Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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Payment Data Systems, Inc.
(Exact name of Registrant as specified in its charter)
Nevada 98-0190072
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12500 San Pedro, Suite 120
San Antonio, TX 78216
(Address of principal executive offices)
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AMENDED AND RESTATED 1999 EMPLOYEE COMPREHENSIVE STOCK PLAN
(Full title of the Plan)
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Timothy N. Tuggey
Loeffler Jonas & Tuggey LLP
755 E. Mulberry, Suite 200
San Antonio, Texas 78212
(210) 354-4300
(Name, address, telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Registered Proposed Maximum Maximum Amount of Registration
Registered Offering Price Per Aggregate Fee (3)
Share (2) Offering Price (2)
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Common Stock, Par
Value $.001 N/A (1) N/A N/A N/A (4)
======================================================================================================================
(1) This registration statement also relates to such indeterminate number of
additional shares as may be issuable pursuant to the anti-dilution
provisions of the Registrant's Amended and Restated 1999 Employee
Comprehensive Stock Plan.
(2) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, solely for purposes of calculating the registration
fee.
(3) Fee amount paid upon initial filing of Registration Statements on February
23, 2000 (Commission File No. 333-30962) and February 11, 2002 (Commission
File No. 333-82530).
(4) No additional fee is payable because no additional shares are being
registered pursuant to this post effective amendment No. 1.
EXPLANATORY NOTE
Registration Statements 333-30962 and 333-82530, filed with the
Securities and Exchange Commission on February 23, 2000 and February 11, 2002,
respectively, covered, in aggregate, 5,000,000 shares under the Registrant's
1999 Employee Comprehensive Stock Plan (the "Plan"). On December 29, 2003, the
Plan was amended and restated by the Registrant's Board of Directors to add
provisions 1) allowing for stock awards to be made to consultants as provided in
Rule 405 promulgated under the Securities Act of 1933, as amended from time to
time, or other applicable law, 2) increasing the amount of shares of Common
Stock of the Company exercisable per fiscal year from stock options, whether
Incentive Stock Options or nonqualified stock options, from 350,000 to 500,000,
and 3) removing minimum holding periods on "Restricted Stock" (as such term is
defined in the Plan). We are filing this Post-Effective Amendment to the
Registration Statement to amended and restated 1999 Employee Comprehensive
Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents and reports filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) Annual Report of the Registrant on Form 10-K for the year ended
December 31, 2002, Commission File No. 000-30152.
(b) Quarterly Reports of the Registrant on Form 10-Q for the quarters ended
March 31, 2003, June 30, 2003, and September 30, 2003, Commission File
No. 000-30152.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement (Commission File No. 001-15093) filed under
Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description.
Item 4. Description of Securities
The Registrant's common stock is registered pursuant to Section 12 of
the Exchange Act, as amended, and, therefore, the description of the securities
is omitted.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Nevada law generally sets forth the powers of the Registrant to
indemnify officers, directors, employees, and agents. The Articles of
Incorporation for the Registrant provide as follows:
No director or officer shall have any personal liability to the
corporation or its stockholders for the damages for breach of
fiduciary duty as a director or officer, except that this Article
shall not eliminate or limit the liability of a director or
officer for (i) acts or omissions that involve intentional
misconduct, fraud or a knowing violation of the law, or (ii) the
payment of dividends in violation of the Nevada Revised Statutes.
Except to the extent herein above set forth, there is no charter
provision, bylaw, contract, arrangement, or statute pursuant to which any
director or officer of the Registrant is indemnified in any manner against any
liability that he may incur in his capacity as such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Except as noted below, the following Exhibits are filed herewith and
made a part hereof:
Exhibit Description of Document
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4 Amended and Restated 1999 Employee Comprehensive Stock Plan
5 Opinion of Loeffler Jonas & Tuggey LLP
23.1 Consent of Loeffler Jonas & Tuggey LLP (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) For the purpose of determining any liability under the Securities
Act of 1933, as amended, each filing of the Registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as
amended, (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of 1934,
as amended) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Antonio, State of Texas, on this 8th day of
January, 2004.
Payment Data Systems, Inc.
By: /s/ Michael R. Long
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Chairman of the Board, Chief Executive
Officer, and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated as of the dates indicated:
Signatures Titles Date
/s/ Michael R. Long Chairman of the Board, Chief
- -------------------- Executive Officer, Chief Financial Officer, January 8, 2004
Michael R. Long * and Director
/s/ Louis A. Hoch President, Chief Operating Officer,
- ------------------ and Director January 8, 2004
Louis A. Hoch *
/s/ Peter G. Kirby Director
- -------------------
Peter G. Kirby, Ph.D.* January 8, 2004
Michael R. Long, the undersigned attorney-in-fact, by signing his name below,
does hereby sign this Registration Statement on behalf of the directors and
officers of Payment Data Systems, Inc. indicated above by asterisk (constituting
a majority of the directors) pursuant to a power of attorney executed by such
persons and filed with the Securities and Exchange Commission contemporaneously
herewith.
By: /s/ Michael R. Long
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Michael R. Long, as attorney-in-fact
EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Amended and Restated 1999 Employee Comprehensive Stock Plan
5 Opinion of Loeffler Jonas & Tuggey LLP
23.1 Consent of Loeffler Jonas & Tuggey LLP (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney