleet Financial Group, Inc., which accounted for approximately 14% of
total revenues in that period. Further, inasmuch as approximately 87% and 85% of
our total revenues in the year ended January 31, 1999 were derived from
companies who were our customers in the years ended January 31, 1998 and 1997,
respectively, we are dependent to a significant degree on our ability to
maintain our existing relationships with these customers.
OUR FIXED-PRICE AND VALUE-PRICED ARRANGEMENTS FOR CUSTOMER PROJECTS MAY REDUCE
OUR REVENUES AND NET INCOME
We derive revenues from our solutions based on a time-and-materials,
fixed-price, and value-priced basis. In connection with fixed-price projects, we
occasionally incur costs in excess of our projections and as a result achieve
lower margins than expected or may incur losses with respect to these projects.
In connection with value-priced projects, we are paid based on an agreed
percentage of either projected or actual increased revenues or decreased costs
derived by the bank over a period of up to twelve months following the
implementation of our solutions. We typically must first commit time and
resources to develop such projections before a bank will commit to purchase our
solutions, and therefore assume the risk of making these commitments and
incurring related expenses with no assurance that the bank will purchase the
solutions. In addition, from time to time, a customer will not achieve projected
revenues or savings because it belatedly decides not to implement our solutions
or the solutions do not produce the projected results, in which case we may not
be able to collect any or all of the fees provided for in the customer's
contract. The nature of our fixed-priced and value-priced arrangements can
result in decreased operating margins or losses and could materially and
adversely affect our business.
WE ARE GROWING RAPIDLY AND WE MAY NOT HAVE THE RESOURCES TO EFFECTIVELY MANAGE
ADDITIONAL GROWTH
We have experienced significant growth in recent years, and anticipate that
additional expansion may be required in order to address potential market
opportunities. Our recent growth and potential future growth have placed
significant demands on management, as well as on our administrative, operational
and financial resources. We anticipate that we will need to recruit large
numbers of qualified personnel in all areas of our operations, including
management, sales, marketing, delivery and software development. There can be no
assurance that we will be effective in attracting and retaining additional
qualified personnel, expanding our operational capacity or otherwise managing
growth. In
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addition, there can be no assurance that our systems, procedures or controls
will be adequate to support any expansion of our operations. As a result of
acquisitions and continued growth, the needs of our management information
systems is expected to expand and/or change, which could result in the
implementation of new or modified management information systems and/or
procedures. This may necessitate additional training to existing personnel or
the hiring of additional personnel. If we cannot implement the new, or modified,
management information system in a timely manner, our ability to manage growth
effectively or generate timely quarterly reports could be materially and
adversely affected. Our inability to sustain or manage any additional growth
could have a material adverse effect on our business.
OUR SOLUTIONS MAY NOT GAIN MARKET ACCEPTANCE, WHICH COULD ADVERSELY HARM OUR
BUSINESS
Our success depends upon the continued demand for our solutions. Market
acceptance of our existing and future solutions depends on several factors
including:
- The ease with which our solutions can be implemented and used
- The performance and reliability of our solutions
- The degree to which customers achieve expected revenue gains, cost savings
and performance enhancements
- The extent to which our customers and prospective customers are able to
implement alternative approaches to meet their business development and
cost-saving needs
Some of the foregoing factors are beyond our control. There can be no
assurance that our customers will realize the intended benefits of our solutions
or that our solutions will achieve continued or increased market acceptance. Any
significant or ongoing failure to achieve such benefits or to maintain or
increase market acceptance would restrict substantially the future growth of us
and could have a material adverse effect on our business.
THE ABSENCE OF LONG-TERM AGREEMENTS WITH OUR CUSTOMERS MAY ADVERSELY AFFECT OUR
OPERATING RESULTS
We typically provide services to customers on a project-by-project basis
without long-term agreements. When a customer defers, modifies or cancels a
project, we must be able to rapidly redeploy our personnel to other projects in
order to minimize the underutilization of our personnel and the resulting
adverse impact on operating results. In addition, our operating expenses are
relatively fixed and cannot be reduced on short notice to compensate for
unanticipated variations in the number or size of projects in progress. As a
result, any termination, significant reduction or modification of our business
relationships with any of our significant customers or with a number of smaller
customers could have a material adverse effect on our business.
OUR SOFTWARE AND SOLUTIONS MAY CONTAIN DEFECTS OR ERRORS, WHICH CAN HARM OUR
BUSINESS AND THAT OF OUR CUSTOMERS
Our solutions at times in the past have been, and in the future may be,
incompatible with the operating environments of our customers or inappropriate
to address their needs, resulting in additional costs being incurred by us in
rendering services to our customers. Our software occasionally has contained
undetected errors, or "bugs," which become apparent through use of the software.
Because our new or enhanced software initially is installed at a limited number
of sites and operated by a limited number of users, such errors and/or
incompatibilities may not be detected for a number of months after delivery of
the software. These errors in the past have resulted in the deployment of our
personnel and funds to cure errors, resulting in cost overruns and delays in
solutions development and enhancement. Moreover, solutions with substantial
errors could be rejected by or result in damages to
6
customers, which could have a material adverse effect on our business. There can
be no assurance that errors or defects will not be discovered in the future,
potentially causing delays in solution implementation or requiring design
modifications that could adversely affect our business, operating results and
financial condition. It is also possible that errors or defects in our solutions
could give rise to liability claims against us.
WE MAY LOSE MARKET SHARE AND BE REQUIRED TO REDUCE PRICES AS A RESULT OF OUR
INTENSELY COMPETITIVE MARKETS
We compete in markets that are rapidly evolving, intensely competitive and
involve continually changing technology and industry standards. We may not be
successful in competing against our current and future competitors. We compete
with third-party providers of services and software products to the banking
industry that include consulting firms and software companies. Competitive firms
providing consulting services include Andersen Consulting, Electronic Data
Systems Corporation and KMPG Peat Marwick LLP. Software companies include
Earnings Performance Group, Inc., PegaSystems Inc., Sterling Commerce, Inc., HNC
Software Inc., and Transoft International, Inc.
We may experience increased competition from current and potential
competitors, many of which have significantly greater financial, technical,
marketing and other resources than we do. Our competitors may be able to respond
more quickly than we can to new or emerging technologies or changes in customer
requirements, or be able to devote greater resources to the development,
promotion and sale of their products. Also, several of our current and potential
competitors have greater name recognition and larger customer bases than we do,
which may give these competitors leverage to increase market share at our
expense. We expect to face increased competition as other established and
emerging companies enter the banking services market. Competitive pressures
could result in price reductions, fewer customers and loss of market shares
prices. Our inability to compete effectively could have a material adverse
effect on our business.
COMPETITION FROM OUR CUSTOMERS COULD LOWER THE VALUE OF OUR SERVICES
We experience competition from our customers and potential customers, who
may create services that are more attractive than our services. From time to
time, these potential customers develop, implement and maintain their own
services and applications for revenue enhancements, cost reductions and/or
enhanced customer services, rather than purchasing services and related products
from third parties. As a result, we must continuously educate existing and
prospective customers about the advantages of purchasing our solutions. There
can be no assurance that these customers or other potential customers will
perceive sufficient value in our solutions to justify investing in them. In
addition, customers or potential customers could enter into strategic
relationships with one or more of our competitors to develop, market and sell
competing services or products, which could have a material adverse effect on
our business.
WE FACE LEGAL AND TAX RISKS RELATING TO OUR USE OF INDEPENDENT CONTRACTORS
We use independent contractors in connection with our consulting services
and software development. Since we do not treat these individuals as our
employees, we do not pay federal or state employment taxes or withhold federal
or state employment or income taxes from compensation paid to these individuals.
We also do not consider these persons to qualify for coverage or benefits
provided under our employee benefit plans or include these persons when
evaluating the compliance of our employee benefit plans with the requirements of
the Internal Revenue Code. Additionally, we do not treat such persons as
employees for purposes of worker's compensation, labor and employment, or other
legal purposes. From time to time, we may face legal challenges to the
appropriateness of the characterization of such persons as independent
contractors from governmental agencies, the independent contractors themselves
or some other person or entity. The determination of such a legal
7
challenge generally will be determined on a case-by-case basis in view of the
particular facts of each case. The fact-specific nature of such a determination
raises the risk that from time to time an individual that we have characterized
as an independent contractor will be reclassified as an employee for these or
other legal purposes. In the event persons engaged by us as independent
contractors are determined to be employees by the Internal Revenue Service or
any applicable taxing authority, we would be required to pay applicable federal
and state employment taxes and withhold income taxes with respect to such
persons and could become liable for amounts required to be paid or withheld in
prior periods and for costs, penalties and interest thereon. In addition, we
could be required to include such persons in our employee benefit plans on a
retroactive, as well as a current, basis. Furthermore, depending on the party
that makes the legal challenge and the remedy sought, we could be subject to
other liabilities sought by governmental authorities or private persons. At June
30, 1999, 18 consultants were engaged by us as independent contractors. Any
challenge by the IRS, state authorities or private litigants resulting in a
determination that such persons are employees would have a material adverse
effect on our business, operating results and financial condition. From time to
time new legislation may be proposed to establish more stringent requirements
for the engagement of independent contractors. We are unable to assess the
likelihood that any such legislation will be enacted. Further, our ability to
retain independent contractors could in the future deteriorate, due in part to
the lower commitment level that such contractors have to us.
OUR FUTURE SUCCESS SIGNIFICANTLY DEPENDS ON THE EXPERIENCE OF OUR KEY PERSONNEL
Our future success depends, in significant part, upon the continued services
of John D. Carreker, Jr., our Chairman of the Board and Chief Executive Officer,
as well as other executive officers and key personnel. The loss of services of
Mr. Carreker or one or more of our other executive officers or key employees
could have a material adverse effect on our business, operating results and
financial condition. There can be no assurance that we will be able to retain
our executive officers or key personnel. We do not maintain key-man life
insurance covering any of our executive officers or key personnel.
WE ARE DEPENDANT UPON OUR ABILITY TO ATTRACT AND RETAIN QUALIFIED PERSONNEL
We believe our future success depends upon our continuing ability to attract
and retain highly qualified banking, technical and managerial personnel.
Competition for such personnel is intense, and we have at times experienced
difficulties in attracting the desired number of such individuals. Further, our
employees frequently have left to work in-house with our customers. There can be
no assurance that we will be able to attract or retain a sufficient number of
highly qualified employees or independent contractors in the future. The failure
to attract and retain personnel in key positions could have a material adverse
effect on our business.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO DEVELOP NEW TECHNOLOGIES AND
SERVICES TO MEET THE CHANGING NEEDS OF OUR CURRENT AND FUTURE CUSTOMERS
Our future depends, in part, on our ability to enhance our existing
solutions and develop and introduce new solutions. In particular, our
technologies and services must meet the needs of our current and prospective
customers. They also must continue to meet the demands of technological advances
and emerging industry standards and practices on a timely and cost-effective
basis. Although we strive to be a technological leader, future technology
advances may not complement or be compatible with our solutions. In addition, we
may be unable to economically and timely incorporate technology changes and
technology advances into our business. We may be unsuccessful in effectively
using new technologies, adapting our solutions to emerging industry standards or
developing, introducing and marketing solution enhancements or new solutions. We
may also experience difficulties that could delay or prevent the successful
development, introduction or marketing of these solutions. If
8
we incur increased costs or are unable, for technical or other reasons, to
develop and introduce new solutions or enhancements of existing solutions in a
timely manner in response to changing market conditions or customer
requirements, it could have a material adverse effect on our business.
WE MAY BE UNABLE TO ADEQUATELY PROTECT OUR PROPRIETARY RIGHTS OR PREVENT THEIR
UNAUTHORIZED USE, WHICH COULD DIVERT OUR FINANCIAL RESOURCES AND HARM OUR
BUSINESS
Our success significantly depends upon our proprietary technology and
information. We rely upon a combination of patent, copyright, trademark and
trade secret laws and confidentiality procedures to protect our proprietary
technology and information. We have a number of issued patents and registered
trademarks. There can be no assurance that the steps taken by us to protect
these services and products are adequate to prevent misappropriation of our
technology or that our competitors independently will not develop technologies
that are substantially equivalent or superior to our technology. Further, it is
very difficult to police unauthorized use of our software due to the nature of
software. Any such misappropriation of our proprietary technology or information
or the development of competitive technologies could have a material adverse
effect on our business.
In addition, the laws of certain countries in which our software is
distributed offer less protection of intellectual property rights than the laws
of the United States. For example, the laws of a number of foreign jurisdictions
in which we license our software protect trademarks solely on the basis of the
first to register. We currently do not possess any trademark registrations in
foreign jurisdictions. We have common law copyright protection of our software
under various international conventions and other laws, which may or may not
prove effective. Accordingly, effective copyright, trademark and trade secret
protection may not be available in foreign countries. There can be no assurance
that the protection provided by the laws of the United States or such foreign
jurisdictions will be sufficient to protect our proprietary technology or
information.
In addition, we may need to litigate claims against third parties to enforce
our intellectual property rights, protect our trade secrets, determine the
validity and scope of the proprietary rights of others or defend against claims
of infringement or invalidity. This litigation could result in substantial cost
and diversion of management resources. A successful claim against us could
effectively block our ability to use or license our technology in the United
States or abroad. If we cannot adequately protect our proprietary rights, it
could have a material adverse effect on our business.
OUR SOLUTIONS MAY INFRINGE PROPRIETARY RIGHTS OF OTHERS, WHICH MAY SUBJECT US TO
COSTLY CLAIMS AND IMPAIR OUR ABILITY TO SELL OUR SOLUTIONS
We could incur substantial costs in protecting and enforcing our
intellectual property rights. Although presently there are no pending or
threatened intellectual property claims against us, third parties may, in the
future, assert patent, trademark, copyright and other intellectual property
right claims to technologies which are incorporated into our solutions. In such
event, we may be required to incur significant costs in reaching a resolution to
the asserted claims. There can be no assurance that such a resolution would not
require that we pay damages or obtain a license to the third party's
intellectual property rights in order to continue licensing our software as
currently offered or, if such a third-party license is required, that it would
be available on terms acceptable to us. This could have a material adverse on
our business.
WE RELY ON TECHNOLOGY LICENSED FROM THIRD PARTIES, THE LOSS OF WHICH MAY HARM
OUR ABILITY TO SELL OUR SOLUTIONS
We use certain technology licensed from third parties for use in our current
software and software in development. These licenses generally require us to pay
royalties and to fulfill confidentiality obligations. The termination of any
such licenses, or the failure of the third-party licensors to
9
adequately maintain or update their products, could result in delays in our
ability to implement solutions or in delays in the introduction of our new or
enhanced solutions while we search for similar technology from alternative
sources, if any, which would prove costly. Any need to implement alternative
technology could prove to be very expensive for us and any delay in solution
implementation could result in a material adverse effect on our business,
operating results and financial condition. It may also be necessary or desirable
in the future to obtain additional licenses for use of third-party products in
our solutions and there can be no assurance that we will be able to do so on
commercially reasonable terms, if at all.
POTENTIAL YEAR 2000 ISSUES MAY EXPOSE US TO LIABILITY OR LOSS
Many currently installed computer systems and software products are coded to
accept only two-digit entries in the date code field. Beginning in the year
2000, these date code fields will need to accept four-digit entries to
distinguish 21st century dates from 20th century dates. As a result, computer
systems and/or software used by many companies, including those used by us, may
need to be upgraded to be year 2000 compliant. In addition, if banks dedicate a
significant portion of their information technology budgets to the resolution of
Year 2000 issues, their ability to purchase our solutions may be adversely
affected, which could have a material adverse effect on our business, operating
results and financial condition.
We are in the process of evaluating our information technology and
non-information technology systems to determine their year 2000 compliance, but
we have not yet completed this evaluation. Although all of the software
currently offered by us is either designed to be Year 2000 compliant or has been
upgraded to be Year 2000 compliant, we still offer some software which has
imbedded software developed by a third party that is not certified for Year 2000
compliance. Internal tests have disclosed no Year 2000 problems with this
application. We are in the process of addressing this situation with the third
party to resolve the issue. There can be no assurance that our Year 2000
compliant software or related upgrades contain all necessary date code changes
or that such software or upgrades will interface with our customers' other
software programs. Further, liability claims could arise out of our delivery of
solutions that address Year 2000 issues to the extent that such solutions do not
effectively address such issues, and the failure of such solutions to
effectively address Year 2000 issues could have a material adverse effect on our
business, operating results and financial condition. In addition, although we
believe that each of the software programs used in our management information
system and other internal programs is Year 2000 compliant, there can be no
assurance that such software will be Year 2000 compliant, and any failure to be
so compliant may require additional expenditures by us to rectify the
noncompliance.
WE MAY FACE LIABILITY CLAIMS, WHICH MAY HARM OUR FINANCIAL CONDITION
Since we provide solutions that address critical functions of bank
operations, we are exposed to possible liability claims from banks and their
customers. Although we have not experienced any material liability claims to
date, there can be no assurance that we will not become subject to such claims
in the future. A liability claim against us could have a material adverse effect
on our business, operating results and financial condition.
OUR ACQUISITIONS, STRATEGIC ALLIANCES OR INITIATIVES MAY BE DIFFICULT OR
DISRUPTIVE, AND WE MAY NOT REALIZE EXPECTED BENEFITS
We recently completed an acquisition and entered into several strategic
alliances. We continue to evaluate other opportunities and may enter into
strategic alliances and/or initiatives or make acquisitions of other companies
or technologies in the future. Risks inherent in alliances or initiatives
include, among others:
10
- Substantial investment of our resources in the alliance or initiative
- An inability to realize the intended benefits of an alliance or initiative
- Increased reliance on third parties
- Increased payment of third-party licensing fees or royalties for the
incorporation of third-party technology into our solutions
- Inadvertent transfer of our proprietary technology to strategic "partners"
- Loss of control regarding development and marketing of products
- Increased dependence on technology of third parties
- Inability to gain market acceptance of the product or technology involved
in the alliance or initiative
- Increased investment of our resources in developing technology of a third
party
Acquisitions involve a number of risks, including:
- Difficulty in assimilating acquired operations and products
- Diversion of management's attention from other business concerns
- Large write-offs and amortization expenses related to goodwill and other
intangible assets
- Loss of key employees of acquired organizations
- Risks of entering markets in which we have no or limited prior experience
- Payments of cash, incurrence of debt or assumption of other liabilities to
acquire other businesses
There can be no assurance that our entry into strategic alliances will be
successful. In addition, there can be no assurance that we will be able to
integrate successfully the operations, personnel or services that we have
acquired or that we might acquire in the future, and a failure by us to do so
could have a material adverse effect on our business.
We are currently providing management services to ECCHO and PSN, which
enables us to be an infrastructure development partner to the banking industry.
These relationships are forms of strategic alliances. In order to support the
formation and growth of PSN, we have invested time and technological resources
in PSN and have outstanding loans to PSN aggregating $531,000 at June 30, 1999
($500,000 of which has been reserved due to our belief that collection is
doubtful). In addition, we have experienced, and may continue to experience,
delays in collections of management fees from strategic alliances.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES COULD FORCE US TO CHANGE OUR
OPERATIONS
Our primary customers are banks. Although the solutions currently offered by
us have not been subject to any material, specific government regulation, the
banking industry is regulated heavily, and we expect that such regulation will
affect the relative demand for our solutions. There can be no assurance that
federal, state or foreign governmental authorities will not adopt new
regulations, and any adoption of new regulations could require us to modify our
current or future solutions. The adoption of laws or regulations affecting us or
our customers' business could reduce our growth rate or could otherwise have a
material adverse effect on our business.
11
WE FACE RISKS FROM EXPANSION OF OUR INTERNATIONAL OPERATIONS, WHICH MAY HARM OUR
BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION
We have begun to provide solutions to banks outside the United States, and a
key component of our growth strategy is to broaden our international operations.
Our international operations are subject to risks inherent in the conduct of
international business, including:
- Unexpected changes in regulatory requirements
- Fluctuations in the value of the U.S. dollar relative to other currencies
- Export license requirements, tariffs and other economic barriers to free
trade
- Impact of possible adverse political and economic conditions
- Reduced protection for intellectual property rights in some countries
- Difficulties in collecting payments
- Potentially adverse tax and labor consequences
- Difficulties and costs of managing and staffing foreign operations
- Impact of the policies of the United States and foreign governments on
foreign trade
- Cost of adapting our solutions to foreign markets
If we do not realize our expected results from international operations, it
could have a material adverse effect on our business.
OUR MANAGEMENT EXERCISES SUBSTANTIAL CONTROL OVER OUR AFFAIRS
As of June 30, 1999, our executive officers and directors beneficially
owned, in the aggregate, 51% of our outstanding common stock. Accordingly, these
persons, if acting together, have substantial control over matters requiring
approval by our stockholders, including the election of directors.
PROVISIONS IN OUR CHARTER DOCUMENTS MAY DETER POTENTIAL ACQUISITION BIDS FOR OUR
BUSINESS, INCLUDING BIDS WHICH MAY BE BENEFICIAL TO OUR STOCKHOLDERS
Provisions of our certificate of incorporation and bylaws could make it more
difficult for a third party to acquire us, even if doing so would be beneficial
to our stockholders. Our certificate of incorporation and bylaws provide for a
classified board of directors serving staggered terms of three years, prevent
stockholders from calling a special meeting of stockholders and prohibit
stockholder action by written consent. Our certificate of incorporation also
authorizes only the board of directors to fill director vacancies, including
newly created directorships, and states that directors may be removed only for
cause and only by the affirmative vote of holders of at least two-thirds of the
outstanding shares of our voting stock voting together as a single class. These
provisions could discourage potential acquisition proposals and could delay or
prevent a change in control transaction. They could also discourage others from
making tender offers for our shares. As a result, these provisions may prevent
the market price of our common stock from reflecting the effects of actual or
rumored takeover attempts. These provisions may also prevent significant changes
in our board of directors and our management.
DELAWARE LAW MAY DETER POTENTIAL ACQUISITION BIDS FOR OUR BUSINESS, INCLUDING
BIDS WHICH MAY BE BENEFICIAL TO OUR STOCKHOLDERS
We are subject to the provisions of Delaware law which restrict certain
business combinations with interested stockholders even if such a combination
would be beneficial to stockholders. These
12
provisions may inhibit a non-negotiated merger or other business combination.
The anti-takeover provisions of the Delaware General Corporation Law prevent us
from engaging in a "business combination" with any "interested stockholder" for
three years following the date that the stockholder became an interested
stockholder. For purposes of Delaware law, a "business combination" includes a
merger or consolidation involving us and the interested stockholder and the sale
of more than 10% of our assets. In general, Delaware law defines an "interested
stockholder" as any entity or person beneficially owning more than 15% of the
outstanding voting stock of a corporation and any entity or person affiliated
with or controlling or controlled by such entity or person. Under Delaware law,
a Delaware corporation may opt out of the anti-takeover provisions. We do not
intend to opt out of these anti-takeover provisions.
OUR STOCK PRICE HAS BEEN AND MAY CONTINUE TO BE EXTREMELY VOLATILE
The trading price of our common stock has been and is likely to continue to
be extremely volatile. Our stock price could be subject to wide fluctuations in
response to a variety of factors, including the following:
- Actual or anticipated variations in our quarterly operating results
- Announcements of new products, product enhancements or services by us or
our competitors
- Changes in financial estimates or recommendations by securities analysts
- Changes in general market and economic conditions
- Announcements by us or our competitors of significant acquisitions,
strategic partnerships, joint ventures or capital commitments
- Developments in our industry and in the banking industry
- Sales of our common stock or other securities in the open market
- Other events or factors that may be beyond our control
We believe that factors such as quarterly fluctuations in financial results
or announcements by us, our competitors, banks and other bank industry
participants could cause the market price of our common stock to fluctuate
substantially. In addition, the stock market may experience extreme price and
volume fluctuations that often are unrelated to the operating performance of
specific companies. Market fluctuations or perceptions regarding the banking
industry and general economic or political conditions may adversely affect the
market price of the common stock. In the past, following declines in the market
price of a company's securities, securities class-action litigation often has
been instituted against that company. Litigation of this type, if instituted
against us, could result in substantial costs and a diversion of management's
attention and resources, which could have a material adverse effect on our
business.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common stock
offered by this prospectus.
13
SELLING STOCKHOLDERS
The selling stockholders received the shares of common stock listed below in
connection with a merger transaction pursuant to which we acquired Genisys
Operation, Inc. In connection with this acquisition, the selling stockholders
are parties to an Agreement and Plan of Merger, dated January 29, 1999, whereby
the selling stockholders placed in escrow certain shares issued to each of them
as collateral for their respective indemnification obligations under the merger
agreement. Pursuant to the terms and conditions of the Escrow Agreement, dated
January 29, 1999, between us and the selling stockholders, the shares held in
escrow, as set forth in the table below, will be released to the appropriate
stockholder if and to the extent we do not make any indemnification claims under
the escrow agreement. Accordingly, the selling stockholders may not sell the
shares held in escrow until such shares are released from the escrow.
The following table sets forth information with respect to the selling
stockholders, as of the date of this prospectus, including:
- The number of shares issued to each selling stockholder in connection with
the acquisition, exclusive of the shares held in escrow
- The applicable number of shares held in escrow for each selling
stockholder
- The total number and approximate percentage of shares beneficially owned
by each selling stockholder prior to the offering, assuming all the shares
are released from the escrow
- The total number of shares that may be sold under this prospectus,
assuming all the shares are released from the escrow
- Any material relationship that each of the selling stockholders has with
us through their affiliation with Genisys Operation, Inc., our
wholly-owned subsidiary
The selling stockholders will not own any shares of our common stock after
the completion of this offering, assuming all shares of common stock offered
pursuant to this prospectus are sold and the selling stockholders do not
purchase any additional shares of our common stock. There can be no assurance
that all or any of the shares offered hereby will be sold. The selling
stockholders will receive all of the net proceeds from the sale of the common
stock offered by this prospectus. Each selling stockholder has sole voting power
and investment power with respect to these shares. The address of the selling
stockholders listed below is c/o Genisys Operation, Inc., 1903 Central Drive,
Suite 1100, Bedford, Texas, 76021.
SHARES BENEFICIALLY OWNED PRIOR TO THE OFFERING
- -----------------------------------------------------------------------------------------------
NUMBER OF NUMBER OF
SHARES SHARES
ISSUED AS NUMBER OF TOTAL OFFERED BY RELATIONSHIP TO
OF JANUARY SHARES HELD NUMBER OF THIS GENISYS
NAME OF THE SELLING STOCKHOLDERS 29, 1999 IN ESCROW SHARES PERCENTAGE PROSPECTUS OPERATION, INC.
- ------------------------------------------ ----------- ----------- ---------- ------------- ----------- ----------------
Kevin J. Taylor........................... 242,411 26,933 269,344 1.5% 269,344 President
Ronald W. Kreykes......................... 224,114 24,902 249,016 1.3 249,016 Vice President,
Development
Patrick M. Rogal-Davis.................... 224,114 24,902 249,016 1.3 249,016 Vice President,
Development
Thomas R. Flannery........................ 224,114 24,902 249,441 1.3 249,016 Vice President,
Sales
Robert A. Walsh........................... 201,245 22,361 225,606 1.2 223,606 Vice President,
Sales
----------- ----------- ---------- -----------
Total:.................................... 1,115,998 124,000 1,242,423 1,239,998
----------- ----------- ---------- -----------
----------- ----------- ---------- -----------
14
We have agreed to use our reasonable best efforts to keep this registration
statement effective for a period of 180 days from the effective date of this
registration statement.
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholders. The selling stockholders will act
independently of us in making decisions with respect to the timing, manner and
size of each sale. The selling stockholders may sell the shares being offered
hereby on the Nasdaq National Market, or otherwise, at prices and under terms
then prevailing or at prices related to the then current market price or at
negotiated prices. Shares may be sold by one or more of the following means of
distribution:
- Block trades in which the broker-dealer so engaged will attempt to sell
such shares as agent, but may position and resell a portion of the block
as principal to facilitate the transaction;
- Purchases by a broker-dealer as principal and resale by such broker-dealer
for its own account pursuant to this prospectus;
- Over-the-counter distributions in accordance with the rules of the Nasdaq
National Market;
- Ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
- Privately negotiated transactions.
To the extent required, this prospectus may be amended and supplemented from
time to time to describe a specific plan of distribution. In connection with
distributions of such shares or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealer or other financial institutions. In
connection with such transactions, broker-dealer or other financial institutions
may engage in short sales of our common stock in the course of hedging the
positions they assume with the selling stockholders. The selling stockholders
may also sell our common stock short and redeliver the shares to close out such
short positions. The selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions which require
the delivery to such broker-dealer or other financial institution of the shares
offered hereby, which shares such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction). The selling stockholders may also pledge such shares to a
broker-dealer or other financial institution, and, upon a default, such
broker-dealer or other financial institution may effect sales of such pledged
shares pursuant to this prospectus (as supplemented or amended to reflect such
transaction). In addition, any such shares that qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus.
In effecting sales, brokers, dealers or agents engaged by the selling
stockholder may arrange for other brokers or dealers to participate. Brokers,
dealers or agents may receive commissions, discounts or concessions from the
selling stockholders in amounts to be negotiated prior to the sale. Such brokers
or dealers and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 in connection
with such sales, and any such commissions, discounts or concessions may be
deemed to be underwriting discounts or commissions under the Securities Act of
1933. We will pay all reasonable expenses incident to the registration of the
shares being offered hereby other than any commissions and discounts of
underwriters, dealers or agents.
In order to comply with the securities laws of certain states, if
applicable, the shares being offered hereby must be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states such shares may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and there has been compliance thereof.
15
We have advised the selling stockholders that the anti-manipulation rules of
Regulation M under the Securities Exchange Act of 1934 may apply to sales of
shares in the market and to the activities of the selling stockholders and their
affiliates. In addition, we will make copies of this prospectus available to the
selling stockholders and have informed them of the need for delivery of copies
of this prospectus to purchasers at or prior to the time of any sale of the
shares offered hereby. The selling shareholders may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act of
1933.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling
price to the public.
We have agreed to indemnify the selling stockholder and any person
controlling the selling stockholder against certain liabilities, including
liabilities under the Securities Act of 1933. The selling stockholders have
agreed to indemnify us and certain related persons against certain liabilities,
including liabilities under the Securities Act of 1933.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered by this
prospectus has been passed upon by Locke Liddell & Sapp LLP, Dallas, Texas.
Maurice E. Purnell, Jr., a partner of Locke Liddell & Sapp LLP, is the Secretary
of Carreker-Antinori, Inc.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended January 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
16
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1,239,998 SHARES
CARREKER-ANTINORI, INC.
COMMON STOCK
--------------
PROSPECTUS
--------------
JULY , 1999
You should rely only on information contained in this prospectus. We have
not authorized anyone to give any information or make any representations in
connection with this offering other than those contained in this prospectus. If
anyone gives you any such information or makes any such representations, you
should not rely on it or them as having been authorized by us. This prospectus
is not an offer to sell common stock and it is not soliciting an offer to buy
common stock in any state where the offer and sale is not permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of our common stock.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table indicates the estimated expenses to be incurred by
Carreker in connection with the offering described in the Registration
Statement:
Securities and Exchange Commission filing fee...................... $ 2,262
Printing and engraving fees........................................ 5,000*
Accountants' fees and expenses..................................... 4,500*
Legal fees and expenses............................................ 10,000*
Miscellaneous...................................................... 2,500*
---------
Total............................................................ $ 24,262*
---------
---------
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact that
he is or was a director, officer, employee or agent of Carreker may and, in
certain cases, must be indemnified by Carreker against, in the case of a
non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorney's fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
Carreker. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or agent
is liable to Carreker, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Article Eight of Carreker's Certificate of Incorporation provides that no
director of Carreker shall be liable to Carreker or its stockholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the DGCL.
Article Eight of Carreker's Certificate of Incorporation also provides that
Carreker may indemnify to the fullest extent permitted by Delaware law any and
all of its directors and officers, or former directors and officers, or any
person who may have served at Carreker's request as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise. In
addition, Section 7.07 of Carreker's Bylaws provides for similar indemnification
of officers and directors within the limits of Delaware law.
We have entered into indemnification agreements with each of our directors
and officers, pursuant to which, we do, to the extent permitted by applicable
law, indemnify such directors and officers against all expenses, judgments,
fines and penalties incurred in connection with the defense or settlement of any
actions brought against them by reason of the fact that they were our directors
or officers or assumed certain responsibilities at our direction. We have
purchased directors and officers liability insurance in order to limit our
exposure to liability for indemnification of our directors and officers.
Reference is made to the Agreement and Plan of Merger filed as Exhibit 2.1
hereto, pursuant to which the Holders (as defined therein) have agreed to
indemnify the officers, directors and legal counsel of Carreker against certain
liabilities under the Securities Act of 1933 or the Securities Exchange Act of
1934 in the event that the Registrable Securities (as defined therein) held by
such
II-1
Holders are included in the securities to be registered pursuant to a
registration statement filed with the Commission.
ITEM 16.(A) EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------------
2.1 Agreement and Plan of Merger, dated January 29, 1999, by and among
Carreker-Antinori, Inc., GO Acquisition Corp., Genisys Operation, Inc.,
and Kevin J. Taylor, Ronald W. Kreykes, Thomas R. Flannery, Robert A.
Walsh, and Patrick M. Rogal-Davis (incorporated by reference to Exhibit
2.1 to Carreker's Current Report on Form 8-K filed February 12, 1999).
2.2 List of Schedules and Attachments omitted from Exhibit 2.1, Agreement and
Plan of Merger (incorporated by reference to Exhibit 2.2 to Carreker's
Current Report on Form 8-K filed February 12, 1999).
+5.1 Opinion of Locke Liddell & Sapp LLP.
+23.1 Consent of Ernst & Young LLP.
+23.2 Consent of Locke Liddell & Sapp LLP ( included in opinion filed as Exhibit
5.1).
+24.1 Power of Attorney (included on first signature page).
- ------------------------
+ Filed herewith.
Carreker-Antinori, Inc. will furnish a copy of any exhibit listed above to any
stockholder without charge upon written request to Mr. James L. Dow, Senior Vice
President, Administration and Legal Affairs, 4055 Valley View Lane, Suite 1000,
Dallas, Texas 75244.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which any offers or sales are being made,
a post-effective amendment to the registraton statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any other material change to such information in
the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities being offered therein and the
offering of such securities at the time may be deemed to be the initial bonafide
offering thereof; and
(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.
(4) That, for purposes 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) 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.
II-2
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 Commission such indemnification is
against public policy as expressed by the Securities Act of 1933 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
II-3
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 of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 29th day of July,
1999.
CARREKER-ANTINORI, INC.
By: /s/ JOHN D. CARREKER, JR.
-----------------------------------------
John D. Carreker, Jr.
CHIEF EXECUTIVE OFFICER
II-4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John D. Carreker, Jr., James L. Dow and Terry L.
Gage, and each of them, such individual's true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such individual
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and any registration statement related to the offering contemplated by
this registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys in-fact and agents, 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 and to
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOHN D. CARREKER, JR. Chief Executive Officer
- ------------------------------ (Principal Executive July 29, 1999
John D. Carreker, Jr. Officer)
/s/ RICHARD L. LINTING
- ------------------------------ President, Chief Operating July 29, 1999
Richard L. Linting Officer and Director
Executive Vice President,
/s/ TERRY L. GAGE Treasurer and Chief
- ------------------------------ Financial Officer July 29, 1999
Terry L. Gage (Principal Financial and
Accounting Officer)
- ------------------------------ Vice Chairman of the Board July 29, 1999
Ronald R. Antinori
/s/ JAMES D. CARREKER
- ------------------------------ Director July 29, 1999
James D. Carreker
/s/ JAMES L. FISCHER
- ------------------------------ Director July 29, 1999
James L. Fischer
/s/ RICHARD R. LEE, JR.
- ------------------------------ Director July 29, 1999
Richard R. Lee, Jr.
- ------------------------------ Director July 29, 1999
Larry J. Peck
- ------------------------------ Director July 29, 1999
David K. Sias
/s/ DONALD L. HOUSE
- ------------------------------ Director July 29, 1999
Donald L. House
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
2.1 Agreement and Plan of Merger, dated January 29, 1999, by and among Carreker-Antinori, Inc., GO
Acquisition Corp., Genisys Operation, Inc., and Kevin J. Taylor, Ronald W. Kreykes, Thomas R.
Flannery, Robert A. Walsh, and Patrick M. Rogal-Davis (incorporated by reference to Exhibit 2.1 to
Carreker's Current Report on Form 8-K filed February 12, 1999).
2.2 List of Schedules and Attachments omitted from Exhibit 2.1, Agreement and Plan of Merger (incorporated
by reference to Exhibit 2.2 to Carreker's Current Report on Form 8-K filed February 12, 1999).
+5.1 Opinion of Locke Liddell & Sapp LLP.
+23.1 Consent of Ernst & Young LLP.
+23.2 Consent of Locke Liddell & Sapp LLP (included in opinion filed as Exhibit 5.1).
+24.1 Power of Attorney (included on first signature page).
- ------------------------
+ Filed herewith.
Carreker-Antinori, Inc. will furnish a copy of any exhibit listed above to any
shareholder without charge upon written request to Mr. James L. Dow, Senior Vice
President, Administration and Legal Affairs, 4055 Valley View Lane, Suite 1000,
Dallas, Texas 75244.