UNITED STATES
Form 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2013.
[_] TRANSITION REPORT UNDER SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ________
Commission File No. 000-30152
PAYMENT DATA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 98-0190072 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 12500 San Pedro, Ste. 120, San Antonio, TX | 78216 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code (210) 249-4100
| Securities registered pursuant to Section 12(b) of the Act: | None. |
| Securities registered pursuant to Section 12(g) of the Act: | Common stock, par value $0.001 per share. |
| (Title of class) |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. [_] Yes o[X] Noþ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. [_] Yes o[X] Noþ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes þ[_] Noo
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). [X]Yes þ[_] Noo
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | Accelerated filer [_] | |||
| Non-accelerated filer | ||||
| Smaller reporting company [X] | ||||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). [_] Yes o[X] Noþ
The aggregate market value of the voting stock held by non-affiliates of the registrant as ofon June 28, 2013, the last business day of the registrant's second fiscal quarter,30, 2016, was approximately $3,527,999.28,$8,397,238 based on 48,999,9906,313,713 shares of the registrant’s common stock held by non-affiliates on June 28, 201330, 2016 at the closing price of $0.072$1.33 per share.share as reported on the NASDAQ Capital Market. For purposes of this computation, all officers, directors and 10% beneficial owners of the registrant are deemed to be affiliates. Such determination should not be deemed an admission that such officers, directors or 10% beneficial owners are, in fact, affiliates of the registrant.
As of March 24, 2014,15, 2017, the number of outstanding shares of the registrant's common stock was 137,224,398.
DOCUMENTS INCORPORATED BY REFERENCE:
Payment Data Systems, Inc.
FORM 10-K
For the Year Ended December 31, 2013
INDEX
FACTORS THAT MAY AFFECT FUTURE RESULTS
This Annual Report on Form 10-K and the documents incorporated herein by reference contain certain forward-looking statements as defined under the federal securities laws. Specifically, all statements other than statements of historical facts included in this Annual Report on Form 10-K regarding our financial performance, business strategy and plans and objectives of management for future operations and any other future events are forward-looking statements and based on our beliefs and assumptions. If used in this report, the words "anticipate," "believe," "estimate", "expect," "intend," and words or phrases of similar import are intended to identify forward-looking statements. Such statements reflect our current view with respect to future events and are subject to certain risks, uncertainties, and assumptions, including, but without limitation, those risks and uncertainties contained in the Risk Factors section of this Annual Report on Form 10-K and our other filings made with the SEC. Although we believe that our expectations are reasonable, we can give no assurance that such expectations will prove to be correct. Based upon changing conditions, any one or more of these events described herein as anticipated, believed, estimated, expected or intended may not occur. All prior and subsequent written and oral forward-looking statements attributable to our Company or persons acting on our behalf are expressly qualified in their entirety by this cautionary statement. We do not intend to update any of the forward-looking statements after the date of this Annual Report to conform these statements to actual results or to changes in our expectations, except as required by law.
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PART I
General
Payment Data Systems, Inc. was founded in July 1998 and incorporated in the State of Nevada. OurWe are an integrated payment solutions provider offering a range of customized services to merchants, billers, banks, service bureaus, and card issuers. We operate solely in the U.S. through our two operating entities, Payment Data Systems, Inc. and FiCentive, Inc., and our primary operations consist of functioning as a processor ofbusiness is processing electronic payments for other companies.companies including all types of Automated Clearing House or “ACH” processing, credit, prepaid card and debit card-based processing. In our 18-year history, we have created a loyal customer base that rely on us for our convenient, secure, innovative and adaptive services and technology, and we have built long-standing and valuable relationships with premier banking institutions such as Fifth-Third Bank, Sunrise Bank, and Wells Fargo.
Payment Data Systems, Inc. We provide integrated electronic payment processing services to merchants and businesses, including all types of Automated Clearing House (ACH) processing, and credit and debit card-based processing services.services and transaction processing via the ACH network. The ACH network is a nationwide electronic funds transfer system that is regulated by the Federal Reserve and NACHA, – The Electronic Payments Associationthe electronic payments association, and provides for the clearing of electronic payments between participating financial institutions. Our ACH processing services enable merchants or businesses to both disburse and collect funds electronically using e-checks to transfer funds instead of traditional paper checks. An e-check is an electronic debit to a bank checking account that is initiated at the point-of-sale, on the Internet, over the telephone, or via a bill payment sent through the mail, and ise-checks are processed using the ACH network.
Our card-based processing services enable merchants to process both traditional card-present, or "swipe," transactions, as well as card-not-present transactions. A traditional card-present transaction occurs whenever a cardholder physically presents a credit or debit card to a merchant at the point-of-sale. A card-not-present transaction occurs whenever the customer does not physically present a payment card at the point-of-sale and may occur over the Internet, mail, fax or telephone.
Our electronic payment processing may take place in a variety of forms and situations. For example, our capabilities allow merchants to convert a paper check to an e-check or receive card authorization at the point-of-sale, allow our merchants’ respective customer service representatives to take e-check or card payments from their consumers by telephone, and enable their consumers to make e-check or card payments directly through the use of a web site or by calling an Interactive Voice Responseinteractive voice response telephone system. We alsoIn addition, we operate an online payment processing service, under the domain name www.billx.com system, which allows consumers to process online payments to pay any other individual, including family and friends.
FiCentive, Inc. We also provide prepaid card processing services for merchants and consumers through our wholly-owned subsidiary, FiCentive, Inc. We offer MasterCard prepaid cards branded with our customers’ corporationscorporation logos or trademarks. These prepaid cards can be used for various applications including payroll, corporate incentives, employee incentives, and general use. Some card programs allow the cards to be reloaded with funds, while others do not have that capability. In some cases, the cards can be used at Automatic Teller Machines, or ATMs, to withdraw cash.
Through our acquisition of the dollar amountassets of each transactionAkimbo Financial, Inc., in December 2014, we also added a highly talented technical staff of industry subject matter experts and in some instances, additional fees are chargedan innovative cardholder service platform with new and significant prepaid card front-end technology including mobile applications. We offer prepaid cards directly to consumers for each transaction. We charge other merchant customersuse as a flat fee per transaction,tool to stay on budget, manage allowances and may also charge miscellaneous feesshare money with family and friends, and businesses use the Akimbo platform to our customers, including fees for returns, monthly minimums, and other miscellaneous services. We charge consumers that use our billx.com online payment servicedeliver a flat monthly fee that allows them to make a certain numberwide variety of payments from rewards and incentives to regular payroll. The Akimbo platform provides instant issuance and real-time delivery of gift and incentive cards. The Akimbo card program operates on the MasterCard and associated networks. The sponsoring bank is Sunrise Banks, N.A. The Akimbo MasterCard program became live on our processing platform in a month. We also charge theseearly April 2015. The Akimbo platform includes Akimbo Now for businesses, Akimbo Gift for consumers an additional feeand support for each payment that exceeds the contracted allowed number of payments in a given month. We operate solely in the United States as a single operating segment.
Our website is www.paymentdata.com.websites are www.paymentdata.com, www.ficentive.com, www.akimbocard.com, and www.zbill.com. Information contained inon our websitewebsites does not constitute part of this annual report.
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Industry Background
In the United States, the use of non-paper based forms of payment, such as credit and debit cards, has risen steadily over the past several years. According to a 20102016 Federal Reserve Payments study, the estimated number of non-cash payments increased 5.3% per year from 2012 to 2015, and totaled $108.9144.1 billion in 2009, with a2015. The total value of $72.3 trillion. From 2006 to 2009, ACH,all non-cash payments was $178 trillion in 2015, up almost $17 trillion since 2012. The number of debit cardscard payments, including payments with prepaid and prepaidnon-prepaid cards, grew at a compoundan annual growth rate of 9.3%, 14.8%7.1% from 2012 to 2015 to 69.5 billion in 2015 and 21.5%, respectively, whilea dollar value of $2.56 trillion. The number of credit card growth remained relatively flat (down 0.2%)payments grew at an annual rate of 8.0% from 2012 to 2015 to 33.8 billion in 2015 and usea dollar value of paper checks declined by 7.2%.$3.16 trillion. The number of ACH payments grew at an annual rate of 4.9% from 2012 to 2015 to 23.5 billion in 2015 and a dollar value of $145.30 trillion. Electronic payments, including payments made with cards and ACH, now collectively exceed three-quartersrepresent 85% of all non-cash payments. Banking and financial institutions enable their account holders to use more check image deposit services which is also referred to as “remote deposit capture.” As a result, traditional paper trails are being replaced by speedier, more cost-effective and eco-friendly image exchanges.
The growth of electronic commerce has made the acceptance of card-based and other electronic forms of payment a necessity for businesses, both large and small, in order to remain competitive. We believe that the electronic payment processing industry will continue to benefit from the following trends:
Favorable Demographics
As consumers age, we expect that they will continue to use the payment technology to which they have grown accustomed. More consumers are beginning to use card-based and other electronic payment methods for purchases at an earlier age. As theseThese consumers a demographic whom have witnessed the wide adoption of card products, technology innovations such as mobile phone payment applications, and widespread adoption of the Internet,Internet. They comprise a greateran increasing percentage of the population and increasinglyas they enter the work force, we expect purchases using electronic payment methods will comprise an increasingbecome a larger percentage of total consumer spending. Because of the increasing adoption rate of the Internet, businesses have a growing opportunity to conduct commerce with their consumers and business partners over the Internet. We believe the increasing usage of smartphonessmart phones as an instrument of payment will also create further opportunities for us in the future.
Increased Electronic Payment Acceptance by Small Businesses
Small businesses are a vital component of the U.S. economy and are expected to contribute to the increased use of electronic payment methods. The lower costs associated with electronic payment methods are making these services more affordable to a larger segment of the small business market. In addition, we believe these businesses are experiencing increased pressure to accept electronic payment methods in order to remain competitive and to meet consumer expectations. As a result, many of these small businesses are seeking to provide customers with the ability to pay for merchandise and services using electronic payment methods, including those in industries that have historically accepted cash and checks as the only forms of payment for their merchandise and services.
Growth in Online Transactions
Market researchers expect continued growth in card-not-present transactions due to the steady growth of the Internet and electronic commerce. According to the U.S. Census Bureau, estimated retail e-commerce sales for 20132016 were $263.3$394.9 billion, an increase of approximately 17%15.1% from $225.5 billion in 2012. We believe the prevalence of the Internet makes having an online presence a basic and necessary consideration for those operating a business today.
Forrester Research expects that e-commerce sales in the United States will keep growing at a 10%9.5% compound annual growth rate through 2014,2018, translating to online retail sales of $250$414 billion in 2018, up from $194$263 billion in 2011.2013. Companies, both large and small, continue to leverage the Internet in order to remain competitive, improve operational efficiencies, create new revenue streams and maximize the longevity and profitability of their customer relationships.
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Products and Services
All of our service offerings are supported by our systems’ infrastructure that integrates certain proprietary components with processing systems outsourced to third-party providers to offer our customers a flexible and secure payment process. We utilize a secure sockets layer architecture so that connections and information are secure from outside inspection. We also use 128-bit encryption for all electronic transactions that we process to make information unreadable as it passes over the Internet. Our systems’ infrastructure allows us to work with our customers to build a customized electronic payment service offering tailored to their specific needs. We have designed and implemented our integrated payment systems to function as gateways between our customers and our third-party processing providers. Our systems provide for interfaces with our customers through which payment data is captured electronically and transferred through the connections we have with our processing providers. Our systems also provide a data warehousing capability so that all of payment data related to a customer can be stored in one place to facilitate efficient data retrieval and analysis. All confidential data stored within and outside the data warehouse is fully encrypted. We outsource our ACH transaction processing and card-based transaction processing to third-party providers. Our card-based processing system is capable of connecting with all of the major card-based processors in the United States.
Payment Processing.The components of our service offerings include all forms of ACH transaction processing, such as Represented Check, which is a consumer non-sufficient funds check that is representedpresented for payment electronically rather than through the paper check collection system, and Accounts Receivable Check Conversion, which is a consumer paper check payment that is converted into an e-check. Our customers can initiate ACH transactions directly using an online terminal accessible through a website or we can initiate ACH transactions on their behalf. Our service offering also includes merchant account services for the processing of card-based transactions through the VISA, MasterCard, American Express, Discover, and JCB networks, including online terminal services accessed through a web site or retail services accessed via a physical terminal. We offer a proprietary web-based customer service application that combines both ACH and card processing capabilities that allows companies to process one-time and recurring payments via e-checks or credit cards at the request of their consumers. In addition, we offer an Interactive Voice Response telephone system to companies that accept payments directly from consumers over the telephone using e-checks or credit cards.
In addition to these electronic payment services,October 2015, we are a prepaid card program managerintroduced e-check verification technology, which helps merchants prevent returns before processing and prepaid card processor. We develop and manage prepaid card programs on behalf of corporate clients whom have customers that have a need for prepaid cards that are branded with the entity’s unique logo. We hold a bank sponsorship agreement with Sunrise Banks, N.A. formerly known as University National Bank for our prepaid card program and started issuing cards in conjunction with the bank in October 2011. We also have the ability to issue Discover, American Express, Visa, and MasterCard prepaid credit cards. We primarily create, manage and process prepaid card programs for corporate clients, tailored to each client’s unique objectives to allow the client to issue prepaid cards to their customer base or employees as an incentive in the form of a rebate, commission, or other incentive. We also issue general purpose reloadable cards to consumers as an alternative to a traditional bank account. We believe our prepaid card product offering is competitive due toreduces return check transactions. This service utilizes our proprietary systemsreturns database that contains records for any transaction that we had previously attempted to process and the abilitytransaction was unsuccessful for account closed, invalid account, non-sufficient funds, payment stopped, frozen account, unauthorized account, and others. Merchants are allowed to implement corporate-branded card programsquery this database in advance of submitting a shorter time frame than most of our competitors. We believe our eight years of experience intransaction for processing and managing prepaid card programs issettlement. Merchants utilize this data to make their own determination if they wish to process a competitive advantage over many of our competitors due to the industry being relatively new.
We also operate a consumer web site focused on providing bill payment services under the domain name www.billx.com, and manage all of the related back-end processing through our own proprietary processing engine. Consumers subscribe to the payment service and are allowed to make a certain number of payments each month for a flat monthly fee and are assessed a separate fee for any additional payments made over the limit. Our online payment processing service seeks to provide consumers with an efficient and secure interface for paying and managing bills via the Internet. We also sell this payment portal service as a private label solution to online financial services providers looking to provide online bill payment capabilities as part of their service offering to consumers. We also offer this service to other debit card issuers, as we are able to utilize the bill payment component of this service for payments made via debit cards, a patented process for which we own a perpetual license.
In 2016, we continued to innovate our payment systems by launching 1) a brand new client facing web application that allows customers to more easily manage their payments; 2) an Apple iOS Software Development Kit, or SDK, that enables developers to easily integrate payment acceptance into their apps; and 3) new PIN-less debit services that allow merchants to debit and credit accounts in real time. We also added several consumer mortgage loan servicers as our customers for whom we process payments.
Prepaid and Incentive Cards. In addition to these electronic payment services, we are a prepaid card program manager and prepaid card processor. We develop and manage prepaid card programs on behalf of corporate clients who have customers that want prepaid cards that are branded with the entity’s unique logo. We started issuing cards in October 2011 and hold bank sponsorship agreements with Sunrise Banks, N.A., formerly known as University National Bank, and Metropolitan Commercial Bank for our prepaid card program. We also have the ability to issue Discover, American Express, Visa, and MasterCard prepaid cards. We primarily create, manage and process prepaid card programs for corporate clients, tailored to each client’s unique objectives to allow the client to issue prepaid cards to their customer base or employees as an incentive in the form of a rebate, commission, or other incentive. We also issue general purpose reloadable cards to consumers as an alternative to a traditional bank account under the Akimbo and Stream card brands. We believe our prepaid card product offering is competitive due to our proprietary systems and the ability to implement corporate-branded card programs in a shorter time frame than most of our competitors. We believe our more than ten years of experience in processing and managing prepaid card programs is a competitive advantage over many of our competitors due to the industry being relatively new. Also, there is a significant barrier in obtaining bank sponsorship to prepaid card program management and even a higher barrier to performing prepaid card processing.
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Relationships with Sponsors and Processors
We have agreements with several processors that provide to us, on a non-exclusive basis, transaction processing and transmittal, transaction authorization and data capture, and access to various reporting tools. In order to provide payment processing services for ACH transactions, we must maintain a relationship with an Originating Depository Financial Institution, (ODFI)or ODFI, in the Automated Clearing House, (ACH)or ACH, network because we are not a bank and therefore we are not eligible to be an Originating Depository Financial Institution. For the ODFI portion of our ACH business, we have entered into agreements with the Fifth Third Bank the National Bank of California and Generations, Federal Credit Union. In March of 2013, we terminated our agreement with National Bank of California.Union and North American Banking Company, or NABC. We are financially liable for all fees, fines, chargebackscharge backs and losses related to our ACH processing merchant customers. We may also require cash deposits and other types of collateral from certain merchants to mitigate any such risk. Similarly, in order to provide payment-processing services for Visa, MasterCard and Discover transactions, we must be sponsored by a financial institution that is a principal member of the respective Visa, MasterCard and Discover card associations. MerrickCentral Bank of St. Louis and HSBCWells Fargo Bank have, respectively, sponsored us under the designations Third Party Processor, (TPP)or TPP, and Independent Sales Organization, (ISO)or ISO with the Visa card association, and under the designations Third Party Servicer, (TPS)or TPS, and Merchant Service Provider, (MSP)or MSP, with the MasterCard card association. We have an agreement with TriSource Solutions, LLC and an agreement with Global Payments, Inc. through which their member banks, (MerrickCentral Bank of St. Louis and HSBC)Wells Fargo, sponsor us for membership in the Visa, MasterCard, American Express, and Discover card associations and settle card transactions for our merchants. These agreements may be terminated by the processor if we materially breach the agreements and we do not cure the breach within 30 days, or if we enter bankruptcy or file for bankruptcy. We also maintain a bank sponsorship agreement with Sunrise Banks, N.A,N.A., formerly known as University National Bank, and Metropolitan Commercial Bank for our prepaid card programs. We are liable for any card-associated losses for cards that we issue that might incur a negative balance and we are liable for card association fines, fees and chargebacks.
Under our processing agreement with TriSource Solutions, we are financially liable for all fees, fines, chargebacks and losses related to our card processing merchant customers. Under our processing agreement with Global Payments, Inc., we are not financially liable for all fees, chargebacks and losses related to our card processing merchant customers, but we are liable for potential card association fines. If, due to insolvency or bankruptcy of our merchant customers, or for another reason, we are unable to collect from our merchant customers amounts that have been refunded to the cardholders because the cardholders properly initiated a chargeback transaction to reverse the credit card charges, we must bear the credit risk for the full amount of the cardholder transaction. We utilize a number of systems and procedures to evaluate and manage merchant risk, such as obtaining approval of prospective merchants from our processor and sponsor bank, setting transaction limits and monitoring account activity. We may also require cash deposits and other types of collateral from certain merchants to mitigate any such risk. We maintain a reserve for losses resulting from card processing and related chargebacks. We estimate our potential loss for chargebacks by performing a historical analysis of our chargeback loss experience with similar merchants and considering other factors that could affect that experience in the future, such as the types of card transactions processed and nature of the merchant relationship with their consumers.
We are sponsored by Pueblo Bank and Trust to access certain regional debit networks. Through this sponsorship we created a new service in late 2016 to provide both the issuance of real time credits and debits to a debit card holder via a regional network without having a PIN. Regional networks are not affiliated with major credit card associations and operate independently. Through our sponsorship with Pueblo Bank and Trust, we are financially liable for all fees, fines, charge backs and losses related to our PIN-less debit card processing for our merchant customers. We may also require cash deposits and other types of collateral from certain merchants to mitigate any such risk. The banking sponsor and each of the regional debit networks have the ability to terminate our access or anyone of our merchant’s access to process payments without notice. If either case occurs, our revenue could be negatively affected.
We maintain a separate allowance for estimated losses resulting from the inability or failure of our merchant customers to make required payments for fees charged by us. Amounts due from customers may be deemed uncollectible because of merchant disputes, fraud, insolvency or bankruptcy. We determine the allowance based on an account-by-account review, taking into consideration such factors as the age of the outstanding receivable, historical pattern of collections and financial condition of the customer. We closely monitor extensions of credit and if the financial condition of our customers were to deteriorate, resulting in an impairment of their ability to make contractual payments, additional allowances may be required.
Sales and Marketing
We market and sell our products and services through direct contact by our sales personnel, as well asprimarily through non-exclusive resellers that act as an external sales force, with minimal direct investment in sales infrastructure and management.management, as well as direct contact by our sales personnel. Our direct sales effort isefforts are coordinated by a sales executive and supported by other employees who function in sales capacities. Our primary market focus is on companies generating high volumes of electronic payment transactions. We tailor our sales efforts to reach this market by pre-qualifying prospective sales leads through direct contact or market research. Our sales personnel typically initiate contact with prospective customers that we identify as meeting our target customer profile. We also plan to market and sell our prepaid card program directly to corporations and to consumers through the Internet. We intend to continue to analyze our sales and marketing efforts in order to control costs, increase the effectiveness of our sales force, and broaden our reach through reseller initiatives and advantageous alliances.
Customers
Our primary customers are merchants and businesses that use our Automated Clearing House and/or card-based processing services in order to provide their consumers with the ability to pay for goods and services without having to use cash or a paper check. These merchant customers operate in a variety of retail industries and are under contract with us to exclusively use the services that we provide to them. Recently, we expanded our customers to include churches, charitable organizations, medical and dental clinics, property management and homeowner’s associations, hospitality and municipalities. Most of our merchant customers have signed long-term contracts, generally with three-year terms, that provide for volume-based transaction fees. Our merchant accounts increaseddecreased to 735710 customers at December 31, 20132016 from 711768 customers at December 31, 2012.
No other customer accounted for more than 10% of revenues in 2013.
All of our customers, including those utilizing our billx.com Internet bill payment service on a recurring monthly basis to pay household bills, are consumers geographically dispersed throughout the United States. The service relationship between our billx.com customers and us is not contractual and the fee we charge for the service is not negotiable. We seek to retain customers by providing high levels of customer service. Customers also have incentive to continue using the service once activated due to their investment of time in setting up the service with their personal banking and payment information. The monthly average number of billx.com customers using our online payment service decreased to 86438 in 2013 from 2,8762016 compared to 197 in 2012.2015.
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Competition
The payment processing industry is highly competitive. Many small and large companies compete with us in providing payment processing services and related services to a wide range of merchants. There are a number of large transaction processors, including First Data Merchant Services Corporation, EvalonElavon Inc., and Vantive,Vantiv, Inc. that serve a broad market spectrum from large to small merchants and provide banking, automatic teller machine, and other payment-related services and systems in addition to card-based payment processing. There are also a large number of smaller transaction processors that provide various services to small and medium-sized merchants. Many of our competitors have substantially greater capital resources than us and operate as subsidiaries of financial or bank holding companies, which may allow them on a consolidated basis to own and conduct depository and other banking activities that we do not have the regulatory authority to own or conduct. We believe that the principal competitive factors in our market include:
| · | quality of service; |
| · | reliability of service; |
| · | ability to evaluate, undertake and manage risk; |
| · | ability to offer customized technology solutions; |
| · | speed in implementing payment processes; |
| · | price and other financial terms; and |
| · | multi-channel payment capability. |
We believe that our specific focus on providing integrated payment processing solutions to merchants, in addition to our understanding of the needs and risks associated with providing payment processing services electronically, gives us a competitive advantage over other competitors, which have a narrower market perspective, and over competitors of a similar or smaller size that may lack our experience in the electronic payments industry. Furthermore, we believe we present a competitive distinction through the use of our internal technology to provide a single integrated payment storage or warehouse that consolidates, processes, tracks and reports all payments regardless of payment source or channel.
Our prepaid card offering is competitive due to our proprietary systems and our ability to create and establish corporate-branded card programs in a shorter time frametimeframe than most of our competitors. We also believe our eightmore than ten years of experience in processing and managing prepaid card programs is a competitive advantage over many of our competitors due to the industry being relatively new.
Trademarks
We own federally registered trademarks on the markmarks “Payment Data Systems, Inc.,” “Akimbo,” “FiCentive Innovations in Prepaid Card Solutions,” “Don’t change your bank, just your card” and its“ZBILL” and their respective design.designs. We have also secured, among others, domain name registrations for:
| · debitpin.com; | · nsfdebit.com; | |||
| · akimbocard.com; | · debitservice.com; | · omegabill.com; | ||
| · akimbodeals.com; | · electragift.com; | · parishiltoncard.com; | ||
| · akimbodebit.com; | · ficentive.com; | · paymentdata.com; | ||
| · akimboit.com; | · fotogiftcards.com | · paymentdata.org; | ||
| · akimbonews.com; | · getcarmen.com; | · paymentdatasystems.com; | ||
| · akimbonow.com | · gogreenmastercard.com; | · paymentrecovery.com; | ||
| · akimboprepaid.com; | · iremotepay.com; | · paymentrecoverysystems.com; | ||
| · bill4u.com; | · iremotepay.net; | · pd.sadmin.com | ||
| · billhelp.com; | · iremotepayments.com | · pdsnetwork.com; | ||
| · billserv.com; | · itshotcard.com; | · pftgateway.com | ||
| · billx.com; | · kindhand.com; | · prepaidload.com; | ||
| · britneycard.com; | · merchandisemastercard.com; | · primacard.com; | ||
| · carddeposit.com | · mipromesa.com; | · securepds.com; | ||
| · carmencard.com; | · myakimbo.com; | · stardebit.com; | ||
| · clinicpay.com; | · nataliecard.com; | · streamprepaid.com; | ||
| · creditcardgateway.com; | · nataliegiftcard.com; | · thatshotcard.com; | ||
| · crpds.com; | · nataliegulbiscard.com; | · viewbill.com; | ||
| · danicacard.com; | · nataliegulbismastercard.com; | · ybill.com; and | ||
| · debitmax.com; | · newsakimbo.com; | · zbill.com. |
We rely on a combination of copyright, trademark and trade secret laws, employee and third-party nondisclosure agreements, and other intellectual property protection methods to protect our services and related products.
Patents
On January 11, 2008, we executed an agreement to sell selected patents and patent applications, including U.S. Patent No. 7,021,530, to PCT Software Data, LLC for net proceeds of approximately $750,000. The patents and patent applications sold relate to bill payments made with debit and stored value cards. We retained a worldwide, non-exclusive license under the patents for use with all current and future customers.
Government Regulation
Our industry is highly regulated. Any new or changes made to U.S. federal, state and local laws, regulations, card network rules or other industry standards affecting our business may require significant development efforts or have an unfavorable impact to our financial results. For example,Failure to comply with these laws and regulations may result in the United States, suspension or revocation of licenses or registrations, the limitation, suspension or termination of services and/or the imposition of civil and criminal penalties, including fines. Certain of our services are also subject to rules set by various payment networks, such as Visa and MasterCard.
The Dodd-Frank Act
President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act, (the “Dodd-Frank Act”)or the Dodd-Frank Act, into law on July 21, 2010. The Dodd-Frank Act caused significant structural reforms to the financial services industry. The lawDodd-Frank Act regulates the fees charged or received by issuers for processing debit transactions and the transaction routing options available to merchants. On June 29, 2011,The Dodd-Frank Act also established the Consumer Financial Protection Bureau to regulate consumer financial services, including many offered by our customers. Additionally, the Durbin Amendment to the Dodd-Frank Act provided that interchange fees that a card issuer or payment network receives or charges for debit transactions will now be regulated by the Federal Reserve Board adoptedand must be “reasonable and proportional” to the final rule implementingcost incurred by the interchange feecard issuer in authorizing, clearing and settling the transaction. In addition, the Durbin Amendment contains prohibitions on network exclusivity and merchant routing provisions in the Dodd-Frank Act. restrictions.
The Dodd-Frank Act, when implemented in September 2011, caused interchange fees to be lowered on large bank-issued debit cards. The lowered interchange fees had a mild negative impact on our revenues, but increased our earnings due to the fact that we were able to keep our prices constant with our merchants. If our competitors start to pass the extra margin into savings to their merchants, we may be forced to follow their actions and become exposed to lower earnings on the debit card transactions for large banks. Our prepaid cards, while some of the transactions are processed on debit networks, are currently exempt from the Dodd-Frank Act.
CARD Act
As an agent of, and third-party service provider to, our issuing banks, we are subject to indirect regulation and direct audit and examination by the Office of Thrift Supervision, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, or FRB, and the Federal Deposit Insurance Corporation.
On March 23, 2010, the FRB issued a final rule implementing Title IV of the Credit Card Accountability, Responsibility, and Disclosure Act of 2009, or CARD Act, which imposes requirements relating to disclosures, fees and expiration dates that are generally applicable to gift certificates, store gift cards and general-use prepaid cards. We believe that our general purpose reloadable prepaid cards, and the maintenance fees charged on our general purpose reloadable cards, are exempt from the requirements under this rule, as they fall within an express exclusion for cards which are reloadable and not marketed or labeled as a gift card or gift certificate. However, this exclusion is not available if the issuer, the retailer selling the card to a consumer or the program manager, promotes, even if occasionally, the use of the card as a gift card or gift certificate. As a result, we provide retailers with instructions and policies regarding the display and promotion of our general purpose reloadable cards. However, it is possible that despite our instructions and policies to the contrary, a retailer engaged in offering our general purpose reloadable cards to consumers could take an action with respect to one or more of the cards that would cause each similar card to be viewed as being marketed or labeled as a gift card, such as by placing our general purpose reloadable cards on a display which prominently features the availability of gift cards and does not separate or otherwise distinguish our general purpose reloadable cards from the gift cards. In such event, it is possible that such general purpose reloadable cards would lose their eligibility for such exclusion to the CARD Act and its requirements, and therefore could be deemed to be in violation of the CARD Act and the rule, which could result in the imposition of fines, the suspension of our ability to offer our general purpose reloadable cards, civil liability, criminal liability, and the inability of our issuing banks to apply certain fees to our general purpose reloadable cards, each of which would likely have a material adverse impact on our revenues.
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In 2014, we resumed issuing gift cards. Any gift cards we issue will be governed by the CARD Act and other various regulations. Any violations with our gift card issuance could result in the imposition of fines, the suspension of our ability to offer our gift cards, civil liability, criminal liability, and the inability of our issuing banks to apply certain fees to our gift cards, each of which would likely have a material adverse impact on our revenues.
Anti-Money Laundering and Counter Terrorist Regulation
Our business is subject to U.S. federal anti-money laundering laws and regulations, including the Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, or collectively, the BSA. The BSA, among other things, requires money services businesses to develop and implement risk-based anti-money laundering programs, report large cash transactions and suspicious activity and maintain transaction records.
We are also subject to certain economic and trade sanctions programs that are administered by the Treasury Department’s Office of Foreign Assets Control, or OFAC, that prohibit or restrict transactions to or from or dealings with specified countries, their governments and, in certain circumstances, their nationals, narcotics traffickers, and terrorists or terrorist organizations.
Similar anti-money laundering, counter terrorist financing and proceeds of crime laws apply to movements of currency and payments through electronic transactions and to dealings with persons specified on lists maintained by organizations similar to OFAC in several other countries and which may impose specific data retention obligations or prohibitions on intermediaries in the payment process.
Prepaid Services
Prepaid card programs managed by us are subject to various federal and state laws and regulations, which may include laws and regulations related to consumer and data protection, licensing, consumer disclosures, escheat, anti-money laundering, banking, trade practices and competition and wage and employment. As regulations evolve or change we may be required to obtain state licenses to expand our distribution network for prepaid cards, which licenses we may not be able to obtain. Furthermore, the CARD Act and the Federal Reserve’s Regulation E impose requirements on general-use prepaid cards, store gift cards and electronic gift certificates. These laws and regulations are evolving, unclear and sometimes inconsistent and subject to judicial and regulatory challenge and interpretation, and therefore the extent to which these laws and rules have application to, and their impact on, us, financial institutions, merchants or others are in flux. At this time we are unable to determine the impact that the clarification of these laws and their future interpretations, as well as new laws, may have on us, financial institutions, merchants or others in a number of jurisdictions. Prepaid services may also be subject to the rules and regulations of Visa, MasterCard and other payment networks with which we and the card issuers do business. The programs in place to process these products generally may be modified by the payment networks at their discretion and such modifications could also impact us, financial institutions, merchants and others.
Employees
As of December 31, 2013,2016, we had 1021 full-time employees. We are not a party to any collective bargaining agreements. We believe that our relations with our employees are very good.
Available Information
Our website is located at www.paymentdata.com. We make available on our website, free of charge, copies of our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports, as applicable and as soon as reasonably practicable after we electronically file or furnish such materials to the U.S. Securities and Exchange Commission. Our website and the information contained therein or connected thereto are not intended to be incorporated into this annual report on Form 10-K.
You may also read and copy any materials we file with the SEC at the SEC’s Public Reference Room, located at 100 F Street, N.E., Washington, DC 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at http://www.sec.gov.
An investment in our common stock involves a high degree of risk. You should carefully consider the following risk factors and other information included in this annual report on Form 10-K. If any of the following risks actually occur, our business, financial condition or results of operations could be materially and adversely affected and you may lose some or all of your investment.
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RISKS RELATED TO OUR BUSINESS
Loss of key resellers could reduce our revenue growth.
Our reseller sales channel, which purchases and resells our end-to-end services to its own portfolio of merchant customers, is a strong contributor to our revenue growth. If a reseller switches to another transaction processor, shuts down, becomes insolvent, or enters the processing business themselves, we may no longer receive new merchant referrals from the reseller, and we risk losing existing merchants that were originally enrolled by the reseller, all of which could negatively affect our revenues and earnings.
On February 1, 2016, our referral agreement with Shelby Systems, a provider of Church Management Systems, lapsed without renewal. Under the contract Shelby would introduce churches to our payment processing service and we would pay Shelby a percentage of the monthly revenue from the church. Each church would sign a payment processing agreement directly with us, not with Shelby. Revenue from referrals from Shelby represented approximately 17% of our revenue in 2015 and 2.3% of our total dollar volume processed in 2015. In 2016, we received no new referrals from this reseller, but retained customers represented approximately 15% of our 2016 revenue and 2% of our total 2016 dollar volume processed. On March 1, 2016, we were granted a temporary restraining order against Shelby Systems, Inc. by the past and may incur additional losses.
We may continue to incur future operating losses. We may need to raise additional capital to pursue product development initiatives and to penetrate markets fornot close the sale of our products inSingular Payments, LLC acquisition or realize the future. We believeanticipated opportunities.
On March 13, 2017, we announced that we have accessentered into a non-binding letter of intent to capital resources through possible publicacquire Singular Payments, LLC, a Florida limited liability company. Singular Payments has agreed to work with us on an exclusive basis until the transaction is consummated or private equity offerings, debt financings, corporate collaborationsterminated. The acquisition is contingent on the successful outcome of due diligence, the signing of a mutually agreed upon acquisition agreement and the completion of other steps. Each of these factors, or other means. If we are unablea combination thereof, may cause us or Singular Payments to secure additional capital,abandon the transaction and we may be required to curtail our researchnot close on the acquisition and development initiatives and take additional measures to reduce costs in order to conserve our cash in amounts sufficient to sustain operations and meet our obligations. These measures could cause significant delays in our efforts to expand our product offerings and customer base inrealize the United States, which are critical to the realization of our business plan and to future operations.
If our security applications are not sufficient to address changing market conditions and customer concerns, we may incur significant losses and be unable to sell our services.
Our use of applications designed for premium data security and integrity to process electronic transactions may not be sufficient to address changing market conditions or the security and privacy concerns of existing and potential customers. If our security applications are breached and sensitive data is lost or stolen, we could incur significant costs to not only assess and repair any damage to our systems, but also to reimburse customers for losses that occur from the fraudulent use of the data. We may also be subject to fines and penalties from the credit card associations or regulatory agencies in the event of the loss of confidential account information. Further, adverse publicity raising concerns about the safety or privacy of electronic transactions, or widely reported breaches of our or another provider's security, have the potential to undermine consumer confidence in the technology and could have a materially adverse effect on our business.
If we do not adapt to rapid technological change, our business may fail.
Our success depends on our ability to develop new and enhanced services and related products that meet changing customer needs. TheHowever, the market for our services however, is characterized by rapidly changing technology, evolving industry standards, emerging competition and frequent new and enhanced software, service and related product introductions. In addition, the software market is subject to rapid and substantial technological change. To remain successful, we must respond to new developments in hardware and semiconductor technology, operating systems, programming technology and computer capabilities. In many instances, new and enhanced services, products and technologies are in the emerging stages of development and marketing, and are subject to the risks inherent in the development and marketing of new software, services and products. We may not successfully identify new service opportunities, and develop and bring new and enhanced services and related products to market in a timely manner. Even if we do bring such services, products or technologies to market, they may not become commercially successful. Additionally, services, products or technologies developed by others may render our services and related products noncompetitive or obsolete. If we are unable, for technological or other reasons, to develop and introduce new services and products in a timely manner in response to changing market conditions or customer requirements, our business may fail.
We rely on our relationship with the Automated Clearing House network and if the Federal Reserve rules were to change, our business could be adversely affected.
We have contractual relationships with Fifth Third Bank, and Generations Federal Credit Union both ofand North American Banking Company, or NABC which are Originating Depository Financial Institutions in the Automated Clearing House network. The ACH network is a nationwide batch-oriented electronic funds transfer system that provides for the interbank clearing of electronic payments for participating financial institutions. An Originating Depository Financial Institution is a participating financial institution that must abide by the provisions of the ACH Operating Rules and Guidelines. Through our relationships with Fifth Third Bank, and Generations Federal Credit Union and NABC, we are able to process payment transactions on behalf of our customers and their consumers by submitting payment instructions in a prescribed ACH format. We pay volume-based fees to Fifth Third Bank, and Generations Federal Credit Union and NABC for debit and credit transactions processed each month, and pay fees for other transactions such as returns and notices of change to bank accounts. These fees are part of our agreed-upon cost structures with the banks. If the Federal Reserve rules were to change to introduce restrictions or modify access to the Automated Clearing House, our business could be materially adversely affected. Further, if either, two or bothall three of Fifth Third Bank, and Generations Federal Credit Union and NABC were to cancel our respective contract with the bank, our business could be materially affected. At this time, we believe we could find and enter into an agreementadditional agreements with anotherother bank sponsorsponsors on similar contractual terms, but no assurances can be made.
If our third-party card processing providers or our bank sponsors fail to comply with the applicable requirements of Visa, MasterCard and Discover credit card associations, we may have to find a new third-party processing provider, which could increase our costs.
Substantially all of the card-based transactions we process involve the use of Visa, MasterCard or Discover credit cards. In order to provide payment-processing services for Visa, MasterCard and Discover transactions, we must be sponsored by a financial institution that is a principal member of the respective Visa, MasterCard and Discover card associations. Both MerrickCentral Bank of St. Louis and HSBCWells Fargo Bank have sponsored us under the designations Third Party Processor, (TPP)or TPP, and Independent Sales Organization, (ISO)or ISO, with the Visa card association, and under the designations Third Party Servicer, (TPS)or TPS, and Merchant Service Provider, (MSP)or MSP, with the MasterCard card association. We have an agreement with TriSource Solutions, LLC and an agreement with Global Payments, Inc. through which their member banks, (MerrickCentral Bank of St. Louis and HSBC)HSBC, sponsor us for membership in the Visa and MasterCard card associations, and settle card transactions for our merchants. If our third-party processing provider, TriSource Solutions, LLC, or Global Payments, or our bank sponsors, MerrickCentral Bank of St. Louis or Wells Fargo Bank or HSBCPueblo Bank and Trust with our PINless debit card product, fail to comply with the applicable requirements of the Visa, MasterCard, and Discover card associations, Visa, MasterCard or Discover could suspend or terminate the registration of our third-party processing provider. Also, our contracts with both of these third parties isare subject to cancellation upon limited notice by either party. The cancellation of either contract, termination of their registration or any changes in the Visa, MasterCard or Discover rules that would impair the registration of our third-party processing provider could require us to stop providing such payment processing services if we are unable to enter into a similar agreement with another provider or sponsor at similar costs and upon similar contractual terms. Additionally, changing our bank sponsor could adversely affect our relationship with our merchants if the new sponsor provides inferior service or charges higher costs.
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We have incurred substantial losses in the past and may incur additional losses.
We reported a net loss of $1,196,642 for the year ended December 31, 2016 and net income of $1,016,088 for the year ended December 31, 2015. Including these results, we have an accumulated deficit of $50,251,641. Our future operating results are not certain. We may incur future operating losses. We may need to raise additional capital to pursue product development initiatives and to penetrate markets for the sale of our products in the future. We believe that we have access to capital resources through possible public or private equity offerings, debt financings, corporate collaborations or other means. If we are unable to secure additional capital, we may be required to curtail our research and development initiatives and take additional measures to reduce costs in order to conserve our cash in amounts sufficient to sustain operations and meet our obligations. These measures could cause significant delays in our efforts to expand our product offerings and customer base in the United States, which are critical to the realization of our business plan and to future operations.
Our prepaid card revenues from the sale of services to merchants that accept MasterCard cards are dependent upon our continued MasterCard registration and financial institution sponsorship and, in some cases, continued participation in certain payment networks.
In order to provide processing services for our MasterCard prepaid card program, we must be either a member of a payment network or be registered as a prepaid processor of MasterCard. Sunrise Banks, N.A,N.A., formerly known as University National Bank, hasand Metropolitan Commercial Bank have sponsored us under the designations Third Party Servicer, (TPS)or TPS, and Merchant Service Provider, (MSP)or MSP, with the MasterCard card association. Registration as a prepaid processor is dependent upon us being sponsored by member clearing banks. If our sponsor bankbanks should stop providing sponsorship for us, we would need to find another financial institution to provide those services or we would need to be a member, either of which could prove to be difficult and/or more expensive. If we are unable to find a replacement financial institution to provide sponsorship or become a member of the association, we may no longer be able to provide prepaid processing services to our MasterCard customers, which would negatively impact our revenues and earnings.
We may not realize the anticipated opportunities from the Akimbo acquisition.
On December 22, 2014, we acquired substantially all the assets of Akimbo Financial, Inc. The success of the Akimbo acquisition will continue to depend, in part, on our ability to realize the anticipated growth opportunities from integrating the acquired business with our business and banking sponsor, including integrating its services into our offering of products and services. Our success depends on the successful integration of our and the acquired business’s operations and information and financial systems. We cannot assure you that we will be able to realize such opportunities or that our management will not be distracted by the integration of the acquired business.
If we fail to comply with the applicable requirements of the respective card networks, they could seek to fine us, suspend us or terminate our registrations. If our merchants or Independent Sales Organizations (ISOs)ISOs incur fines or penalties that we cannot collect from them, we could end up bearing the cost of fines or penalties.
In order to provide our transaction processing services, we are registered with Visa, MasterCard and Discover as service providers and transaction processors for member institutions and with other networks. As such, we are subject to card association and network rules that could subject us to a variety of fines or penalties that may be levied by the card networks for certain acts or omissions. The rules of the card networks are set by their boards, which may be influenced by banks that own their stock and, in the case of Discover by the card’s issuers, and some of those banks and issuers are our competitors with respect to these processing services. The termination of our registrations or our status as a service provider or transaction processor, or any changes in card association or other network rules or standards, including interpretation and implementation of the rules or standards, that increase the cost of doing business or limit our ability to provide transaction processing services to our customers, could have a material adverse effect on our business, operating results and financial condition. If a merchant or one of our resellers fails to comply with the applicable requirements of the card associations and networks, it could be subject to a variety of fines or penalties that may be levied by the card associations or networks. If we cannot collect such amounts from the applicable merchant or one of our resellers, we could end up bearing such fines or penalties, resulting in lower earnings for us.
We are subject to extensive and complex federal and state regulation and new regulations and/or changes to existing regulations could adversely affect our business.
As an agent of, and third-party service provider to, our issuing banks, we are subject to indirect regulation and direct audit and examination by the Office of Thrift Supervision, or the OTS, the Office of the Comptroller of the Currency, or the OCC, the Board of Governors of the Federal Reserve System, or the FRB, and the Federal Deposit Insurance Corporation, or the FDIC.
On March 23, 2010, the FRB issued a final rule implementing Title IV of the Credit Card Accountability, Responsibility, and Disclosure Act of 2009, or CARD Act, which imposes requirements relating to disclosures, fees and expiration dates that are generally applicable to gift certificates, store gift cards and general-use prepaid cards. We believe that our general purpose reloadable prepaid cards, and the maintenance fees charged on our general purpose reloadable cards, are exempt from the requirements under this rule, as they fall within an express exclusion for cards which are reloadable and not marketed or labeled as a gift card or gift certificate. However, this exclusion is not available if the issuer, the retailer selling the card to a consumer or the program manager, promotes, even if occasionally, the use of the card as a gift card or gift certificate. As a result, we provide retailers with instructions and policies regarding the display and promotion of our general purpose reloadable cards. ItHowever, it is possible however, that despite our instructions and policies to the contrary, a retailer engaged in offering our general purpose reloadable cards to consumers could take an action with respect to one or more of the cards that would cause each similar card to be viewed as being marketed or labeled as a gift card, such as by placing our general purpose reloadable cards on a display which prominently features the availability of gift cards and does not separate or otherwise distinguish our general purpose reloadable cards from the gift cards. In such event, it is possible that such general purpose reloadable cards would lose their eligibility for such exclusion to the CARD Act and its requirements, and therefore could be deemed to be in violation of the CARD Act and the rule, which could result in the imposition of fines, the suspension of our ability to offer our general purpose reloadable cards, civil liability, criminal liability, and the inability of our issuing banks to apply certain fees to our general purpose reloadable cards, each of which would likely have a material adverse impact on our revenues.
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As the laws applicable to our business, and those of our distributors and issuing banks, change frequently, are often unclear and may differ or conflict between jurisdictions, ensuring compliance has become more difficult and costly. Any failure, or perceived failure, by us, our issuing banks or our distributors to comply with all applicable statutes and regulations could result in fines, penalties, regulatory enforcement actions, civil liability, criminal liability, and/or limitations on our ability to operate our business, each of which could significantly harm our reputation and have a material adverse impact on our business, results of operations and financial condition.
State and federal legislatures and regulatory authorities have become increasingly focused upon the regulation of the financial services industry and continue to adopt new legislation which could result in significant changes in the regulatory landscape for financial institutions, which can include our bank sponsors, and other financial services companies, such as our Company. For example, the
If we fail to comply with complex and expanding consumer protection regulations, our business could be adversely affected.
The establishment of the federal Consumer Financial Protection Bureau, or CFPB, will likely expose us to increased regulatory oversight and possibly more burdensome regulation that could have an adverse impact on our revenue and profits. InOn October 5, 2016, the CFPB issued a final rule to regulate certain prepaid accounts, or the Prepaid Account Rule. The Prepaid Account Rule mandates, among other things, extensive pre-purchase and post-purchase disclosures, expanded electronic billing statements; adherence to certain overdraft regulations for prepaid accounts that permit negative balances, and public posting of account agreements and submission to the CFPB which will then publish them on its website. The Prepaid Account Rule will apply starting October 1, 2017, subject to certain exceptions. Compliance with these obligations may result in increased compliance costs for us, our issuing banks and our distributors, and may therefore have a negative impact on the profitability of our business.
On May 2012,24, 2016, the Consumer Financial Protection Bureau announced an intentionCFPB proposed a rule concerning agreements that provide for arbitration of disputes between consumers and certain providers of consumer financial products and services, including certain types of prepaid cards. Under the proposed rule, certain pre-dispute arbitration agreements are prohibited from blocking consumer class actions in courts, and providers are required to propose regulations regardingsubmit certain records to the prepaid card industry, although noCFPB. If the proposed rule has yet been published.
Our card programs are subject to strict regulation under federal law regarding anti-money laundering and anti-terrorist financing. Failure to comply with such laws, or abuse of our card programs for purposes of money laundering or terrorist financing, could have a material adverse impact on our business.
Provisions of the USA PATRIOT Act, the Bank Secrecy Act and other federal law impose substantial regulation of financial institutions designed to prevent use of financial services for purposes of money laundering or terrorist financing. Increasing regulatory scrutiny of our industry with respect to money laundering and terrorist financing matters could result in more aggressive enforcement of such laws or more onerous regulation, which could have a material adverse impact on our business. In addition, abuse of our prepaid card programs for purposes of money laundering or terrorist financing, notwithstanding our efforts to prevent such abuse through our regulatory compliance and risk management programs, could cause reputational or other harm that would have a material adverse impact on our business.
Effective September 27, 2011, the Financial Crimes Enforcement Network of the U.S. Department of the Treasury, or FinCEN, issued a notice of proposed rulemakingfinal rule regarding the applicability of the Bank Secrecy Act'sAct’s anti-money laundering provisions to prepaid products and other matters related to the regulation of money services businesses. This rulemaking would createrule created additional obligations for entities, including our distributors, engaged in the provision and sale of certain prepaid products, including our prepaid debit cards, such as the obligation for sellers of prepaid debit cards to obtain identification information from the purchaser at the point-of-sale. Compliance with these obligations may result in increased compliance costs for us, our issuing banks and our distributors, and may therefore have a negative impact on the profitability of our business. Additionally, the imposition of such obligations upon sellers of prepaid debit cards may cause some of our distributors to determine that they do not wish to continue offering our prepaid debit cards for sale or reload, which could also have a significant negative impact on our business. However, as the proposed rulemaking is subject to further comment and revision, it is difficult to determine with any certainty what obligations the final rulemaking might impose or what impact they might have on our business or that of our issuing banks or distributors.
Unauthorized disclosure of cardholder data, whether through breach of our computer systems or otherwise, could expose us to liability and protracted and costly litigation.
We collect and store personal identifiable information about our cardholders, including names, addresses, social security numbers, driver'sdriver’s license numbers and account numbers, and maintain a database of cardholder data relating to specific transactions, including account numbers, in order to process transactions and prevent fraud. As a result, we are required to comply with the privacy provisions of the Gramm-Leach-Bliley Act, various other federal and state privacy statutes and regulations, and the Payment Card Industry Data Security Standard, each of which is subject to change at any time. Compliance with these requirements is often difficult and costly, and our failure, or our distributors'distributors’ failure, to comply may result in significant fines or civil penalties, regulatory enforcement action, liability to our issuing banks and termination of our agreements with one or more of our issuing banks, each of which could have a material adverse effect on our financial position and/or operations. In addition, a significant breach could result in our Company being prohibited from processing transactions for any of the relevant card associations or network organizations, including Visa, MasterCard, American Express, Discover or regional debit networks, which would also have a significant material adverse impact on our financial position and/or operations.
Furthermore, if our computer systems are breached by unauthorized users, we may be subject to liability, including claims for unauthorized purchases with misappropriated bank card information, impersonation or similar fraud claims. We could also be subject to liability for claims relating to misuse of personal information, such as unauthorized marketing purposes, or failure to comply with laws governing notification of such breaches. These claims also could result in protracted and costly litigation. In addition, we could be subject to penalties or sanctions from the relevant card associations or network organizations.
If our efforts to protect the security of information about our customers, cardholders and vendors are unsuccessful, we may face additional costly government enforcement actions and private litigation, and our sales and reputation could suffer.
An important component of our business involves the receipt and storage of information about our cardholders and banking information. We have multiple programs and processes in place to detect and respond to data security incidents. However, because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently and may be difficult to detect for long periods of time, we may be unable to anticipate these techniques or implement adequate preventive measures. In addition, hardware, software, or applications we develop or procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise information security. Unauthorized parties may also attempt to gain access to our systems or facilities, or those of third parties with whom we do business, through fraud, trickery, or other forms of deceiving our vendors, contractors, and employees. If we, our customers, or our vendors experience significant data security breaches or fail to detect and appropriately respond to significant data security breaches, we could be exposed to government enforcement actions and private litigation. In addition, our cardholders and customers could lose confidence in our ability to protect their information, which could cause them to discontinue using our services.
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We will be liable for separation payments in case of change in control, termination without cause, non-renewal of the agreement, death, or disability under the respective employment agreements with our Chairman, Mr. Long and our President, Chief Executive Officer, and Chief Operating Officer, Mr. Hoch, which will have an adverse effect on our cash position and on our financial results.
Pursuant to our respective employment agreements with Michael Long, Chairman, and Louis Hoch, President, Chief Executive Officer, and Chief Operating Officer, as amended, in the event of change in control, termination without cause, or non-renewal of the employment agreement, we will be liable for separation payments, equaling an amount of (a) 2.95 the respective base salary and bonus payments, plus (b) a pro rata portion of the respective annual bonus based on the number of days elapsed in the year prior, plus (c) 2.0 times the respective base salary for non-competition, and (d) continuing other benefits. We will also accelerate vesting of stock incentive awards, which as of December 31, 2016 are approximately $1.3 million each, and although such acceleration may not impact our cash position, will negatively affect our financial performance. We estimate the cash disbursements over time to be $1.5 to $2.0 million each for the respective agreements with Mr. Long and Mr. Hoch.
In the case of termination of the agreement due to death of the executive, we will be liable for separation payments, equaling an amount of 2.95 the respective base salary. The deferred compensation does not include amounts paid or accrued to executive for bonuses or bonus compensation, benefits or equity awards. Unpaid and unearned bonus compensation or bonus deferred compensation is forfeited. No deferred compensation will be due as long as we and/or an insurance company continues to pay executive’s base salary, minus any monthly base salary already paid to the executive prior to his death pursuant to the executive’s disability, to the executive’s estate for a period of up to 36 months. If these continuing payments cease before 36 months, we will have to pay the executive’s estate the deferred compensation minus any base salary payments within 30 days of the cessation. We estimate the cash disbursements over time to be approximately $1.0 million each for the respective agreements with Mr. Long and Mr. Hoch. Further, all stock options issued to the executive and all restricted stock granted to executive shall continue on their vesting schedule.
In the case of termination of the agreement due to disability without death, we will be liable for separation payments, equaling an amount of disability benefits constituting base salary for 3 years. We estimate the cash disbursement over time to be $0.7 to $0.8 million for each for the respective agreements with Mr. Long and Mr. Hoch. Unpaid and unearned bonus compensation or bonus deferred compensation is forfeited. Further, all stock options issued to the executive and all restricted stock granted to executive shall continue on their vesting schedule. No further compensation will be due for compliance with the agreements’ non-compete, non-solicitation and disparagement clauses.
In case of death or disability no further compensation will be due for compliance with the agreements’ non-compete, non-solicitation and disparagement clause. Depending on when such an event might occur, it could have a substantial adverse effect on our operating capital and cash on hand. If our cash position is not sufficient, we may need to raise additional cash which could involve selling equity securities which would dilute our shareholders. In addition, the loss of our Chairman or Chief Executive Officer may adversely affect our business and results of operations.
We depend on Michael R. Long, our co-founder and Chairman of the Board, and Louis A. Hoch, our Chief Executive and Operating Officer and President, and if these officerspersons ceased to be active in our management, our business may not be successful.
Our success depends to a significant degree upon the continued contributions of our key management, marketing, service and related product development and operational personnel, including our Chairman, Chief Executive Officerco-founder and Chief Financial Officer,Board Chairman Michael R. Long, and our President and Chief Executive and Operating Officer, Louis A. Hoch. We entered into employment agreements with Mr. Long and Mr. Hoch, respectively, in February 2007.2007 and update their agreements as changes are required. The terms of the agreements are substantially similar and prohibit the executive from competing with us for a period of two years from the executive’s date of termination. Our business may not be successful if, for any reason, either or both of these officerspersons cease to be active in our management.
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If we lose key personnel or we are unable to attract, recruit, retain and develop qualified employees, our business, financial condition and results of operations may be adversely affected.
In order for us to successfully compete and grow, we must attract, recruit, retain and develop the necessary personnel who can provide the needed expertise and skills across the spectrum of our intellectual capital needs. The market for qualified personnel is highly competitive and we may not be successful in recruiting qualified personnel for needed skill sets or replacing current personnel who leave the company. Failure to retain or attract key personnel and skill sets could have a material adverse effect on our business, financial condition and results of operations.
Our SVP and Chief Financial Officer, Habib Yunus resigned on December 30, 2016. We retained Mr. Yunus on our payroll through the end of his contract in March 2017. We have cancelled his shares scheduled to vest at March 2, 2025. We also granted Mr. Yunus 53,334 shares for his service as CFO from March 2, 2015 through December 30, 2016. Tom Jewell was appointed Senior Vice President and Chief Financial Officer on January 6, 2017. In connection therewith, Mr. Jewell resigned from our Board of Directors and his respective committee assignments.
If our software fails, and we need to repair or replace it, or we become subject to warranty claims, our costs could increase.
Our software products could contain errors or "bugs"“bugs” that could adversely affect the performance of services or damage a user'suser’s data. We attempt to limit our potential liability for warranty claims through technical audits and limitation-of-liability provisions in our customer agreements. However, these measures may not be effective in limiting our exposure to warranty claims. We have not experienced a significant increase in software errors or warranty claims. Despite the existence of various security precautions, our computer infrastructure may also be vulnerable to viruses or similar disruptive problems caused by our customers or third parties gaining access to our processing system. If our software fails, and we need to replace or repair it, or we become subject to warranty claims, our costs could significantly increase.
During the quarter ended September 30, 2016, we experienced a computer malfunction in our ACH processing engine allowing excess payment remittances of approximately $237,000. We were subsequently able to recover the majority of the excess remittances and the remainder was charged to our reserve for processing losses. The malfunction resulted in overfunding of the accounts of our merchants’ customers. Such processing and/or reporting errors may occur from time to time as a result of disruption to telecommunications services, software malfunction, human error, or other unrelated causes.
We depend on the efficient and uninterrupted operation of our computer network systems, software, data center and telecommunications networks, as well as the systems and services of third parties. Our systems and operations or those of our third-party providers could be exposed to damage or interruption from, among other things, fire, natural disaster, power loss, telecommunications failure, terrorist acts, war, unauthorized entry, human error, and computer viruses or other defects. Defects in our systems or those of third parties, errors or delays in the processing of payment transactions, telecommunications failures or other difficulties could result in loss of revenue, loss of merchants, loss of merchant and cardholder data, harm to our business or reputation, exposure to fraud losses or other liabilities, negative publicity, additional operating and development costs, and/or diversion of technical and other resources. We perform the vast majority of disaster recovery operations ourselves, though we utilize select third parties for some aspects of recovery. To the extent we outsource our disaster recovery, we are at risk of the vendor’s unresponsiveness in the event of breakdowns in our systems.
Risks associated with reduced levels of consumer spending could adversely affect our revenues and earnings.
Significant portions of our revenue and earnings are derived from fees from processing consumer ACH, prepaid, credit, card and debit card transactions. We are exposed to general economic conditions that affect consumer confidence, consumer spending, consumer discretionary income or changes in consumer purchasing habits. A general reduction in consumer spending in the United States or in any other country where we do business could adversely affect our revenues and earnings.
Fraud by merchants or others could have an adverse effect on our operating results and financial condition.
We have potential liability for fraudulent bankcard, ACH and prepaid card transactions or credits initiated by merchants or others. Examples of merchant fraud include when a merchant knowingly uses a stolen or counterfeit bankcard, card number or bank account to record a false sales transaction, processes an invalid bankcard, or intentionally fails to deliver the merchandise or services sold in an otherwise valid transaction. Criminals are using increasingly sophisticated methods to engage in illegal activities such as counterfeit and fraud. While we have systems and procedures designed to detect and reduce the impact of fraud, we cannot assure the effectiveness of these measures. It is possible that incidents of fraud could increase in the future. Failure to effectively manage risk and prevent fraud would increase our chargeback liability or cause us to incur other liabilities including regulatory and association fines, penalties and harm to our reputation. Increases in chargebacks or other liabilities could have an adverse effect on our operating results and financial condition.
Increases in credit card network fees may result in the loss of customers or a reduction in our earnings.
From time to time, the card networks, including Visa, MasterCard, and Discover, increase the fees (interchange and assessment fees) that they charge processors such as us. We may attempt to pass these increases along to our merchant customers, but this strategy might result in the loss of those customers to our competitors who do not pass along the increases. If competitive practices prevent our passing along such increased fees to our merchant customers in the future, we may have to absorb all or a portion of such increases thereby increasing our operating costs and reducing our earnings.
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We are subject to risks and write-offs resulting from fraudulent activities and losses from overdrawn cardholder accounts that could adversely impact our financial performance and results of operations.
Our prepaid cards expose us to threats involving the misuse of such cards, collusion, fraud, identity theft and systemic attacks on our systems. Although a large portion of fraudulent activity is addressed through the chargeback systems and procedures maintained by the card association networks, we are often responsible for other losses due to merchant and cardholder fraud. No system or procedures established to detect and reduce the impact of fraud are entirely effective and we recorded no fraud loses in 2016 and less than $10,000$5,000 in losses due to fraud in 2013.2015. Although we actively devote efforts to effectively manage risk and prevent fraud, we could nevertheless experience an increase in fraud losses over our historical experience.
Our cardholders can in some circumstances incur charges in excess of the funds available in their accounts and are liable for the resulting overdrawn account balance. Although we generally decline authorization attempts for amounts that exceed the available balance in a cardholder'scardholder’s account, the application of the card association networks'networks’ rules and regulations, the timing of the settlement of transactions and the assessment of subscription, maintenance or other fees can, among other things, result in overdrawn card accounts. As of December 31, 2013,2016, our cardholders'cardholders’ overdrawn account balances totaled less than $5,000.
Although we maintain reserves for fraud and other losses, our exposure to these types of risks may exceed our reserve levels for a variety of reasons, including our failure to predict the actual recovery rate, failure to effectively manage risk and failure to prevent fraud. Accordingly, our business, results of operations and financial condition could be materially and adversely affected to the extent that we incur losses resulting from overdrawn cardholder accounts and fraudulent activity that exceed our designated reserves or if we determine that it is necessary to increase our reserves substantially in order to address any increased recovery risk.
Our business strategy includes identifying businesses and assets to acquire, and if we cannot integrate acquisitions into our company successfully, we may have limited growth.
Our success partially depends upon our ability to identify and acquire undervalued businesses and merchant portfolios within our industry. Although we believe that there are companies and portfolios available for potential acquisition that might offer attractive business opportunities, we may not be able to make any acquisitions, and if we do make acquisitions, they may not be profitable. As a result, our business may not grow or sustain profitability.
If we do not manage our growth, then we may not be able to sustain profitability.
In order to manage our growth successfully, we will have to continue to improve our operational, management and financial systems and expand our work force. A significant increase in our customer base may necessitate the hiring of a significant number of additional personnel, qualified candidates for which, at the time needed, may be in short supply. In addition, the expansion and adaptation of our computer and administrative infrastructure will require substantial operational, management and financial resources. Although we believe that our current infrastructure is adequate to meet the needs of our customers in the foreseeable future, we may not be able to expand and adapt our infrastructure to meet additional demand on a timely basis, at a commercially reasonable cost, or at all. If our management is unable to manage growth effectively, hire needed personnel, expand and adapt our computer infrastructure and improve our operational, management, and financial systems and controls, we may not sustain profitability.
If we do not manage our credit risks related to our merchant accounts, we may incur significant losses.
We rely on the Federal Reserve’s Automated Clearing House system for electronic fund transfers and the Visa, MasterCard and Discover associations for settlement of payments by credit or debit card on behalf of our merchant customers. In our use of these established payment clearance systems, we generally bear the credit risks arising from returned transactions caused by insufficient funds, stop payment orders, closed accounts, frozen accounts, unauthorized use, disputes, customer charge backs, theft or fraud. Consequently, we assume the credit risk of merchant disputes, fraud, insolvency or bankruptcy in the event we attempt to recover funds related to such transactions from our customers. We have not experienced a significant increase in the rate of returned transactions or incurred any losses with respect to such transactions. We utilize a number of systems and procedures to manage and limit credit risks, but if these actions are not successful in managing such risks, we may incur significant losses.
We have adopted certain measures that may make it more difficult for a third party to acquire control of our Company.
Our Board of Directors is classified into three classes of directors serving staggered three-year terms. Such classification of the Board of Directors expands the time required to change the composition of a majority of directors and may tend to discourage a proxy contest or other takeover bid for our company.
RISKS RELATED TO OUR INDUSTRY
The electronic commerce market is relatively new and if it does not grow, we may not be able to sell sufficient services to make our business viable.
The electronic commerce market is a relatively new and growing service industry.industry that continues to grow. If the electronic commerce market fails to grow or grows slower than anticipated, or if we, despite an investment of significant resources, are unable to adapt to meet changing customer requirements or technological changes in this emerging market, or if our services and related products do not maintain a proportionate degree of acceptance in this growing market, our business may not grow and could even fail. Additionally, the security and privacy concerns of existing and potential customers may inhibit the growth of the electronic commerce market in general, and our customer base and revenues, in particular. Similar to the emergence of the credit card and automatic teller machine industries, we and other organizations serving the electronic commerce market must educate users that electronic transactions use encryption technology and other electronic security measures that make electronic transactions more secure than paper-based transactions.
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Changes in regulation of electronic commerce and related financial services industries could increase our costs and limit our business opportunities.
We believe that we are not required to be licensed by the Office of the Comptroller of the Currency, the Federal Reserve Board, or other federal or state agencies that regulate or monitor banks or other types of providers of electronic commerce services. It is possible that a federal or state agency will attempt to regulate providers of electronic commerce services, which could impede our ability to do business in the regulator's jurisdiction. Our business has also been affected by anti-terrorism legislation, such as the USA PATRIOT Act. Banking-related provisions of the USA PATRIOT Act have been implemented as additions to the banking rules regarding monetary instrument sales record keeping requirements and tracking of cash movements. In our capacity as an agent for Sunrise Banks, N.A,N.A., formerly known as University National Bank, and Metropolitan Commercial Bank, the issuing bankbanks for our prepaid card programs and in our capacity as an agent for Fifth Third Bank and Generations, Federal Credit Union and NACB, the sponsoring banks for our ACH services, we are required to comply with these rules. We are also required to implement a Customer Identification Program and establish an Anti-Money Laundering program and to report any suspected money laundering to the appropriate agencies. Our compliance with such regulations increases our responsibilities and costs associated with the administration of our debit card programs. We are also subject to various laws and regulations relating to commercial transactions, such as the Uniform Commercial Code, and may be subject to the electronic funds transfer rules embodied in Regulation E, promulgated by the Federal Reserve Board. Given the expansion of the electronic commerce market, the Federal Reserve Board might revise Regulation E or adopt new rules for electronic funds transfer affecting users other than consumers. Because of growth in the electronic commerce market, Congress has held hearings on whether to regulate providers of services and transactions in the electronic commerce market. It is possible that Congress or individual states could enact laws regulating the electronic commerce market. If enacted, such laws, rules and regulations could be imposed on our business and industry and could increase our costs or limit our business opportunities.
If we cannot compete successfully in our industry, we could lose market share and our costs could increase.
Portions of the electronic commerce market are becoming increasingly competitive. We expect to face growing competition in all areas of the electronic payment processing market. New companies could emerge and compete for merchants of all sizes. We expect competition to increase from both established and emerging companies and that such increased competition could lower our market share and increase our costs. Moreover, our current and potential competitors, many of whom have greater financial, technical, marketing and other resources than us, may respond more quickly than us to new or emerging technologies or could expand to compete directly against us in any or all of our target markets. Accordingly, it is possible that current or potential competitors could rapidly acquire market share. We may not be able to compete against current or future competitors successfully. Additionally, competitive pressures may increase our costs, which could lower our earnings, if any.
RISKS RELATED TO OUR COMMON STOCK
Our stock price is volatile and you may not be able to sell your shares at a price higher than what you paid.
The market for our common stock is highly volatile. In 2013,2016, our closing stock price fluctuated between $0.03$1.00 and $0. 195.$3.80. The trading price of our common stock could be subject to wide fluctuations in response to, among other things, quarterly variations in operating and financial results, announcements of technological innovations or new products by our competitors or us, changes in prices of our products and services or our competitors' products and services, changes in product mix, or changes in our revenue and revenue growth rates.
“Penny stock” rules may make buying or selling our securities difficult which may make our stock less liquid and make it harder for investors to buy and sell our shares.
Trading in our securities is subject to the SEC's "penny stock"SEC’s “penny stock” rules and it is anticipated that trading in our securities will continue to be subject to the penny stock rules for the foreseeable future. The SEC has adopted regulations that generally define a penny stock to be any equity security that has a market price of less than $5.00 per share, subject to certain exceptions. These rules require that any broker-dealer who recommends our securities to persons other than prior customers and accredited investors must, prior to the sale, make a special written suitability determination for the purchaser and receive the purchaser's written agreement to execute the transaction. Unless an exception is available, the regulations require the delivery, prior to any transaction involving a penny stock, of a disclosure schedule explaining the penny stock market and the risks associated with trading in the penny stock market. In addition, broker-dealers must disclose commissions payable to both the broker-dealer and the registered representative and current quotations for the securities they offer. The additional burdens imposed upon broker-dealers by these requirements may discourage broker-dealers from recommending transactions in our securities, which could severely limit the liquidity of our securities and consequently adversely affect the market price for our securities.
Our headquarters and operations are housed in approximately 4,5007,200 square feet of leased office space in San Antonio, Texas. Rental expense under the operating lease was approximately $75,000$158,200 and $94,000$142,000 for the years ended December 31, 20132016 and 2012,2015, respectively. On October 12, 2012, we executed a third amendment to ourThe lease which extended the term of the lease for a period of 44 months, or until Juneexpires on April 30, 2016. 2018.
We believe that our properties will be adequate to meet our needs through December 31, 2014.2017.
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On December 18, 2014, our former customer, Brightmoor Christian Church, filed a lawsuit in the United States District Court for the Eastern District of Michigan against us, alleging we did not warn or stop the processing of $181,709 in fraudulent credit transactions from occurring. We believe that the customer breached our processing agreement and that a security breach occurred because of the customer’s lack of controls over the login and password information utilized by the customer to time,process transactions resulting in the customer becoming a victim of a malware attack. On March 24, 2016, we entered into a settlement agreement with Brightmoor Church and on March 28, 2016, we filed to dismiss the lawsuit for no consideration. The case was dismissed by Brightmoor Church on April 4, 2016.
On April 26, 2016, Michael McFarland, derivatively on behalf the Company, re-filed a class-action lawsuit in United States District Court, District of Nevada that had been previously filed and dismissed. The suit alleges breach of fiduciary duties and unjust enrichment by our Board of Directors and certain executive officers and directors in connection with excessive and unfair compensation paid or awarded during fiscal years 2013 and 2014. The lawsuit seeks disgorgement of excessive compensation as well as damages in an unspecified amount. In July 2016, we filed a motion to dismiss the case. In January 2017, the court granted a partial dismissal of the claims and suggested the plaintiffs re-file their petition. Subsequently, we re-filed a motion to dismiss the case.
On February 1, 2016, our referral agreement with Shelby Systems, a provider of Church Management Systems, lapsed without renewal. On March 1, 2016, we were granted a temporary restraining order against Shelby Systems, Inc. by the District Court for the judicial district of Bexar County, Texas to prevent Shelby Systems from, among others, publishing false information about us and interfering with our customers after the termination of our referral agreement with Shelby Systems. On July 5, 2016, we agreed to dismiss the lawsuit with no further fees due Shelby Systems which netted us $97,493 in income.
We believe the claims are without merit and it is unlikely that a loss will be incurred; therefore we have not accrued for a potential loss. However, the outcomes of the disputes are still uncertain and it is possible we may incur legal fees and losses in the future.
Aside from the lawsuits described above, we may be involved in legal matters arising in the ordinary course of business.business from time to time. While we believe that such matters are currently not material, there can be no assurance that matters arising in the ordinary course of business for which we are or could become involved in litigation will not have a material adverse effect on our business, financial condition or results of operations.
Not applicable.
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PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES.Market Information
Our common stock is quoted on the NASDAQ Capital Markets Exchange under the ticker symbol “PYDS” since August 11, 2015. Prior to that our common stock was quoted on the OTCQB, the OTC market tier for companies that are reporting with the SEC, and on the OTC Bulletin Board, or OTCBB, also under the ticker symbol “PYDS.”
The following table sets forth the high and low closingtrading prices for our common stock for each quarter during the last two fiscal years. The prices reported below reflect inter-dealer prices and are without adjustments for retail markups, markdowns or commissions, and may not necessarily represent actual transactions.
| 2013 | High | Low | ||||||
| First Quarter | $ | 0.195 | $ | 0.1235 | ||||
| Second Quarter | $ | 0.180 | $ | 0.066 | ||||
| Third Quarter | $ | 0.100 | $ | 0.030 | ||||
| Fourth Quarter | $ | 0.05 | $ | 0.110 | ||||
| 2012 | High | Low | ||||||
| First Qarter | $ | 0.105 | $ | 0.062 | ||||
| Second Quarter | $ | 0.100 | $ | 0.073 | ||||
| Third Quarter | $ | 0.120 | $ | 0.070 | ||||
| Fourth Quarter | $ | 0.160 | $ | 0.110 | ||||
| High | Low | |||||||
| 2016 | ||||||||
| First Quarter | $ | 2.30 | $ | 1.55 | ||||
| Second Quarter | $ | 2.10 | $ | 1.16 | ||||
| Third Quarter | $ | 2.40 | $ | 1.00 | ||||
| Fourth Quarter | $ | 3.80 | $ | 1.57 | ||||
| 2015 | ||||||||
| First Quarter | $ | 5.49 | $ | 2.53 | ||||
| Second Quarter | $ | 5.85 | $ | 3.77 | ||||
| Third Quarter | $ | 4.92 | $ | 2.54 | ||||
| Fourth Quarter | $ | 3.03 | $ | 1.78 | ||||
Holders
On March 24 2014, 147,721,07715, 2017, 11,795,939 shares of our common stock were issued and 137,224,398 shares of our common stock were outstanding. As of March 24, 2014,March15, 2017, there were approximately 3,86494 stockholders of record of our common stock.
Dividends
We have never declared or paid cash or stock dividends, and we have no plans to pay any such dividends in the foreseeable future. Instead, we intend to reinvest our earnings, if any.
Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information asrequired to be disclosed by Item 201(d) of December 31, 2013 with respectRegulation S-K, “Securities Authorized for Issuance Under Equity Compensation Plans,” is incorporated herein by reference. Refer to compensation plans (including individual compensation arrangements) under which our equity securities are authorizedItem 12 of Part III of this annual report on Form 10-K for issuance:
| Number of securities to be issued upon exercise of outstanding options | Weighted-average exercise price of outstanding options | Number of securities remaining available for future issuance under compensation plan | ||||||||||
| Equity compensation plans approved by security holders | 1,454,421 | $ | 0.082 | - | ||||||||
| Equity compensation plans not approved by security holders | - | - | - | |||||||||
| Total | 1,454,421 | $ | 0.082 | - | ||||||||
Recent Sales of Unregistered Securities; Use of Proceeds from Registered Securities
On November 15, 2016, we issued 10,000 shares of unregistered equity securities valued at $1.74 per share to a consultant for investor relations services.
We relied on the quarter ended December 31, 2013, we didSection 4(a) (2) exemption from securities registration under the federal securities laws for transactions not sellinvolving any unregisteredpublic offering. No advertising or general solicitation was employed in offering the securities.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Issuer Purchases of Equity Securities
| Period | (a) Total number of shares (or units) purchased | (b) Average price paid per share (or unit) | (c) Total number of shares (or units) purchased as part of publicly announced plans or programs | (d) Maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs | ||||||||||||
| December 1, 2016 to December 31, 2016 (1) | 246,717 | $ | 1.75 | (246,717 | ) | $ | 568,245 | |||||||||
| Total | 246,717 | $ | 1.75 | (246,717 | ) | $ | 568,245 | |||||||||
| (1) | On December 27, 2016, we repurchased 246,717 shares in a private transaction at the closing price on December 27, 2016 from employees and directors to cover the respective employees’ share of taxes for shares that vested on that day, as approved by our Board of Directors on the same day, with the respective directors recusing themselves. |
On November 2, 2016, we announced that our Board of Directors authorized the repurchase anyof up to $1 million of our common stock duringfrom time to time on the fourth quarteropen market, in block transactions, or in privately negotiated transactions. The program began on November 16, 2016 and will be available until all funds are exhausted, or September 29, 2019, unless terminated earlier by us. The program may be used for purchases of 2013.
As a smaller reporting company, as defined by Rule 12b-2 of the Exchange Act and in Item 10(f)(1) of Regulation S-K, we are electing scaled disclosure reporting obligations and therefore are not required to provide the information requested by this Item.
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The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and notes thereto, and other financial information included elsewhere in this annual report on Form 10-K. This report contains forward-looking statements. When used in this report, the words “expects,” “anticipates,” “suggests,” “believes,” “intends,” “estimates,” “plans,” “projects,” “continue,” “ongoing,” “potential,” “expect,” “predict,” “believe,” “intend,” “may,” “will,” “should,” “could,” “would,” “proposal,” and similar expressions are intended to identify forward-looking statements. Actual results in future periods may differ materially from those expressed or implied in such forward-looking statements as a result of a number of factors, including, but not limited to, the risks discussed under the heading "Risk Factors" in this annual report on and elsewhere in this annual report on Form 10-K.
Overview
We provide integrated electronic payment processing services to merchants and businesses, including all types of Automated Clearing House, or ACH, processing, credit, prepaid card and debit card-based processing services and transaction processing via the Automated Clearing House network.services. We also operate an online payment processing service, under the domain name www.billx.com system, which allows consumers to process online payments to pay any other individual, including family and friends. SinceThrough Akimbo, under the domain name www.akimbocard.com, we offer MasterCard prepaid cards to consumers for use as a tool to stay on budget, manage allowances and share money with family and friends. We have further developed our inception in 1998, we incurred operating losses each quarter until the quarter ended June 30, 2011. We generated both operating incomeAkimbo platform to include Akimbo Now for businesses, Akimbo Gift for consumers and net income in the third and fourth quarters of 2011 and were profitablesupport for all four quarters of 2012. Despite our recent profitability in 2012 and the latter half of 2011, weApple Pay™.
We reported a net loss of $789,039$1,196,642 for the year ended December 31, 2013. At2016 versus net income of $1,016,088 for the year ended December 31, 2013, our2015. We have an accumulated deficit was $53,853,620. Our 2013of $50,251,641. Total dollars processed for all payment types in 2016 exceeded $2.9 billion, but reflected a decrease of 12% compared to 2015. ACH or electronic check transaction processing volumes for 2016 decreased 12% compared to 2015. Credit card processing volumes for 2016, down 5% compared to 2015, were the second highest in company history. Credit card dollars per transaction processed decreased 5% and credit card and debit card processing transactions processed increased twenty-three percent from 2012 and our 2013 credit card and debit cardless than 1% compared to 2015. The $2.9 billion dollars processed increased eighteen percent from 2012 resulting inwas slightly short of last year’s record volumes for any year in the historyamount of our Company. However, we experienced lower ACH transaction volumes and prepaid card volumes in 2013, which, ultimately, resulted in reduced revenue for that year. In the last quarter of 2013, we initiated ACH transaction processing for newly acquired customers that led to dramatic increases in ACH transaction volumes. ACH volumes reported for fourth quarter of 2013 were the highest we have experienced in any previous quarter of 2013. We believe these trends will continue for the foreseeable future. We also expect to see an increase in the number of our enrolled merchant customers, for whom we provide processing for credit and debit card transactions, and we expect to add new clients to our sales pipeline, which we believe will create increased transaction volumes. We believe the profitability we experienced in the fourth quarter of 2013 will continue for the foreseeable future, but the extent of our future operating results and the ultimate timing of our profitability is not certain. We may continue to incur future operating losses. $3.3 billion.
To sustain profitability, we must, among other things, grow and maintain our customer base, implement a successful marketing strategy, continue to maintain and upgrade our technology and transaction-processingtransaction processing systems, provide superior customer service, respond to competitive developments, attract, retain and motivate qualified personnel, and respond to unforeseen industry developments and other factors. We believe that our success will depend in large part on our ability to (a) drive top line growth, (b) manage our operating expenses, (b)(c) add quality customers to our client base, (c)(d) meet evolving customer requirements and (d)(e) adapt to technological changes in an emerging market. Accordingly, we intend to focus on customer acquisition activities and outsource some of our processing services to third parties to allow us to maintain an efficient operating infrastructure and expand our operations without significantly increasing our fixed operating expenses.
Critical Accounting Policies
General
Our management'smanagement’s discussion and analysis of financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis, we evaluate our estimates, including those related to the reported amounts of revenues and expenses, bad debt, investments, intangible assets, income taxes, and contingencies and litigation. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results could differ from these estimates under different assumptions or conditions. We consider the following accounting policies to be critical because the nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change or because the impact of the estimates and assumptions on financial condition or operating performance is material.
For a summary of fees generated through the electronic processingCritical Accounting Policies, please refer to Notes to Consolidated Financial Statements, Note 1. Description of payment transactionsBusiness and related services, and is recognized as revenue during the period the transactions are processed or when the related services are performed. We comply with ASC Topic 605-45-45 and report our revenues at gross as a principal versus not as an agent. Although someSummary of our processing agreements vary with respect to certain risks we assume, we have determined that for each agreement we are acting in the principal role. Merchants may be charged for these processing services at a bundled rate based on a percentage of the dollar amount of each transaction and, in some instances, additional fees are charged for each transaction. Certain merchant customers are charged a flat fee per transaction, while others may also be charged miscellaneous fees, including fees for chargebacks or returns, monthly minimums, and other miscellaneous services. Revenues derived from electronic processing of credit, debit, and prepaid card transactions that are authorized and captured through third-party networks are reported gross of amounts paid to sponsor banks as well as interchange and assessments paid to credit card associations (Visa, MasterCard and Discover). Revenue also includes any up-front fees for the work involved in implementing the basic functionality required to provide electronic payment processing services to a customer. Revenue from such implementation fees is recognized over the term of the related service contract. Sales taxes billed are reported directly as a liability to the taxing authority, and are not included in revenue.
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Results of Operations
Revenues
Our revenues are principally derived from providing integrated electronic payment services to merchants and businesses, including credit and debit card-based processing services and transaction processing via the Automated Clearing House, or ACH, network and the program management and processing of prepaid debit cards. We also operate an online payment processing service for consumers under the domain name www.billx.com and sell this service as a private-label application to resellers. Total revenues for 20132016 decreased 29%16% to $5,180,362$12,076,358 from $7,345,974$14,380,459 for 2012.2015. The decrease indecreased revenues for 2013 is2016 are primarily attributed to lowerdecreases in the volume of ACH transaction volumesprocessing transactions and prepaidcredit card volumes, which, ultimately, resulted in reduced revenue.
Operating Expenses
Cost of services includes the cost of personnel dedicated to the creation and maintenance of connections to third-party payment processors and the fees paid to such third-party providers for electronic payment processing services. Through our contractual relationships with our payment processors and sponsoring banks, we are able to process ACH and debit, credit or creditprepaid card transactions on behalf of our customers and their consumers. We pay volume-based fees for debit, credit, ACH and creditprepaid transactions initiated through these processors or sponsoring banks, and pay fees for other transactions such as returns, notices of change to bank accounts and file transmission. Cost of services was $4,205,466$8,293,354 and $4,186,963$9,417,334 for 20132016 and 2012,2015, respectively. The increasedecrease of $1,123,980 or 12% in cost of services for 20132016 as compared to 2015 was primarily due to higher costs directly related to the higher transactiondecrease in the volume inof ACH processing transactions and credit card processing that occurred in 2013 as compared to credit card transaction volumes in 2012
Stock-based compensation expenses increased to $293,080$1,314,778 for 20132016 from $251,830$1,275,130 for 2012.2015. Our stock-based compensation expenses for 20132016 and 2015 represented the amortization of deferred compensation expenses related to incentive stock grants to employees, from previous periods,officers and increaseddirectors.
Cancellation of stock-based compensation expense (income) was ($261,208) and ($163,936) for 2013 duethe years ended December 31, 2016 and December 31, 2015, respectively. This amount represents non-vested stock-based awards to the amortization of additional grants made in the fourth quarter of 2012.
Other selling, general and administrative expenses decreasedincreased to $1,405,594$3,188,407 for 2013,2016, from $1,509,333$2,408,686 for 2012.2015. The decrease$779,721 or 32% increase in other selling, general and administrative expenses for 20132016 was principally due to rising salaries and benefits of approximately $375,000, incremental investor relations and press release expenses of approximately $190,000, and approximately $145,000 of incremental investor conferences and marketing expenses, and legal and accounting fees of approximately $66,000.. The increase in accounting expenses, legal fees, investor relations, press releases, investor conferences and marketing activities are associated with a reductionfull year of investor and SEC reporting activities associated with our listing on NASDAQ in trade show marketing, lower executive bonus compensation paid,August 2015.
Depreciation and lower rent expense due to promotional free rentAmortization
Depreciation and amortization was $901,600 for two months as a result of our renewal of the lease in 2013.
Other expense, netIncome
Interest Income increased to $97,322 from $79,005 for 2015 due to higher cash balances. Other income was $1,350$99,277 for 2013,2016, as compared to $39,761$65,490 for 2012,2015.
Income Taxes
Income tax expense was $32,668 and was primarily attributable to lower unrealized losses recognized on marketable securities, lower unrealized losses on the common stock we hold$75,285 in Commerce Planet2016 and reduced interest expense.
Net Income (Loss)
We reported a net loss of $789,039$1,196,642 for 2013,2016, as compared to net income of $1,275,218$1,016,088 for 2012.2015. The decrease in profit is related to the factors described above.
| 20 |
Liquidity and Capital Resources
At December 31, 2013,2016, we had $26,573,771$4,120,738 of cash and cash equivalents, as compared to $3,759,791$4,059,606 of cash and cash equivalents at December 31, 2012.2015. The increase in cash for 20132016 was primarily due to customer deposit payablescash generated from operations.
We reported a net loss of $25,740,163, which represented an increase of $23,625,041 in customer deposit payables$1,196,642 for 2013 that was directly associated with the increase in ACH transaction volumes for our newly acquired customers and the associated cash reserve requirements we placed on some of those customers. We expect customer deposits to increase as we expect to add new clients from whom we will require cash reserves. Since our inception in 1998, we incurred operating losses each quarter until the quarteryear ended June 30, 2011. We generated both operating incomeDecember 31, 2016, and net income inof $1,016,088 for the third and fourth quarters of 2011 and were profitable for all four quarters of 2012 and the last quarter of 2013.year ended December 31, 2015. Additionally, we reported working capital of $368,149$4,522,151 and $1,260,528$3,872,190 at December 31, 20132016 and 2012,2015, respectively. Despite our recent profitability in the last quarter of 2013, all of 2012 and the latter half of 2011, we reported a net loss of $789,039 for the year ended December 31, 2013. We believe the profitability we experienced in the fourth quarter of 2013 will continue for the foreseeable future, but the extent of our future operating results and the ultimate timing of our profitability is not certain. We may continue to incur future operating losses.
Net cash provided by operating activities was $23,177,620$848,438 for 20132016 as compared to $475,059$2,089,959 for 2012.2015. The increasereduction in net cash usedprovided by operating activities for 2013 was primarily attributable to a $23,625,041 increase in customer deposit payables, which consisted of cash held in transit that we collected on behalf of our merchants via our ACH processing service, as compared to a $1,314,013 decrease in customer deposit payables for the same period in the prior year,lower revenues and was partially offset by a net loss of $789,039 for 2013, as compared to net income of $1,275,218 for the same period in the prior year.
Net cash used by investing activities was $62,385$355,551 for 20132016 and $93,956$785,571 for 2011.2015. The decrease in net cash used by investing activities for 2013,2016, as compared to the prior year was primarily related to a reduction in theof internal use software projects and acquisition of equipment.
Net cash used by financing activities for 20132016 was $301,255,$431,755 compared to $48,237 for 2015, which represented the purchase by us in the first quarter of 2013represents incremental purchases of certain shares of common stock owned by Michael Long,employees and directors.
Loan and Security Agreement with C2Go, Inc.
On February 2, 2016, we, through our Chief Executive Officerwholly-owned subsidiary FiCentive, Inc., entered into a loan and Chief Financial Officer,security agreement with C2Go, Inc., a Nevada corporation, pursuant to which we agreed to loan a principal amount of $200,000 to C2Go with an interest rate of 10% per annum for a term of 18 months. On or before July 31, 2016, C2Go will repay an amount equal to the lesser of (i) 10% of C2Go’s gross profit, defined as revenue minus fees directly related to processing and Louis Hoch, our Presidentcard servicing and Chief Operating Officer,other third party processing expenditures, for the period April 1, 2016 through and including June 30, 2016, or (ii) all accrued and unpaid interest from the closing date until such date. Thereafter, C2Go will repay the debt and interest in monthly installments in an amount equal to the lesser of accrued and unpaid interest from the closing date or 25% of C2Go’s gross profit. There is no prepayment penalty. Any prepayment shall be in an amount not less than two months of interest on the then outstanding principal balance of the note. On the maturity date C2Go must pay the then-outstanding balance and any accrued interest.
C2Go’s obligations under the loan and security agreement are secured by a first lien on all assets of C2Go. The debt is senior, and any future debt incurred by C2Go must be subordinated to the debt of the loan and security agreement.
Upon maturity of the debt, C2Go is required to issue to us 5% of the issued and outstanding shares of common stock of C2Go as satisfaction in full of certain outstanding amounts Mr. Longthe date of issuance, on a fully diluted basis, giving effect to any convertible securities, warrants, etc., such shares being validly issued, fully-paid and Mr. Hoch owednon-assessable shares for no additional consideration.
Upon an event of default the interest rate under the loan and security agreement will rise to us. Net cash used by financing activities for 2012 was $300,000 and represented borrowings18% per annum.
Secured Line of $479,405 and repayments of $779,405Credit Promissory Note with Singular Payments, LLC
On March 7, 2017, we agreed to provide up to $500,000 to Singular Payments, LLC, a Florida limited liability company, under oura secured line of credit.credit promissory note. Interest on the note does not accrue until the earlier of May 31, 2017, the date of closing and funding our proposed acquisition of Singular Payments or the termination of a non-binding letter of intent regarding the proposed acquisition, or until such mutually agreed upon extended date. Thereafter, interest will accrue at a rate of ten percent per annum. Upon an event of default, interest will accrue at the maximum lawful rate or 15% per annum. The line of credit and associated certificate of deposit maturedmatures on November 16, 2012. Accordingly,1, 2019.
If the Singular Payments acquisition closes before interest accrues any unpaid principal amount will be offset against the cash portion of the purchase price. If the acquisition does not close on or before interest accrues, any unpaid principal amount plus interest will have to be paid in 30 equal monthly installments. The note may be prepaid in whole or in part at any time and without a penalty.
The line of credit expired according to its termsis secured by a security agreement of the same date granting a first security interest over all of Singular Payment’s property, inventory, proceeds, intellectual property, among others, a membership interest pledge agreement over 100% of all Singular Payments, LLC membership interests, and a personal guaranty agreement by Vaden Landers, the collateral was released.
Off-Balance Sheet Arrangements
We currently have no off-balance sheet arrangements that have or are reasonably likely to have a current or future material effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
As a smaller reporting company as defined by Rule 12b-2 of the Exchange Act and in Item 10(f)(1) of Regulation S-K, we are electing scaled disclosure reporting obligations and therefore are not required to provide the information requested by this Item.
| 21 |
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
The Board of Directors and Stockholders
Payment Data Systems, Inc. and Subsidiaries
San Antonio, Texas
We have audited the accompanying consolidated balance sheets of Payment Data Systems, Inc. and its Subsidiaries (collectively referred to as the “Company”) as of December 31, 20132016 and 2012,2015, and the related consolidated statements of operations, changes in stockholders'stockholders’ equity (deficit) and cash flows for the years then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purposes of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company atas of December 31, 20132016 and 2012,2015, and the consolidated results of their operations and cash flows for the years then ended, in conformity with U.S. generally accepted accounting principles.
/s/ Akin, Doherty, Klein & Feuge, P.C.
Akin, Doherty, Klein & Feuge, P.C.
San Antonio, Texas
April 6, 2017
| 23 |
PAYMENT DATA SYSTEMS, INC.
| December 31, 2016 | December 31, 2015 | |||||||
| ASSETS | ||||||||
| Cash and cash equivalents | $ | 4,120,738 | $ | 4,059,606 | ||||
| Accounts receivable, net | 907,750 | 1,135,384 | ||||||
| Settlement processing assets | 43,851,311 | 39,797,232 | ||||||
| Prepaid expenses and other | 142,029 | 149,118 | ||||||
Note receivable | 200,000 | - | ||||||
| Current assets before restricted cash | 49,221,828 | 45,141,340 | ||||||
| Restricted cash | 15,803,641 | 17,972,065 | ||||||
| Total current assets | 65,025,469 | 63,113,405 | ||||||
| Property and equipment, net | 2,494,510 | 3,077,421 | ||||||
| Other assets: | ||||||||
| Intangibles, net | 172,899 | 341,816 | ||||||
| Deferred tax asset | 1,621,000 | 1,621,000 | ||||||
| Other assets | 200,808 | 202,849 | ||||||
| Total other assets | 1,994,707 | 2,165,665 | ||||||
| Total Assets | $ | 69,514,686 | $ | 68,356,491 | ||||
| LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
| Current Liabilities: | ||||||||
| Accounts payable | $ | 145,044 | $ | 143,180 | ||||
| Accrued expenses | 703,322 | 1,328,738 | ||||||
| Settlement processing obligations | 43,851,311 | 39,797,232 | ||||||
| Current liabilities before restricted cash | 44,699,677 | 41,269,150 | ||||||
| Restricted cash | 15,803,641 | 17,972,065 | ||||||
| Total current liabilities | 60,503,318 | 59,241,215 | ||||||
| Stockholders' Equity: | ||||||||
| Preferred stock, $0.01 par value, 10,000,000 shares authorized; -0- shares outstanding in 2016 and 2015 | - | - | ||||||
| Common stock, $0.001 par value, 200,000,000 shares authorized; 12,392,288 and 12,379,537 issued and 11,795,939 and 12,029,905 outstanding in 2016 and 2015 (see Note 10) | 181,818 | 185,533 | ||||||
| Additional paid-in capital | 63,881,365 | 64,302,498 | ||||||
| Treasury stock, at cost; 596,349 and 349,632 shares in 2016 and 2015 (see Note 10) | (718,149 | ) | (286,394 | ) | ||||
| Deferred compensation | (4,082,025 | ) | (6,031,362 | ) | ||||
| Accumulated deficit | (50,251,641 | ) | (49,054,999 | ) | ||||
| Total stockholders' equity | 9,011,368 | 9,115,276 | ||||||
| Total Liabilities and Stockholders' Equity | $ | 69,514,686 | $ | 68,356,491 | ||||
The accompanying notes are an integral part of these consolidated financial statements
| 24 |
PAYMENT DATA SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
| Year ended December 31, 2016 | Year ended December 31, 2015 | |||||||
| Revenues | $ | 12,076,358 | $ | 14,380,459 | ||||
| Operating expenses: | ||||||||
| Cost of services | 8,293,354 | 9,417,334 | ||||||
| Selling, general and administrative: | ||||||||
| Stock-based compensation | 1,314,778 | 1,275,130 | ||||||
| Cancellation of stock-based compensation | (261,208 | ) | (163,936 | ) | ||||
| Other expenses | 3,188,407 | 2,408,686 | ||||||
| Depreciation and amortization | 901,600 | 496,368 | ||||||
| Total operating expenses | 13,436,931 | 13,433,582 | ||||||
| Operating income (loss) | (1,360,573 | ) | 946,877 | |||||
| Other income: | ||||||||
| Interest income | 97,322 | 79,005 | ||||||
| Other income (expense) | 99,277 | 65,490 | ||||||
| Other income (expense), net | 196,599 | 144,495 | ||||||
| Income (loss) before income taxes | (1,163,974 | ) | 1,091,372 | |||||
| Income taxes (benefit) expense | 32,668 | 75,285 | ||||||
| Net Income (Loss) | $ | (1,196,642 | ) | $ | 1,016,088 | |||
| Earnings (Loss) Per Share | ||||||||
| Basic earnings (loss) per common share: | $ | (0.15 | ) | $ | 0.14 | |||
| Diluted earnings (loss) per common share: | $ | (0.15 | ) | $ | 0.08 | |||
| Weighted average common shares outstanding (see Note 11) | ||||||||
| Basic | 7,838,197 | 7,389,177 | ||||||
| Diluted | 7,838,197 | 11,988,180 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
| December 31, | December 31, | |||||||
| 2013 | 2012 | |||||||
| ASSETS | ||||||||
| Cash and cash equivalents | $ | 26,573,771 | $ | 3,759,791 | ||||
| Accounts receivable, net | 585,037 | 403,303 | ||||||
| Prepaid expenses and other | 98,966 | 114,699 | ||||||
| Total current assets | 27,257,774 | 4,277,793 | ||||||
| Property and equipment, net | 122,061 | 91,330 | ||||||
| Other assets: | ||||||||
| Related party receivable | - | 702,337 | ||||||
| Marketable securities | 27,450 | 31,467 | ||||||
| Other assets | 121,144 | 52,693 | ||||||
| Total other assets | 148,594 | 786,497 | ||||||
| Total Assets | $ | 27,528,429 | $ | 5,155,620 | ||||
| LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
| Current Liabilities: | ||||||||
| Accounts payable | $ | 60,818 | $ | 203,066 | ||||
| Accrued expenses | 1,088,644 | 695,202 | ||||||
| Customer deposits payable | 25,740,163 | 2,115,122 | ||||||
| Deferred revenue | - | 3,875 | ||||||
| Total current liabilities | 26,889,625 | 3,017,265 | ||||||
| Stockholders' Equity: | ||||||||
| Common stock, $0.001 par value, 200,000,000 shares authorized; 147,721,077 and | ||||||||
| 147,721,077 issued and 137,150,323 and 142,725,833 outstanding | 147,721 | 147,721 | ||||||
| Additional paid-in capital | 56,873,423 | 56,873,423 | ||||||
| Treasury stock, at cost; 10,570,754 and 4,995,244 shares | (1,241,750 | ) | (238,158 | ) | ||||
| Deferred compensation | (1,286,970 | ) | (1,580,050 | ) | ||||
| Accumulated deficit | (53,853,620 | ) | (53,064,581 | ) | ||||
| Total stockholders' equity | 638,804 | 2,138,355 | ||||||
| Total Liabilities and Stockholders' Equity | $ | 27,528,429 | $ | 5,155,620 | ||||
| 25 |
PAYMENT DATA SYSTEMS, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
| Additional | Total | |||||||||||||||||||||||||||
| Common Stock | Paid - In | Treasury | Deferred | Accumulated | Stockholders' | |||||||||||||||||||||||
| Shares | Amount | Capital | Stock | Compensation | Deficit | Equity | ||||||||||||||||||||||
| Balance at December 31, 2014 | 12,278,440 | $ | 184,177 | $ | 62,989,131 | $ | (238,157 | ) | $ | (5,839,992 | ) | $ | (50,071,087 | ) | $ | 7,024,072 | ||||||||||||
| Issuance of common stock, restricted | 5,000 | 5 | 11,945 | - | - | - | 11,950 | |||||||||||||||||||||
| Issuance of common stock, restricted, as deferred compensation | 290,547 | 4,358 | 1,235,642 | - | (1,240,000 | ) | - | - | ||||||||||||||||||||
| Deferred compensation amortization | - | - | - | - | 984,763 | - | 984,763 | |||||||||||||||||||||
| Issuance of common stock under equity incentive plan | 26,946 | 370 | 138,449 | - | - | - | 138,819 | |||||||||||||||||||||
| Stock-based compensation related to stock grant, restricted shares and equity incentive plan | - | - | 151,551 | - | - | 151,551 | ||||||||||||||||||||||
| Purchase of treasury stock | - | - | - | (48,237 | ) | - | - | (48,237 | ) | |||||||||||||||||||
| Round-up of fractional shares from reverse split | 1,117 | - | - | - | - | - | - | |||||||||||||||||||||
| Stock option exercise | 167 | 3 | 203 | - | - | - | 206 | |||||||||||||||||||||
| Reversal of deferred compensation amortization that did not vest | (222,680 | ) | (3,380 | ) | (224,423 | ) | - | 63,867 | - | (163,936 | ) | |||||||||||||||||
| Net income for the year | - | - | - | - | - | 1,016,088 | 1,016,088 | |||||||||||||||||||||
| Balance at December 31, 2015 | 12,379,537 | $ | 185,533 | $ | 64,302,498 | $ | (286,394 | ) | $ | (6,031,362 | ) | $ | (49,054,999 | ) | $ | 9,115,276 | ||||||||||||
| Issuance of common stock, restricted | 30,000 | 30 | 51,670 | - | - | - | 51,700 | |||||||||||||||||||||
Issuance of common stock, restricted, Akimbo settlement | 167,153 | 168 | 419,053 | - | - | - | 419,221 | |||||||||||||||||||||
| Issuance of Common stock under Equity Incentive Plan | 82,265 | 87 | 329,019 | - | 70,768 | - | 399,874 | |||||||||||||||||||||
| Deferred Compensation | - | - | - | - | 914,902 | - | 914,902 | |||||||||||||||||||||
| Reversal of deferred compensation that did not vest | (266,667 | ) | (4,000 | ) | (1,220,875 | ) | 963,667 | (261,208 | ) | |||||||||||||||||||
| Purchase of treasury stock | - | - | - | (431,755 | ) | - | - | (431,755 | ) | |||||||||||||||||||
Net earnings (loss) for the year | - | - | - | - | - | (1,196 ,642 | ) | (1,196 ,642 | ) | |||||||||||||||||||
| Balance at December 31, 2016 | 12,392,288 | $ | 181,818 | $ | 63,881,365 | $ | (718,149 | ) | $ | (4,082,025 | ) | $ | (50,251,641 | ) | $ | 9,011,368 | ||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
| 26 |
PAYMENT DATA SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONSCASH FLOWS
| Year Ended December 31, 2016 | Year Ended December 31, 2015 | |||||||
| Operating Activities | ||||||||
| Net income (loss) | $ | (1,196,642 | ) | $ | 1,016,088 | |||
| Adjustments to reconcile net income (loss) to net cash provided by operating activities: | ||||||||
| Depreciation | 738,461 | 466,606 | ||||||
| Amortization | 163,139 | 29,762 | ||||||
| Goodwill | 5,777 | - | ||||||
| Non-cash stock based compensation | 1,314,778 | 1,275,130 | ||||||
| Cancellation of stock based compensation | (261,208 | ) | (163,936 | ) | ||||
| Issuance of stock to consultant | 51,700 | - | ||||||
| Issuance of stock to Akimbo to settle Indemnification liability | 419,221 | - | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | 227,634 | (98,174 | ) | |||||
| Prepaid expenses and other | 7,089 | (19,860 | ) | |||||
| Other assets | 2,041 | 1,263 | ||||||
| Accounts payable and accrued expenses | (623,552 | ) | (416,920 | ) | ||||
| Net cash provided by operating activities | 848,438 | 2,089,959 | ||||||
| Investing Activities | ||||||||
| Purchases of property and equipment | (155,551 | ) | (785,571 | ) | ||||
| Note receivable | (200,000 | ) | - | |||||
| Net cash (used) by investing activities | (355,551 | ) | (785,571 | ) | ||||
| Financing Activities | ||||||||
| Purchases of treasury stock | (431,755 | ) | (48,237 | ) | ||||
| Net cash (used) by financing activities | (431,755 | ) | (48,237 | ) | ||||
| Change in cash and cash equivalents | 61,132 | 1,256,151 | ||||||
| Cash and cash equivalents, beginning of year | 4,059,606 | 2,803,455 | ||||||
| Cash and Cash Equivalents, End of Year | $ | 4,120,738 | $ | 4,059,606 | ||||
| Supplemental Disclosures | ||||||||
| Cash paid for interest | $ | - | $ | - | ||||
| Cash paid for income taxes | $ | 48,164 | $ | 32,369 | ||||
| Year ended | Year ended | |||||||
| December 31, | December 31, | |||||||
| 2013 | 2012 | |||||||
| Revenues | $ | 5,180,362 | $ | 7,345,974 | ||||
| Operating expenses: | ||||||||
| Cost of services | 4,205,466 | 4,186,963 | ||||||
| Selling, general and administrative: | ||||||||
| Stock-based compensation | 293,080 | 251,830 | ||||||
| Other expenses | 1,405,594 | 1,509,333 | ||||||
| Depreciation | 31,654 | 6,860 | ||||||
| Total operating expenses | 5,935,794 | 5,954,986 | ||||||
| Operating income (loss) | (755,432 | ) | 1,390,988 | |||||
| Other income (expense): | ||||||||
| Other income (expense) | (1,350 | ) | (39,761 | ) | ||||
| Other income (expense), net | (1,350 | ) | (39,761 | ) | ||||
| Income (loss) before income taxes | (756,782 | ) | 1,351,227 | |||||
| Income taxes | 32,257 | 76,009 | ||||||
| Net Income (loss) | $ | (789,039 | ) | $ | 1,275,218 | |||
| Earnings (loss) Per Share | ||||||||
| Basic and diluted earnings (loss) per common share: | $ | (0.01 | ) | $ | 0.01 | |||
| Weighted average common shares outstanding | ||||||||
Basic | 126,117,526 | 133,050,998 | ||||||
| Diluted | 126,117,526 | 136,962,234 | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
| 27 |
PAYMENT DATA SYSTEMS, INC.
| Additional | Total | |||||||||||||||||||||||||||
| Common Stock | Paid - In | Treasury | Deferred | Accumulated | Stockholders' | |||||||||||||||||||||||
| Shares | Amount | Capital | Stock | Compensation | Deficit | Equity (Deficit) | ||||||||||||||||||||||
| Balance at December 31, 2011 | 142,721,077 | $ | 142,721 | $ | 56,328,423 | $ | (238,158 | ) | $ | (1,281,880 | ) | $ | (54,339,799 | ) | $ | 611,307 | ||||||||||||
| Issuance of common stock, restricted | 5,000,000 | 5,000 | 545,000 | - | (550,000 | ) | - | - | ||||||||||||||||||||
| Deferred compensation | - | - | - | - | 251,830 | - | 251,830 | |||||||||||||||||||||
| Net income for the year | - | - | - | - | - | 1,275,218 | 1,275,218 | |||||||||||||||||||||
| Balance at December 31, 2012 | 147,721,077 | $ | 147,721 | $ | 56,873,423 | $ | (238,158 | ) | $ | (1,580,050 | ) | $ | (53,064,581 | ) | $ | 2,138,355 | ||||||||||||
| Purchase of treasury stock | - | - | - | (1,003,592 | ) | - | - | (1,003,592 | ) | |||||||||||||||||||
| Deferred compensation | - | - | - | - | 293,080 | - | 293,080 | |||||||||||||||||||||
| Net loss for the year | - | - | - | - | - | (789,039 | ) | (789,039 | ) | |||||||||||||||||||
| Balance at December 31, 2013 | 147,721,077 | $ | 147,721 | $ | 56,873,423 | $ | (1,241,750 | ) | $ | (1,286,970 | ) | $ | (53,853,620 | ) | $ | 638,804 | ||||||||||||
| Year Ended | Year Ended | |||||||
December 31, 2013 | December 31, 2012 | |||||||
| Operating Activities | ||||||||
| Net income (loss) | $ | (789,039 | ) | $ | 1,275,218 | |||
| Adjustments to reconcile net income (loss) | ||||||||
| to net cash provided by operating activities: | ||||||||
| Depreciation | 31,654 | 6,860 | ||||||
| Non-cash stock based compensation | 293,080 | 251,830 | ||||||
| Unrealized loss on marketable securities | 4,017 | 63,320 | ||||||
| Marketable securities received in litigation settlement | - | (20,000 | ) | |||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | (181,734 | ) | (27,233 | ) | ||||
| Prepaid expenses and other | 15,733 | (82,535 | ) | |||||
| Other assets | (68,451 | ) | (11,000 | ) | ||||
| Accounts payable and accrued expenses | 251,194 | 333,085 | ||||||
| Customer deposits payable | 23,625,041 | (1,314,013 | ) | |||||
| Deferred revenue | (3,875 | ) | (473 | ) | ||||
| Net cash provided by operating activities | 23,177,620 | 475,059 | ||||||
| Investing Activities | ||||||||
| Purchases of property and equipment | (62,385 | ) | (93,956 | ) | ||||
| Net cash (used) by investing activities | (62,385 | ) | (93,956 | ) | ||||
| Financing Activities | ||||||||
| Proceeds from debt | - | 479,405 | ||||||
| Payments on debt | - | (779,405 | ) | |||||
| Purchases of treasury stock | (301,255 | ) | - | |||||
| Net cash (used) provided by financing activities | (301,255 | ) | (300,000 | ) | ||||
| Change in cash and cash equivalents | 22,813,980 | 81,103 | ||||||
| Cash and cash equivalents, beginning of year | 3,759,791 | 3,678,688 | ||||||
| Cash and Cash Equivalents, End of Year | $ | 26,573,771 | $ | 3,759,791 | ||||
| Non-cash item: | ||||||||
| Settlement of related party receivable with treasury stock | $ | 702,337 | $ | - | ||||
| Supplemental Disclosures | ||||||||
| Cash paid for interest | $ | 1,957 | $ | 2,237 | ||||
| Cash paid for income taxes | $ | 41,408 | $ | 13,492 | ||||
DECEMBER 31, 20132016 AND 2012
Note 1. Description of Business and Summary of Significant Accounting Policies
Organization:
Payment Data Systems, Inc., along with its subsidiaries,Principles of Consolidation and Basis of Presentation:
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation.Use of Estimates:
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.Revenue Recognition:
Revenue consists primarily of fees generated through the electronic processing of payment transactions and related services, and is recognized as revenue during the period the transactions are processed or when the related services are performed. TheCash and Cash Equivalents
: Cash and cash equivalents includes cash and other money market instruments. The Company considers all highly liquid investmentsSettlement Processing Assets and Obligations: Settlement processing assets and obligations represent intermediary balances arising in our settlement process for merchants.
Restricted Cash also: Restricted cash includes customer deposits.
Accounts Receivable/Allowance for Estimated Losses: Accounts Receivable are reported as outstanding principal net of an allowance for doubtful accounts of $26,556 and $35,033 at December 31, 2016 and 2015, respectively.
We maintain an allowance for doubtful accounts for estimated losses resulting from the inability or failure of our customers to make required payments. We determine the allowance based on an account-by-account review, taking into consideration such factors as the age of the outstanding balance, historical pattern of collections and financial condition of the customer. Past losses incurred by us due to bad debts have been within our expectations. If the financial conditions of our customers were to deteriorate, resulting in an impairment of their ability to make contractual payments, additional allowances might be required. Estimates for bad debt losses are variable based on the volume of transactions processed and could increase or decrease accordingly. The Company classifies its marketable security investment portfolio as either held to maturity, available-for-sale, or trading. At December 31, 2013 and 2012, all of the Company’s marketable securities were classified as trading. Securities classified as trading are carried at fair value with unrealized gains and losses included in the consolidated statement of operations. Classification as current or non-current is based primarilynormally does not charge interest on whether there is an active public market for such security, as well as the daily trading volume of a security relative to the Company’s ownership position. Gains or losses from the sale or redemption of the marketable securities are determined using the specific identification method.
Property and Equipment
: Property and equipment are stated at cost. Depreciation and amortization are computed on a straight-line method over the estimated useful lives of the related assets, ranging from three toAccounting for Internal Use Software: We capitalize the costs associated with software developed or obtained for internal use when both the preliminary project stage is completed and it is probable that computer software being developed will be completed and placed-in service. Capitalized costs include only (i) external direct costs of materials and services consumed in developing or obtaining internal-use software, (ii) payroll and other related costs for employees who are directly associated with and who devote time to the internal-use software project, and (iii) interest costs incurred, when material, while developing internal-use software. We cease capitalization of such costs no later than the point at which the project is substantially complete and ready for its intended purpose
Concentration of Credit Risk:
Financial instruments that potentially expose the Company to credit risk consist of cash and cash equivalents, and accounts receivable. The Company is exposed to credit risk on its cash and cash equivalents in the event of default by the financial institutions to the extent of balances in excess of amounts that are insured by the FDIC ($250,000).| 28 |
Fair Value of Financial Instruments:
Impairment of Long-Lived Assets
and Intangible Assets: The Company periodically reviews, on at least an annual basis, the carrying value of its long-lived assetsReserve for Processing Losses:
If, due to insolvency or bankruptcy of one of the Company’s merchant customers, or for any other reason, the Company is not able to collect amounts from its card processing credit card, ACH or merchant prepaid customers that have been properly "charged back" by the customer or if a prepaid cardholder incurs a negative balance, the Company must bear the credit risk for the full amount of the transaction. The Company may require cash deposits and other types of collateral from certain merchants to minimize any such risk. In addition, the Company utilizes a number of systems and procedures to manage merchant risk. ACH, prepaid and credit card merchant processing loss reserves are primarily determined by performing a historical analysis of our loss experience and considering other factors that could affect that experience in the future, such as the types of transactions processed and nature of the merchant relationship with its consumers and the Company with its prepaid card holders. This reserve amount is subject to the risk that actual losses may be greater than our estimates. The Company has not incurred any significant processing losses to date. Estimates for processing losses vary based on the volume of transactions processed and could increase or decrease accordingly. The Company evaluates its risk for such transactions and estimates its potential processing losses based primarily on historical experience and other relevant factors. At December 31,Advertising Costs:
Advertising is expensed as incurred. The Company incurred approximatelyIncome Taxes:
As with all businesses, the Company’s tax returns are subject to periodic examination. The Company’s federal returns for the past four years remain open to examination. The Company is subject to the Texas margin tax.
We have approximately $40.2 million of net operating loss carryforwards. However, we cannot predict with reasonable certainty that all of the available net operating loss carryforwards will be realized in future periods. Accordingly, a valuation allowance of has been provided to reduce the net deferred tax assets to $1.6 million. Management does not anticipate a significant change in the 6 months after the assessment and will review the deferred tax asset balance at June 30, 2017, or earlier as events may warrant.
On November 20, 2015, FASB issued Accounting Standards Update (ASU) No. 2015-17, Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes, which requires all deferred tax asset and liabilities classified as non-current. The Company has implemented this standard effective December 31, 2015 which resulted in reclassifying $773,000 from current to non-current. There was no effect on the previously reported earnings or equity.
Stock-Based Compensation
: The Company recognizes as compensation expense all share-based payment awards made to employees and directors, including grants of stock options and warrants, based on estimated fair values. Fair value is generally determined based on the closing price of the Company’s common stock on the date of grant.401(k) Plan: The Company has a defined contribution plan (the “401(k) Plan”) pursuant to Section 401(k) of the Internal Revenue Code. All eligible full and part-time employees of the Company who meet certain age requirements may participate in the 401(k) Plan. Participants may contribute between 1% and 15% of their pre-tax compensation, but not in excess of the maximum allowable under the Code. The 401(k) Plan allows for discretionary and matching contributions by the Company. In 2016, the Company matched 100% of employee contributions up to 3% and 50% of the employee contribution over 3% with a maximum employer contribution of 5%. The Company made matching contributions of $52,905 and $49,636 in 2016 and 2015, respectively.
Earnings (Loss) Per Share
: Basic and diluted earnings (loss) per common share are calculated by dividing earnings by the weighted average number of common shares outstanding during the period.New Accounting Pronouncement: In May 2014, the Financial Accounting Standards Board (FASB) issued accounting standards update, ASU 2014-09, “Revenue from Contracts with Customers (Topic 606) and a subsequent amendment to the standard in March 2016, ASU 2016-08 “Revenue from Contracts with Customers, Principal versus Agent Consideration (Reporting Revenue Gross versus Net). The original standard provides guidance on recognizing revenue, including a five step model to determine when revenue recognition is appropriate. The standard requires that an entity recognizes revenue to depict the transfer of Credit
In February 2016, the FASB issued, “Leases (Topic 842),” which is intended to increase the transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee will be required to recognize on the balance sheet an asset (right to use) and a liability (lease obligation) for leases with terms of more than 12 months. Accounting by lessors will remain largely unchanged from current U.S. generally accepted accounting principles. The new standard are as follows:is effective for public companies for fiscal years beginning after December 15, 2018, and interim periods within those years, with early adoption permitted. Management does not expect that adopting this standard will have a significant impact on its financial statements and related disclosures.
Note 2. Note Receivable
On February 2, 2016, the Company entered into a loan and security agreement with C2Go, Inc., a Nevada corporation, pursuant to which the Company agreed to loan a principal amount of $200,000 to C2Go with an interest rate of 10% per annum for a term of 18 months.
C2Go’s obligations under the loan and security agreement are secured by a first lien on all assets of C2Go. The debt is senior, and liabilities are classified in their entirety based on the lowest level of input that is significantany future debt incurred by C2Go must be subordinated to the fair value measurement. The Company’s assessmentdebt of the significanceloan and security agreement.
Upon maturity of a particular inputthe debt, C2Go is required to issue to the fair value measurement requires judgment,Company 5% of the issued and may affectoutstanding shares of common stock of C2Go as of the valuationdate of fair value assetsissuance, on a fully diluted basis, giving effect to any convertible securities, warrants, etc., such shares being validly issued, fully-paid and liabilitiesnon-assessable shares for no additional consideration.
Upon an event of default the interest rate under the loan and their placement withinsecurity agreement will rise to 18% per annum. As of December 31, 2016, the fair value hierarchy levels. The following table sets forth by level within the fair value hierarchy the Company’s financial assets and liabilities that are accountedCompany has not recorded an allowance for at fair value.credit losses on this note receivable.
| December 31, 2013 | ||||||||||||||||
Recurring Fair Value Measures Assets: | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
| Marketable securities | $ | 27,450 | - | - | $ | 27,450 | ||||||||||
| Liabilities: | ||||||||||||||||
| None | - | - | - | - | ||||||||||||
| December 31, 2012 | ||||||||||||||||
Recurring Fair Value Measures Assets: | Level 1 | Level 2 | Level 3 | Level 1 | ||||||||||||
| Marketable securities | $ | 31,467 | - | - | $ | 31,467 | ||||||||||
| Liabilities: | ||||||||||||||||
| None | - | - | - | - | ||||||||||||
Note 4.3. Property and Equipment
Property and equipment consisted of the following at December 31:
| 2016 | 2015 | |||||||
| Software | $ | 3,692,474 | $ | 3,549,968 | ||||
| Equipment | 812,049 | 799,005 | ||||||
| Furniture and fixtures | 214,450 | 214,450 | ||||||
| Leasehold improvements | 25,353 | 25,353 | ||||||
| Total property and equipment | 4,744,326 | 4,588,776 | ||||||
| Less: accumulated depreciation | (2,249,816 | ) | (1,511,355 | ) | ||||
| Net property and equipment | $ | 2,494,510 | $ | 3,077,421 | ||||
The estimated useful life for $2,585,385 of software acquired from Akimbo was changed from 10 years to 5 years in the 4th quarter of 2015. As a result, 2016 included a full year of depreciation at the higher depreciation rate as compared to one quarter of 2015 at the higher depreciation rate.
Note 4. Intangibles
Intangibles consist of the customer list and contracts of $396,824 and goodwill of $9,759 acquired in the purchase of the assets of Akimbo Financial, Inc. in 2014. The fair value of the customer list and contracts was calculated using the net present value of the projected gross profit to be generated by the customer list over the next 36 months beginning in January 2015 and is being amortized over 3 years at $132,275 annually.
Goodwill was determined based on the purchase price paid over the assets acquired and has an indefinite life, which is tested for impairment annually.
| 30 |
| 2012 | 2012 | |||||||
| Furniture and fixtures | $ | 175,856 | $ | 175,856 | ||||
| Equipment | 626,278 | 594,391 | ||||||
| Software | 348,515 | 332,337 | ||||||
| Leasehold improvements | 15,992 | 15,992 | ||||||
| Total property and equipment | 1,166,641 | 1,118,576 | ||||||
| Less: accumulated depreciation | (1,044,580 | ) | (1,027,246 | ) | ||||
| Net property and equipment | $ | 122,061 | $ | 91,330 | ||||
Note 5. Valuation Accounts
Valuation and allowance accounts included the following at December 31:
| Balance Beginning of Year | Net Charged to Costs and Expenses | Transfers | Net Write-Off | Balance End of Year | ||||||||||||||||
| 2016 | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 35,033 | $ | - | $ | - | $ | (8,477 | ) | $ | 26,556 | |||||||||
| Reserve for processing losses | 248,868 | - | - | (76,036 | ) | 172,832 | ||||||||||||||
| 2015 | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 45,663 | $ | - | $ | - | $ | (10,630 | ) | $ | 35,033 | |||||||||
| Reserve for processing losses | 272,365 | - | - | (23,497 | ) | 248,868 | ||||||||||||||
| Balance Beginning of Year | Net Charged to Costs and Expenses | Transfers | Net Write-Off | Balance End of Year | ||||||||||||||||
| 2013 | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 50,362 | $ | - | $ | - | $ | (580 | ) | $ | 49,782 | |||||||||
| Reserve for processing losses | 214,560 | - | 82,805 | - | 297,365 | |||||||||||||||
| 2012 | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 103,042 | $ | - | $ | - | $ | (52,680 | ) | $ | 50,362 | |||||||||
| Reserve for processing losses | 131,544 | 83,016 | - | - | 214,560 | |||||||||||||||
Note 6. Accrued Expenses
Accrued expenses consisted of the following balances at December 31:
| 2016 | 2015 | |||||||
| Indemnification liability | $ | - | $ | 450,000 | ||||
| Accrued commissions | 221,837 | 440,232 | ||||||
| Reserve for merchant losses | 172,832 | 248,868 | ||||||
| Other accrued expenses | 192,769 | 112,414 | ||||||
| Accrued taxes | 38,469 | 54,077 | ||||||
| Accrued salaries | 77,415 | 23,147 | ||||||
| Total accrued expenses | $ | 703,322 | $ | 1,328,738 | ||||
| 2013 | 2012 | |||||||
| Accrued salaries | $ | 142,071 | $ | 142,257 | ||||
| Reserve for merchant losses | 297,365 | 214,560 | ||||||
| Accrued commissions | 350,188 | 78,071 | ||||||
| Accrued taxes | 51,820 | 92,849 | ||||||
| Other accrued expenses | 247,200 | 167,465 | ||||||
| Total accrued expenses | $ | 1,088,644 | $ | 695,202 | ||||
Note 7. Operating Leases
The Company currently leases approximately 4,5007,200 square feet of office space that houses its principal executive offices and operations. Rental expense under the operating lease was approximately $75,000$158,200 and $94,000$142,000 for the years ended December 31, 20132016 and 2012,2015, respectively. On October 12, 2012,The lease expires on April 30, 2018.
The Company also leases select computer equipment over a 36 month period initiated in May, 2016. The lease expires in April, 2019. Rental expense under the Company executed a third amendment to itsoperating lease which extendedwas $45,500 for the lease for a period of 44 months, or until June 30, 2016. Future minimum lease payments atyear ended December 31, 2013 are as follows:2016.
| Year ending December 31 | ||||
| 2017 | $ | 231,100 | ||
| 2018 | 125,400 | |||
| 2019 | 28,000 | |||
| Year ending December 31 | ||||
| 2014 | $ | 92,018 | ||
| 2015 | 94,271 | |||
| 2016 | 47,324 | |||
| 31 |
Note 8. Related Party Transactions
Nikole Killough
During the yearsyear ended December 31, 20132016 and 2012,2015, the Company paid Herb Authier a totalpurchased $2,250 and $857, respectively, of $35,400corporate imprinted sportswear, promotional items and $31,250 in cash, respectively, for services related to network engineeringcaps from Angry Pug Sportswear. Nikole Killough (ex-wife of Louis Hoch) and administration that he provided to the Company. Mr. Authier is the father-in-law of Louis Hoch, the Company’s President and Chief Operating Officer.Executive Officer are each 50% owners of Angry Pug Sportswear.
Miguel Chapa
During the year ended December 31, 2016 and 2015, the Company received $51,500 and $20,901 in revenue from Club Rio Maroc Bar, Lush Rooftop, and Nirvana Bar and Rock. Miguel Chapa, a member of our Board of Directors, is an owner in Club Rio Maroc Bar, Lush Rooftop, and Nirvana Bar and Rock. Louis Hoch, the Company’s President and Chief Executive Officer, is also an owner in Lush Rooftop.
On December 27, 2016, the Company repurchased 246,717 shares in a private transaction at the closing price on December 27, 2016 from employees and directors to cover the respective employees’ and directors’ share of taxes for shares that vested on that day, as approved by the Company’s Board of Directors and Company’s Audit Committee on the same day. The value of the treasury shares purchased to cover the taxes was $431,755.
Note 9. Income Taxes
Deferred income taxes reflect the net tax effect of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities are as follows at December 31:31 :
| 2016 | 2015 | |||||||
| Deferred tax assets: | ||||||||
| Net operating loss carryforwards | $ | 13,676,000 | $ | 13,500,000 | ||||
| Depreciation | 313,000 | 90,000 | ||||||
| Non-cash compensation | 279,000 | 370,000 | ||||||
| Other | 23,000 | - | ||||||
| Valuation Allowance | (12,670,000 | ) | (12,339,000 | ) | ||||
| Deferred tax asset | $ | 1,621,000 | $ | 1,621,000 | ||||
| 2013 | 2012 | |||||||
| Gross deferred tax assets: | ||||||||
| Net operating loss carryforwards | $ | 14,831,000 | $ | 14,694,000 | ||||
| Depreciation and other items | 25,000 | 36,000 | ||||||
| Total deferred tax assets | 14,856,000 | 14,730,000 | ||||||
| Less: valuation allowance | (14,856,000 | ) | (14,730,000 | ) | ||||
| Net deferred tax asset recorded | $ | - | $ | - | ||||
Management has reviewed its net deferred asset position, and due to the history of operating losses has determined that the application of a full valuation allowance at December 31, 20132016 and December 31, 20122015 is warranted. If applicable, the Company would recognize interest expense and penalties related to uncertain tax positions in interest expense. As of December 31, 2013,2016, the Company had not accrued any interest or penalties related to uncertain tax provisions.
The Company has net operating loss carryforwards for tax purposes of approximately $43.6$40.2 million that begin to expire in the year 2020. Approximately $3.5$0.1 million of the total net operating loss is subject to an IRS Section 382 limitation from 1999.
The tax provision for federal and state income tax is as follows for the year ended December 31:
| 2016 | 2015 | |||||||
| Current provision: | ||||||||
| Federal | $ | - | $ | 32,369 | ||||
| State | 32,668 | 42,916 | ||||||
32,668 | 75,285 | |||||||
| Deferred provision: | ||||||||
| Federal (benefit) | - | - | ||||||
| (Benefit) expense for income taxes | $ | 32,668 | $ | 75,285 | ||||
The reconciliation of federal income tax computed at the U.S. federal statutory tax rates to total income tax expense (benefit) is as follows for the year ended December 31:
| 2016 | 2015 | |||||||
| Income tax expense (benefit) at 34% | $ | (407,000) | $ | 361,000 | ||||
| Change in valuation allowance | 331,000 | 93,000 | ||||||
| Permanent and other differences | 76,000 | (454,000 | ) | |||||
| Alternative minimum tax and Texas margin tax | 32,668 | 75,285 | ||||||
| Income tax expense (benefit) | $ | 32,668 | $ | 75,285 | ||||
| 32 |
| 2013 | 2012 | |||||||
| Tax (benefit) at statutory rate -- 34% | $ | (251,000 | ) | $ | 424,000 | |||
| Change in valuation allowance | 126,000 | (438,000 | ) | |||||
| Permanent and other differences | 125,000 | 14,000 | ||||||
| Alternative minimum tax | - | 20,500 | ||||||
| Income tax expense | $ | - | $ | 20,500 | ||||
Note 10. Stock Options, Incentive Plans, Stock Awards, and Employee Benefit Plan
Stock Option Plans
:The Company’s 1999 Employee Comprehensive Stock2015 Equity Incentive Plan ("Employee Plan") provides qualifiedfor the grant of incentive stock options (“ISOs”) and non-qualified stock options (“NQSOs”) as well as restricted stock grants to key employees. Under the termsdefined in Section 422 of the Employee Plan,Internal Revenue Code and the exercise pricegrant of ISOs must be equalStock Options, Restricted Stock, Stock Units, Performance Awards, or other Awards to 100%employees, non-employee directors, and consultants. The Board of Directors has authorized 5,000,000 shares (adjusted for the fair market value1-for-15 reverse split effective on the dateJuly 23, 2015) of grant (or 110% of fair market value in the case of an ISO granted to a 10% stockholder/grantee). There is no price requirement for NQSOs, other than that the option price must exceed the par value of theour common stock. The Company reserved 30,000,000 shares of its commoncapital stock for issuance pursuantunder the 2015 Stock Incentive Plan, including automatic increases provided for in the 2015 Equity Incentive Plan through fiscal year 2025. The number of shares of our common stock reserved for issuance under the 2015 Equity Incentive Plan will automatically increase, with no further action by the stockholders, on the first business day of each fiscal year during the term of the Plan, beginning January 1, 2016, in an amount equal to 5% of the Employee Plan. The Employee Plan terminated in 2010.
Treasury Stock: During 2016, the Company purchased 246,717 shares with a value of Directors$431,705 to cover the employee’s and stockholdersdirector’s share to provide non-employee directors optionstax liabilities related to purchase shares of common stock at 100% of fair market valuegrants maturing on the date of grant. The Company reserved 1,500,000 shares of its common stock for issuance pursuant to the Director Plan. The Director Plan terminated in 2010.
| Options | Shares | Weighted Average Exercise Price | Weighted Average Contractual Remaining Life | Aggregate Intrinsic Value | ||||||||||||
| Outstanding, December 31, 2012 | 2,884,421 | $ | 0.08 | |||||||||||||
| Granted | - | - | ||||||||||||||
| Vested | - | - | ||||||||||||||
| Forfeited | 1,430,000 | $ | 0.13 | |||||||||||||
| Outstanding, December 31, 2013 | 1,454,421 | $ | 0.08 | 1.99 | $ | - | ||||||||||
| Expected to Vest after December 31, 2013 | 1,454,421 | $ | 0.08 | 1.99 | $ | - | ||||||||||
Stock Awards:
The Company has granted restricted stock awards to its employees at different periods from 2005 throughThe fair valueCompany entered into two Director’s agreements in 2016 where each director received 66,667 restricted stock units, pursuant and subject to the terms of the Company’s 2015 Equity Incentive Plan. The initial 22,223 shares vested on January 1, 2017. The remaining shares will vest two in installments: 22,222 shares vesting on January 1, 2018, and 22,222 shares vesting on January 1, 2019. For one director, the shares vesting on January 1, 2018 and shares vesting on January 1, 2019 were forfeited as of January 6, 2017.
The Company also had an employment agreement that granted 266,667 shares in 2015 of our common stock set to vest on March 2, 2025 which were forfeited on December 31, 2016.
The Company entered into one Director’s agreement where the director received 33,333 restricted stock units in 2015 of our common stock at the start of his directorship term, pursuant and subject to the terms of the Company’s 2015 Equity Incentive Plan. 11,112 shares vested on April 24, 2015 and 11,112 shares vested on January 1, 2016. 11,109 shares vesting on January 1, 2017 were forfeited during 2016.
| 33 |
During 2016 a portion of the restricted stock awardawards were granted, to the Company’s employees is amortized to expense on a straight-line basis over the vesting period of the restricted stock award. Restricted stock awards arebut not issued and reportedare not listed as outstanding in the financial statements for 2013 and 2012 as of the date that the physical shares were issued to the employee by the Company’s transfer agent.2016. Stock-based compensation expense related to stock options and restricted stock awards was $293,080$1,314,778 for 20132016 and $251,830$1,275,130 for 2012.2015. The following table presents a summary of the Company’s restricted stock awards outstanding at December 31, 2013:
| Stock Awards | Shares | Weighted Average Exercise Price | Weighted Average Contractual Remaining Life | Aggregate Intrinsic Value | ||||||||||||
| Outstanding, December 31, 2015 | 4,324,102 | $ | 1.98 | |||||||||||||
| Granted | - | - | ||||||||||||||
| Vested | 696,159 | - | ||||||||||||||
| Forfeited | 266,667 | - | ||||||||||||||
| Outstanding, December 31, 2016 | 3,361,276 | $ | 1.85 | 4.17 | $ | - | ||||||||||
| Expected to Vest after December 31, 2016 | 3,361,276 | $ | 1.85 | 4.17 | $ | - | ||||||||||
| Stock Awards | Shares | Weighted Average Exercise Price | Weighted Average Contractual Remaining Life | Aggregate Intrinsic Value | ||||||||||||
| Outstanding, December 31, 2012 | 45,681,301 | $ | 0.08 | |||||||||||||
| Granted | - | - | ||||||||||||||
| Vested | 5,430,000 | 0.055 | ||||||||||||||
| Forfeited | - | - | ||||||||||||||
| Outstanding, December 31, 2013 | 40,251,301 | $ | 0.08 | 4.67 | $ | 145,000 | ||||||||||
| Expected to Vest after December 31, 2013 | 40,251,301 | $ | 0.08 | 4.67 | $ | - | ||||||||||
As of December 31, 2013,2016, there was approximately $1,287,000$4,082,025 of total unrecognized compensation costs related to the unvested share-based compensation arrangements granted. The cost is expected to be recognized over the weighted average remaining contractual life of 4.674.17 years.
The aggregate intrinsic value represents the difference between the weighted average exercise price and the closing price of the Company’s stock on December 31, 2016, or $1.85.
Employee Stock Purchase Plan
: The Company established the 1999 Employee Stock Purchase PlanStock Warrants: There were no stock warrants as of the Code. All eligible fullDecember 31, 2016 and part-time employees of the Company who meet certain age requirements may participate in the 401(k) Plan. Participants may contribute between 1% and 15% of their pre-tax compensation, but not in excess of the maximum allowable under the Code. The 401(k) Plan allows for discretionary and matching contributions by the Company. The Company did not make any matching contributions in 2013 or 2012.
Note 11. Earnings (loss) per Share
Basic earnings (loss) per share (EPS) were computed by dividing net income (loss) by the weighted average number of shares of common stock outstanding during the period. Diluted EPS differs from basic EPS due to the assumed conversion of potentially dilutive options that were outstanding during the period. The following is a reconciliation of the numerators and the denominators of the basic and diluted per share computations for net income (loss). Share numbers have been adjusted for the 1-for-15 reverse split effective on July 23, 2015.
| 2016 | 2015 | |||||||
| Numerator: | ||||||||
| Numerator for basic and diluted earnings per share, net income (loss) available to common shareholders | $ | (1,196,642 | ) | $ | 1,016,088 | |||
| Denominator: | ||||||||
| Denominator for basic earnings per share, weighted average shares outstanding | 7,838,197 | 7,389,177 | ||||||
| Effect of dilutive securities-stock options and restricted awards | - | 4,599,003 | ||||||
| Denominator for diluted earnings per share, adjusted weighted average shares and assumed conversion | 7,838,197 | 11,988,180 | ||||||
Basic earnings (loss) per common share | $ | (0.15 | ) | $ | 0.14 | |||
| Diluted earnings (loss) per common share and common share equivalent | $ | (0.15 | ) | $ | 0.08 | |||
| 2013 | 2012 | |||||||
| Numerator: | ||||||||
| Numerator for basic and diluted earnings (loss) per share, net income (loss) available to common shareholders | $ | (789,039 | ) | $ | 1,275,218 | |||
| Denominator: | ||||||||
| Denominator for basic earnings (loss) per share, weighted average shares outstanding | 126,117,526 | 133,050,998 | ||||||
| Effect of dilutive securities-stock options and restricted awards | - | 3,911,236 | ||||||
| Denominator for diluted earnings per share, adjusted weighted average shares and assumed conversion | 126,117,526 | 136,962,234 | ||||||
| Basic earnings (loss) per common share | $ | (0.01 | ) | $ | 0.01 | |||
| Diluted earnings (loss) per common share and common share equivalent | $ | (0.01 | ) | $ | 0.01 | |||
The awards and options to purchase shares of common stock that were outstanding at December 31, 20132016 and 20122015 that were not included in the computation of diluted earnings (loss) per share because the effect would have been antidilutive,anti-dilutive, are as follows:
| Year Ended December 31, | ||||||||
| 2016 | 2015 | |||||||
| Anti-dilutive awards and options | 3,361,276 | - | ||||||
| 2013 | 2012 | |||||||
| Anti-dilutive awards and options | 13,664,270 | 1,335,000 | ||||||
| 34 |
Note
On July 23, 2015, pursuant to shareholder and board approval, the Company affected a 1-for-15 reverse stock split of the outstanding common stock by filing a certificate of change with the Secretary of State of the State of Nevada and obtaining approval by the Financial Industry Regulatory Authority. The number of our authorized common shares remained unchanged at 200,000,000 shares, par value $0.001 per share, after the reverse stock split. The number of our authorized preferred stock remains unchanged at 10,000,000 shares, par value $0.01 per share.
Note 13. Concentration of Credit Risk and Significant Customers
The Company has no outstanding warrantssignificant off-balance sheet or concentrations of credit risk such as foreign exchange contracts, option contracts or other foreign hedging arrangements. The Company currently maintains the majority of December 31, 2013 or December 31, 2012.its Cash and cash equivalent balance with one financial institution.
The Company was involved in a lawsuit with a customer that alleged it did not warn or stop the processing of $181,709 in fraudulent credit transactions from occurring. The Company believes that the customer breached the Company’s processing agreement and that a security breach occurred because of the customer’s lack of controls over the login and password information utilized by the customer to time,process transactions resulting in the customer becoming a victim of a malware attack. On March 24, 2016, the Company entered into a settlement agreement with Brightmoor Church and on March 28, 2016, the Company filed to dismiss the lawsuit for no consideration. The case was dismissed by Brightmoor Church on April 4, 2016.
On April 26, 2016, Michael McFarland, derivatively on behalf the Company, re-filed a class-action lawsuit in United States District Court, District of Nevada that had been previously filed and dismissed. The suit alleges breach of fiduciary duties and unjust enrichment by the Company’s Board of Directors and certain executive officers and directors in connection with excessive and unfair compensation paid or awarded during fiscal years 2013 and 2014. The lawsuit seeks disgorgement of excessive compensation as well as damages in an unspecified amount. In July 2016, the Company filed a motion to dismiss the case. In January 2017, the court granted a partial dismissal of the claims and suggested the plaintiffs re-file their petition. Subsequently, the Company re-filed a motion to dismiss the case.
On March 1, 2016, the Company was granted a temporary restraining order against Shelby Systems, Inc. by the District Court for the judicial district of Bexar County, Texas to prevent Shelby Systems from, among others, publishing false information about the Company and interfering with the Company’s customers after the termination of the Company’s referral agreement with Shelby Systems. On July 5, 2016, the Company agreed to dismiss the lawsuit with no further fees due Shelby Systems which netted the Company $97,493 in income.
The Company believes the claims are without merit and it is unlikely that a loss will be incurred; therefore the Company has not accrued for a potential loss. However, the outcomes of the disputes are still uncertain and it is possible the Company may incur legal fees and losses in the future.
Aside from the lawsuits described above, the Company may be involved in legal matters arising in the ordinary course of business.business from time to time. While the Company believes that such matters are currently not material, there can be no assurance that matters arising in the ordinary course of business for which the Company is or could become involved in litigation will not have a material adverse effect on the Company’s business, financial condition or results of operations.
Note 15. Subsequent Events
On March 7, 2017, the Company agreed to provide up to $500,000 to Singular Payments, LLC, a Florida limited liability company, under a secured line of credit promissory note. Interest on the note does not accrue until the earlier of May 31, 2017, the date of closing and funding the Company’s proposed acquisition of Singular Payments or the termination of a non-binding letter of intent regarding the proposed acquisition, or until such mutually agreed upon extended date. Thereafter, interest will accrue at a rate of ten percent per annum. Upon an event of default, interest will accrue at the maximum lawful rate or 15% per annum. The line of credit matures on November 1, 2019.
If the Singular Payments acquisition closes before interest accrues any unpaid principal amount will be offset against the cash portion of the purchase price. If the acquisition does not close on or before interest accrues, any unpaid principal amount plus interest will have to be paid in 30 equal monthly installments. The note may be prepaid in whole or in part at any time and without a penalty.
The line of credit is secured by a security agreement of the same date granting a first security interest over all of Singular Payment’s property, inventory, proceeds, intellectual property, among others, a membership interest pledge agreement over 100% of all Singular Payments, LLC membership interests, and a personal guaranty agreement by Vaden Landers, the sole owner of Singular Payments.
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None.
Evaluation of Disclosure Controls and Procedures
Our management evaluated, with the participation of our Chief Executive Officer /and, our Chief Financial Officer, the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) as of the end of the period covered by this Annual Report on Form 10-K. Based on that evaluation, our Chief Executive Officer /and our Chief Financial Officer concluded that our disclosure controls and procedures as of December 31, 20132016 are effective to ensure that information we are required to disclose in reports that we file or submit under the Exchange Act (i) is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and (ii) is accumulated and communicated to our management, including our Chief Executive Officer /and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required reasonable assurance that such information is accumulated and communicated to our management. Our disclosure controls and procedures are designed to provide reasonable assurance that such information is accumulated and communicated to our management. Our disclosure controls and procedures include components of our internal control over financial reporting. Management's assessment of the effectiveness of our internal control over financial reporting is expressed at the level of reasonable assurance that the control system, no matter how well designed and operated, can provide only reasonable, but not absolute, assurance that the control system's objectives will be met.
Management’s Annual Report on Internal Control Overover Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for our Company. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Our management conducted an assessment of the effectiveness of our internal control over financial reporting as of December 31, 20132016 based on criteria established in “Internal Control—Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, our management concluded that, as of December 31, 2013,2016, our internal control over financial reporting was effective.
Changes in Internal Control Overover Financial Reporting
There was no change in our internal control over financial reporting that occurred during the quarter ended December 31, 20132016 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
None.
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PART III
The information required by this Item is certain information with respectincorporated by reference to the individuals who aredefinitive proxy statement for our executive officers and/or directors as2017 Annual Meeting of December 31, 2013:
Item 405 of Regulation S-K requires the disclosure of, based upon our review of the forms submitted to us during and with respect to our most recent fiscal year, any known failure by any director, officer, or beneficial owner of more than ten percent of any class of our securities, or any other person requiredsubject to Section 16 of the Exchange Act (“reporting person”) to file reports undertimely a report required by Section 16(a) of the Securities Exchange Act of 1934 failed to file such reports on a timely basis during such fiscal year, except seven Form 4s filed by Mr. Hoch were late by one day, three Form 4s were late by 2-3 days and one Form 4 was late by 6 days. AllAct. This disclosure is contained in the trades were executed under a 10(b)5-1 trading plansection entitled “Section 16(a) Beneficial Ownership Reporting Compliance” in which Mr. Hoch did not specify any specific trading days or trading conditions that would give him knowledge of when a trade should occur. As a result, Mr. Hoch was not aware of trade executions in a timely manner.
CODE OF ETHICS
We have adopted a Code of Ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions. Our code of ethics iswas filed as Exhibit 14.1 to our annual report on Form 10-K for the year ended December 31, 2003.2003 on March 30, 2004. We will provide a copy of our code of ethics to any person without charge, upon request. Requests should be addressed to: Payment Data Systems, Inc., Attn: Investor Relations Department, 12500 San Pedro, Suite 120, San Antonio, Texas 78216.
PROCEDURE FOR NOMINATING DIRECTORS
We have not made any material changes to the procedures by which security holders may recommend nominees to our Board of Directors.
We consider recommendations for director candidates from our directors, officers, employees, stockholders, customers and vendors. Stockholders wishing to nominate individuals to serve as directors may submit such nominations, along with a nominee's qualifications, to our Board of Directors at Payment Data Systems, Inc., 12500 San Pedro, Suite 120, San Antonio, Texas, 78216, and the Board of Directors will consider such nominee. The Board of Directors selects the director candidates slated for election. We do not have a separately designated nominating committee in light of resource allocations made by the Board of Directors in its business judgment.
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The following table sets forth the compensation for the fiscal years ended December 31, 2013 and 2012 awarded to, earnedinformation required by or paid to (i) our Principal Executive Officer; and (ii) our two most highly compensated executive officer. We referthis Item is incorporated by reference to the individuals included in the Summary Compensation Table as our “named executive officers.”
| Name and Principal Position | Year Ended Dec. 31, | Salary ($) | Bonus ($) | Stock Awards ($) (1)(2) | All Other Compensation ($)(3) | Total ($) | ||||||||||||||||
Michael R. Long Chairman, | 2013 | 255,000 | (8) | 20,000 | (9) | 87,248 | 12,129 | 374,377 | ||||||||||||||
| Chief Executive Officer | 2012 | 217,699 | (4) | 74,000 | (5) | 78,998 | 12,117 | 382,814 | ||||||||||||||
| and Chief Financial Officer | ||||||||||||||||||||||
| Louis A. Hoch | 2013 | 235,000 | (10) | - | 107,432 | 3,403 | 345,835 | |||||||||||||||
| Vice Chairman, | 2012 | 199,692 | (6) | 74,000 | (7) | 99,182 | 2,520 | 375,394 | ||||||||||||||
| President and | ||||||||||||||||||||||
| Chief Operating Officer | ||||||||||||||||||||||
| Larry Morrison | 2013 | 110,000 | - | 18,582 | 1,702 | 130,284 | ||||||||||||||||
| Vice President, | 2012 | 110,000 | 12,000 | 14,870 | 1,008 | 137,878 | ||||||||||||||||
| Sales and Marketing Officer | ||||||||||||||||||||||
| Option awards (1) | Stock awards | |||||||||||||||||||||||
| Name (a) | Number of securities underlying unexercised options (#) exercisable (b) | Number of securities underlying unexercised options (#) unexercisable (c) | Option exercise price ($) (e) | Option expiration date (f) | Number of shares or units of stock that have not vested (#)(2) (g) | Market value of shares or units of stock that have not vested ($)(3) (h) | ||||||||||||||||||
| Michael R. Long | ||||||||||||||||||||||||
| 12/29/2005 | 381,833 | - | 0.082 | 12/29/2015 | 1,355,972 | 108,478 | ||||||||||||||||||
| 12/27/2006 | - | - | - | - | 2,500,611 | 200,049 | ||||||||||||||||||
| 2/27/2007 | - | - | - | - | 2,500,000 | 200,000 | ||||||||||||||||||
| 1/09/2008 | - | - | - | - | 7,750,000 | 620,000 | ||||||||||||||||||
| 10/04/2012 | - | - | - | - | 1,000,000 | 80,000 | ||||||||||||||||||
| Louis A. Hoch | ||||||||||||||||||||||||
| 12/29/2005 | 586,147 | - | 0.082 | 12/29/2015 | 2,081,536 | 166,523 | ||||||||||||||||||
| 12/27/2006 | - | - | - | - | 4,083,333 | 326,667 | ||||||||||||||||||
| 2/27/2007 | - | - | - | - | 2,500,000 | 200,000 | ||||||||||||||||||
| 1/09/2008 | - | - | - | - | 7,750,000 | 620,000 | ||||||||||||||||||
| 10/04/2012 | - | - | - | - | 1,000,000 | 80,000 | ||||||||||||||||||
| Larry Morrison | ||||||||||||||||||||||||
| 12/29/2005 | 26,975 | - | 0.082 | 12/29/2015 | 95,156 | 7,612 | ||||||||||||||||||
| 12/27/2006 | - | - | - | - | 1,000,000 | 80,000 | ||||||||||||||||||
| 1/09/2008 | - | - | - | - | 700,000 | 56,000 | ||||||||||||||||||
| 10/04/2012 | - | - | - | - | 450,000 | 36,000 | ||||||||||||||||||
Name (a) | Fees earned or paid in cash ($) (b) | Stock awards ($) (c) | Option awards ($) (d) | Non-equity incentive plan compensation ($) (e) | Non-qualified deferred compensation earnings ($) (f) | All other compensation ($) (g) | Total ($) (h) | |||||||||||||||||||||
| Peter G. Kirby (1) | 0 | 6,348 | 0 | 0 | 0 | 0 | 6,348 | |||||||||||||||||||||
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
The following tables set forth,information required by this Item is incorporated by reference to our knowledge, certainthe 2017 Proxy Statement.
The information concerning the beneficial ownership of our common stock as of December 31, 2013 by (i) each stockholder known by usrequired to be disclosed by Item 201(d) of Regulation S-K, “Securities Authorized for Issuance Under Equity Compensation Plans,” appears under the beneficial owner of more than 5% of the outstanding shares of our common stock, (ii) our directors, (iii) each of the named executive officers includedcaption “Equity Compensation Plan Information” in the Summary Compensation Table,2017 Proxy Statement and (iv) all of our directors and executive officers as a group.
| Name and address of beneficial owner | Amount and Nature of Beneficial Ownership | Percent of Shares Beneficially Owned (1) | ||||||
| Robert Evans (2) | 14,020,000 | (2) | 10.1 | % | ||||
| P.O. Box 56, | ||||||||
| Williamsville, IL 62693 | ||||||||
| Amount of Beneficial Ownership | Percent of Shares | |||||||||||||||||
| Name and address of beneficial owner (1) | Nature of beneficial ownership | Shares Owned | Shares – Rights to Acquire (3) | Total | Beneficially Owned (2) | |||||||||||||
| Michael Long (4) | Chief Executive Officer, Chief Financial Officer, and Chairman of the Board | 31,759,169 | 381,833 | 32,141,002 | 23.2 | % | ||||||||||||
| Louis Hoch (5) | President, Chief Operating Officer, and Vice Chairman of the Board | 33,120,333 | 586,147 | 33,706,480 | 24.3 | % | ||||||||||||
| Larry Morrison (6) | Vice President, Sales and Marketing | 2,410,695 | 26,795 | 2,437,490 | 1.8 | % | ||||||||||||
| Peter Kirby (7) | Director | 1,200,500 | 325,000 | 1,525,500 | 1.1 | % | ||||||||||||
| All directors and executive officers as a group (4 persons) | 68,490,697 | 1,319,775 | 69,810,472 | 50.4 | % | |||||||||||||
The information required each to repay his respective obligation to us in four equal annual payments of cash or stock or any combination thereof. In December 2007, we accepted common stock and stock options valued at $133,826 and $112,343 from Mr. Long and Mr. Hoch, respectively, in satisfaction of their annual payments for 2007 as provided for under their respective employment agreements.
The information required by this Item is incorporated by reference to the Independent Accountants
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| 2013 | 2012 | |||||||
| Audit fees | $ | 55,000 | $ | 41,500 | ||||
| Tax fees | 6,070 | 3,350 | ||||||
| Total fees | $ | 61,070 | $ | 44,850 | ||||
PART IV
(a)(1) Consolidated Financial Statements.
The following documents are filed in Part II, Item 8 of this annual report on Form 10-K:
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 20132016 and 2012
Consolidated Statements of Operations for the years ended December 31, 20132016 and 2012
Consolidated Statements of Changes in Stockholders’ Equity (Deficit) for the years ended December 31, 20132016 and 2012
Consolidated Statements of Cash Flows for the years ended December 31, 20132016 and 2012
Notes to Consolidated Financial Statements
(a)(2) Financial Statement Schedules.
All financial statement schedules have been omitted as they are not required, not applicable, or the required information is otherwise included.
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(a)(3) Exhibits.
| Exhibit | ||
| Number | Description | |
| 3.1 | Amended and Restated Articles of Incorporation (included as exhibit 3.1 to the Form 10-KSB filed March 31, 2006, and incorporated herein by reference). | |
| 3.2 | Amended and Restated By-laws (included as exhibit 3.2 to the Form 10-KSB filed March 31, 2006, and incorporated herein by reference). | |
| 3.3 | Articles of Amendment to the Amended and Restated By-laws (included as exhibit A to the Schedule 14C filed April 18, 2007, and incorporated herein by reference). | |
| 4.1 | Amended and Restated 1999 Employee Comprehensive Stock Plan (included as exhibit 4.1 to the Form S-8 filed May 25, 2006, and incorporated herein by reference). | |
| 4.2 | Amended and Restated 1999 Non-Employee Director Plan (included as exhibit 10.2 to the Form 8-K filed January 3, 2006, and incorporated herein by reference). | |
| 4.3 | Employee Stock Purchase Plan (included as exhibit 4.3 to the Form S-8, File No. 333-30958, filed February 23, 2000, and incorporated herein by reference). | |
| 10.1 | Lease Agreement between the Company and Frost National Bank, Trustee for a Designated Trust, dated August 22, 2003 (included as exhibit 10.3 to the Form 10-Q filed November 14, 2003, and incorporated herein by reference). | |
| 10.2 | Employment Agreement between the Company and Michael R. Long, dated February 27, 2007 (included as exhibit 10.1 to the Form 8-K filed March 2, 2007, and incorporated herein by reference). | |
| 10.3 | Employment Agreement between the Company and Louis A. Hoch, dated February 27, 2007 (included as exhibit 10.2 to the Form 8-K filed March 2, 2007, and incorporated herein by reference). |
| 10.4 | Affiliate Office Agreement between the Company and Network 1 Financial, Inc. (included as exhibit 10.11 to the Form SB-2 filed April 28, 2004, and incorporated herein by reference). | |
| 10.5 | Stock Purchase Agreement between the Company and Robert D. Evans, dated January 18, 2007 (included as exhibit 10.1 to the Form 8-K filed January 23, 2007, and incorporated herein by reference). | |
| 10.6 | Stock Purchase Agreement between the Company and Robert D. Evans, dated March 1, 2007 (included as exhibit 10.1 to the Form 8-K filed March 5, 2007, and incorporated herein by reference). | |
| 10.7 | First Amendment to Employment Agreement between the Company and Michael R. Long, dated November 12, 2009 (included as exhibit 10.15 to the Form 10-Q filed November 16, 2009, and incorporated herein by reference). | |
| 10.8 | First Amendment to Employment Agreement between the Company and Louis A. Hoch, dated November 12, 2009 (included as exhibit 10.16 to the Form 10-Q filed November 16, 2009, and incorporated herein by reference). | |
| 10.9 | Second Amendment to Employment Agreement between the Company and Michael R. Long, dated April 12, 2010 (included as exhibit 10.16 to the Form 10-K filed April 15, 2010, and incorporated herein by reference). | |
| 10.10 | Second Amendment to Employment Agreement between the Company and Louis A. Hoch, dated April 12, 2010 (included as exhibit 10.17 to the Form 10-K filed April 15, 2010, and incorporated herein by reference). | |
| 10.11 | Bank Sponsorship Agreement between the Company and University National Bank, dated August 29, 2011 (included as exhibit 10.18 to the Form 10-K filed April 3, 2012, and incorporated herein by reference). | |
| 10.12 | Third Amendment to Employment Agreement between the Company and Michael R. Long, dated January 14, 2011 (included as exhibit 10.19 to the Form 10-K filed April 3, 2012, and incorporated herein by reference). | |
| 10.13 | Third Amendment to Employment Agreement between the Company and Louis A. Hoch, dated January 14, 2011 (included as exhibit 10.20 to the Form 10-K filed April 3, 2012, and incorporated herein by reference). |
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| 10.14 | Fourth Amendment to Employment Agreement between the Company and Michael R. Long, dated July 2, 2012 (included as exhibit 10.18 to the Form 10-Q filed August 20, 2012, and incorporated herein by reference). | |
| 10.15 | Fourth Amendment to Employment Agreement between the Company and Louis A. Hoch, dated July 2, 2012 (included as exhibit 10.19 to the Form 10-Q filed August 20, 2012, and incorporated herein by reference). | |
| 10.16 | Confidential Compromise Settlement Agreement and Full and Final Release by and between FiCentive, Inc. and SmartCard Marketing Systems, Inc., dated November 20, 2012 (included as exhibit 10.1 to the Form 8-K filed November 28, 2012). | |
| 10.17 | First Amendment to Lease Agreement dated August 22, 2003 between the Company and Frost National Bank, Trustee for a Designated Trust, dated February 6, 2006 (included as exhibit 10.17 to the Form 10-K filed April 1, 2013 and incorporated herein by reference). | |
| 10.18 | Second Amendment to Lease Agreement dated August 22, 2003 between the Company and Frost National Bank, Trustee for a Designated Trust, dated October 7, 2009 (included as exhibit 10.18 to the Form 10-K filed April 1, 2013 and incorporated herein by reference). | |
| 10.19 | Third Amendment to Lease Agreement dated August 22, 2003 between the Company and Frost National Bank, Trustee for a Designated Trust, dated October 12, 2013 (included as exhibit 10.19 to the Form 10-K filed April 1, 2013 and incorporated herein by reference). | |
| 10.20 | Asset Purchase Agreement, dated December 22, 2014, by and between Akimbo Financial, Inc. and Payment Data Systems, Inc. (included as exhibit 10.1 to the Form 8-K filed December 23, 2014, and incorporated herein by reference). | |
| 10.21 | Transition Agreement, dated December 22, 2014, by and between Akimbo Financial, Inc. and Payment Data Systems, Inc. (included as exhibit 10.2 to the Form 8-K filed December 23, 2014, and incorporated herein by reference). | |
| 10.22 | Employment Agreement, dated December 23, 2014, by and between Payment Data Systems, Inc. and Houston Frost (included as exhibit 10.3 to the Form 8-K filed December 23, 2014, and incorporated herein by reference). | |
| 10.23 | Employment Agreement, dated March 3, 2015, by and between Payment Data Systems, Inc. and Habib Yunus (included as exhibit 10.1 to the Form 8-K filed March 6, 2015, and incorporated herein by reference). | |
| 10.24 | Fourth Amendment to Lease Agreement, dated August 22, 2003, by and between Payment Data Systems, Inc. and Domicilio OC, LLC as successor-in-interest to Frost National Bank, dated February 12, 2015 (included as exhibit 10.24 to the Form 10-K filed March 30, 2015, and incorporated herein by reference). | |
| 10.25 | Lease Agreement, dated February 12, 2015, by and between FiCentive, Inc. and Domicilio OC, LLC (included as exhibit 10.25 to the Form 10-K filed March 30, 2015, and incorporated herein by reference). | |
| 10.26 | Bank Sponsorship Agreement between the Company and Metropolitan Commercial Bank, dated December 11, 2014 (included as exhibit 10.26 to the Form 10-K filed March 30, 2015, and incorporated herein by reference). | |
| 10.27 | Independent Director Agreement, dated April 24, 2015, by and between Payment Data Systems, Inc. and Kirk Taylor (included as exhibit 10.27 to the Form 10-Q filed August 14, 2015, and incorporated herein by reference). | |
| 10.28 | Independent Director Agreement, dated April 24, 2015, by and between Payment Data Systems, Inc. and Dr. Peter Kirby (included as exhibit 10.28 to the Form 10-Q filed August 14, 2015, and incorporated herein by reference). | |
| 10.29 | Independent Director Agreement, dated April 24, 2015, by and between Payment Data Systems, Inc. and Miguel A. Chapa (included as exhibit 10.29 to the Form 10-Q filed August 14, 2015, and incorporated herein by reference). | |
| 10.30 | Loan and Security Agreement, dated February 2, 2016, by and between C2Go, Inc., as Debtor and FiCentive, Inc., as Lender. (Included as exhibit 10.1 to the Form 8-K filed February 8, 2016, and incorporated herein by reference). | |
| 10.31† | Card Marketing and Processing Agreement, dated February 2, 2016, by and between FiCentive, Inc. and C2Go, Inc. (included as exhibit 10.2 to the Form 8-K filed February 8, 2016, and incorporated herein by reference). | |
| 10.32 | Fifth Amendment to Employment Agreement between the Company and Michael R. Long, dated August 3, 2016 (included as exhibit 10.1 to the Form 8-K filed August 9, 2016, and incorporated herein by reference). | |
| 10.33 | Fifth Amendment to Employment Agreement between the Company and Louis A. Hoch, dated August 3, 2016 (included as exhibit 10.2 to the Form 8-K filed August 9, 2016, and incorporated herein by reference). |
| 41 |
| 10.34 | Sixth Amendment to Employment Agreement between the Company and Michael R. Long, dated September 8, 2016 (included as exhibit 10.1 to the Form 8-K filed September 14, 2016, and incorporated herein by reference). | |
| 10.35 | Sixth Amendment to Employment Agreement between the Company and Louis A. Hoch, dated September 8, 2016 (included as exhibit 10.2 to the Form 8-K filed September 14, 2016, and incorporated herein by reference). | |
| 10.36 | Employment agreement between Tom Jewell and Payment Data Systems, Inc., dated January 6, 2017 (included as exhibit 10.1 to the Form 8-K filed January 6, 2017, and incorporated herein by reference). | |
| 10.37 | Line of Credit Promissory Note, dated March 7, 2017, by and between Singular Payments, LLC, as Borrower and Payment Data Systems, Inc., as Lender (included as exhibit 10.1 to the Form 8-K filed March 13, 2017, and incorporated herein by reference). | |
| 10.38 | Security Agreement, dated March 7, 2017, by and between Singular Payments, LLC, as Debtor and Payment Data Systems, Inc., as Secured Party (included as exhibit 10.2 to the Form 8-K filed March 13, 2017, and incorporated herein by reference). | |
| 10.39 | Membership Interest Pledge Agreement, dated March 7, 2017, by and between Vaden Landers as Pledgor and Payment Data Systems, Inc. (included as exhibit 10.3 to the Form 8-K filed March 13, 2017, and incorporated herein by reference). | |
| 10.40 | Guaranty Agreement, dated March 7, 2017, by and between Vaden Landers as Guarantor and Payment Data Systems, Inc. (included as exhibit 10.4 to the Form 8-K filed March 13, 2017, and incorporated herein by reference). | |
| 10.41 | Independent Director Agreement, dated November 11, 2016, by and between Payment Data Systems, Inc. and Steve Huffman (filed herewith). | |
| 14.1 | Code of Ethics (included as exhibit 14.1 to the Form 10-K filed March 30, 2004, and incorporated herein by reference). | |
| 16.1 | Letter from Ernst and Young LLP to the Securities and Exchange Commission dated February 10, 2004 (included as exhibit 16 to the Form 8-K filed February 11, 2004, and incorporated herein by reference). | |
| 21.1 | Subsidiaries of the Company (included as exhibit | |
| Consent of Akin Doherty Klein & Feuge, P.C. (filed herewith). |
| Certification of the Chief Executive | ||
| 31.2 | Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith). |
| 42 |
| Certification of the Chief Executive | ||
| XBRL Instance Document (filed herewith). | ||
| XBRL Taxonomy Extension Schema Document (filed herewith). | ||
| XBRL Taxonomy Extension Calculation Linkbase Document (filed herewith). | ||
| XBRL Taxonomy Extension Definition Linkbase Document (filed herewith). | ||
| XBRL Taxonomy Extension Label Linkbase Document (filed herewith). | ||
| XBRL Taxonomy Presentation Linkbase Document (filed herewith). | ||
| † | Confidential treatment has been granted for portions of this agreement. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Payment Data Systems, Inc. | ||||
| Date: | By: | /s/ | ||
| (Principal Executive Officer) | ||||
| Date: April 6, 2017 | By: | /s/ Tom Jewell | ||
| Tom Jewell | ||||
| Chief Financial Officer | ||||
| (Principal Financial and Accounting Officer) | ||||
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Date: | By: | /s/ Michael R. Long | ||
| Michael R. Long | ||||
| Chairman of the Board | ||||
| Date: April 6, 2017 | By: | /s/ Tom Jewell | ||
| Tom Jewell | ||||
| Chief Financial Officer | ||||
| ( | ||||
| Date: | By: | /s/ Louis A. Hoch | ||
| Louis A. Hoch | ||||
| President, Chief | ||||
| Date: April 6, 2017 | By: | /s/ Steve Huffman | ||
| Steve Huffman | ||||
| Director | ||||
| Date: | By: | /s/ | ||
| Director | ||||
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