UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PAYMENT DATA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
NEVADA 98-0190072
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
12500 SAN PEDRO, SUITE 120
SAN ANTONIO, TX 78216
Telephone: (210) 249-4100
--------------
(Address, Including Zip Code and Telephone Number, of Principal Executive
Offices)
CONSULTING PLAN
(Full Title of the Plans)
MICHAEL R. LONG
CHIEF EXECUTIVE OFFICER
12500 SAN PEDRO
SUITE 120
SAN ANTONIO, TEXAS 78216
(210) 249-4100
(Name, Address and Telephone Number,
including Area Code, of Agent for Service)
Copies of communications to:
AMY M. TROMBLY, ESQ.
TROMBLY BUSINESS LAW
1163 WALNUT STREET, SUITE 7
NEWTON, MA 02461
(617) 243-0060
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount
Title of each Amount to be offering price aggregate offering of
Class of securities registration
To be registered registered(1) per share(2) price(2) fee
Common Stock,
$.001 Par Value 300,000 $0.195 $58,500 $6.84
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
(2) The price of $0.195 per share, which was the average of the high and
low
prices of the Registrant's Common Stock, as reported on the Over-The-Counter
Bulletin Board on May 27, 2005 is set forth solely for purposes of
calculating the registration fee pursuant to Rule 457(c) of the Securities Act
of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Pursuant to the Note to Part I of the Form S-8, the information required by Part
I is not filed with the Securities and Exchange Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Registrant will provide without charge to each person to whom a copy of a
Section 10(a) Prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this Registration
Statement by reference. Requests for such information should be directed to
Payment Data Systems, 12500 San Pedro, Suite 120, San Antonio, TX 78216.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this registration
statement.
a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2004 filed pursuant to Section 13(c) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
b) All other reports filed by Registrant pursuant to Section 13(c) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Form
10-K referred to in (a) above.
c) The description of the common stock, $.001 par value per share (the
"Common Stock") of the Registrant is contained in the Registrant's annual report
on Form 10-KSB.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated in this registration statement by reference and to be
a part hereof from the date of filing of such documents. Any statement contained
in this registration statement, in a supplement to this registration statement
or in a document incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained herein or in any subsequently filed supplement to
this registration statement or in any document that is subsequently incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
No expert or counsel will receive a direct or indirect interest in our company
or was our promoter, underwriter, voting trustee, director or officer or
employee. Nor does any expert or counsel have any contingent based agreement
with us or any other interest in or connection to us.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Nevada law generally sets forth the powers of the Company to indemnify officers,
directors, employees and agents. The Articles of Incorporation for the Company
provide as follows:
No director or officer shall have any personal liability to the corporation
or its stockholders for the damages for breach of fiduciary duty as a
director or officer, except that this Article shall not eliminate or limit
the liability of a director or officer for (i) acts or omissions that
involve intentional misconduct, fraud or a knowing violation of the law, or
(ii) the payment of dividends in violation of Nevada Revised Statutes.
The By-laws of the Company provide as follows:
Every person who was or is a party or is threatened to be made a party to
or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or a person
of whom he is the legal representative is or was a Director or officer of
the corporation or is or was serving at the request of the corporation or
for its benefit as a Director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless to the fullest legally permissible
extent under the general Corporation Law of the State of Nevada from time
to time against all expenses, liability and loss (including attorney's
fees, judgment, fines and amounts paid or to be paid in settlement)
reasonably incurred or suffered by him in connection therewith. The
expenses of officers and Directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as they
are incurred and in advance of the final disposition of the action, suit or
proceeding upon receipt of an undertaking by or on behalf of the Director
or officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation. Such right of indemnification shall be a contract right which
may be enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right which such
Directors, officers or representatives may have or hereafter acquire and,
without limiting the generality of such statement, they shall be entitled
to their respective rights of indemnification under any bylaw, agreement,
vote of stockholders, provision of law or otherwise, as well as their
rights under this Article.
The Board of Directors may cause the corporation to purchase and
maintain insurance on behalf of any person who is or was a Director or
officer of the corporation, or is or was serving at the request of the
corporation as a Director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred in any such
capacity or arising out of such status, whether or not the corporation
would have the power to indemnify such person.
The Board of Directors may from time to time adopt further Bylaws with
respect to indemnification and amend these and such Bylaws to provide at
all times the fullest indemnification permitted by the General Corporation
Law of the State of Nevada.
Under the foregoing provisions of the Registrant's Articles of Incorporation and
By-Laws, each person who is or was a director or officer shall be indemnified by
the Registrant to the full extent permitted or authorized by the General
Corporation Law of Nevada. Under such law, to the extent that such person is
successful on the merits of defense of a suit or proceeding brought against such
person by reason of the fact that such person is a director or officer of
Payment Data Systems, such person shall be indemnified against expenses,
including attorneys' fees, reasonably incurred in connection with such
action. If unsuccessful in defense of a third-party civil suit or a
criminal suit or if such a suit is settled, such a person shall be
indemnified under such law against both (1)
expenses (including attorneys' fees) and (2) judgments, fines and amounts paid
in settlement if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, our best interests, and with
respect to any criminal action, had no reasonable cause to believe such person's
conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
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5.1 Opinion of Amy Trombly, Esq.
10.1 Corporate Consulting Agreement between the Registrant and Theodore Smith
dated April 26, 2005.
23.1 Consent of Akin, Doherty, Klein & Feuge, P.C.
23.2 Consent of Counsel (included in Exhibit 5.1 hereto).
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
1. To file, during any period in which it offers or sells securities are
being made, a post-effective amendment to this registration statement to:
(i) Include any additional or changed material information with
respect to the plan of distribution.
2. For determining liability under the Securities Act of 1933, that
each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
3. File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
For determining any liability under the Securities Act, treat the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in form of prospectus filed by the
Registrant under Rule 424(b)(1), or (4) or 497(h) under the Securities
Act as part of this registration statement as of the time the Commission
declared it effective.
For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-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 the 3rd day of
June, 2005.
PAYMENT DATA SYSTEMS, INC.
By: /s/ Michael Long
-------------------------------------
Michael R. Long
Chief Executive
Officer and Chief Financial Officer
SIGNATURES DATE
By: /s/ Michael R. Long
--------------------------------- June 3, 2005
Michael R. Long
Chief Executive
Officer and Chief Financial Officer
(principal executive officer and
principal financial and accounting officer)
By: /s/ Louis A. Hoch June 3, 2005
---------------------------------
Louis A. Hoch
President, Chief Operating Officer
and Director
By: /s/ Peter G. Kirby June 3, 2005
---------------------------------
Peter G. Kirby
Director
Exhibit 5.1
AMY TROMBLY, ESQ.
1163 Walnut Street, Suite 7
Newton, Massachusetts 02461
(617) 243-00600
June 3, 2005
Payment Data Systems, Inc.
12500 San Pedro, Suite 120
San Antonio, Texas 78216
Gentlemen:
I have acted as counsel to Payment Data Systems, Inc., a Nevada
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-8 (the "Registration Statement"),
pursuant to which the Company is registering under the Securities Act
of 1933, as amended (the "Securities Act"), up to 300,000 shares of its common
stock, $.001 par value per share (the "Shares") which may be issued from time
to time on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act. This opinion is being rendered in connection with the filing
of the Registration Statement. All capitalized terms used herein and not
otherwise defined shall have the respective meanings given to them in
the Registration Statement.
In connection with this opinion, I have examined the Company's Articles of
Incorporation, as amended, and Bylaws, as amended; and such other records
of the corporate proceedings of the Company and certificates of the
Company's officers as I deemed relevant; and the Registration Statement and the
exhibits filed with the Commission.
In my examination, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified or photostatic copies and the authenticity of the originals of
such copies.
Based upon the foregoing, and subject to the limitations set forth below, I am
of the opinion that, once (i) the Registration Statement, as amended, has become
effective under the Securities Act, (ii) the Shares have been issued as
contemplated by the Registration Statement, and (iii) the Company has received
the consideration in the manner described in the Registration Statement, the
Shares will be duly and validly issued, fully paid and non-assessable shares of
the Common Stock.
No opinion is expressed herein with respect to the qualification of the
Shares under the securities or blue sky laws of any state or any
foreign jurisdiction.
This opinion is based upon currently existing statutes, rules, regulations and
judicial decisions, and I disclaim any obligation to advise you of any change in
any of these sources of law or subsequent legal or factual developments which
might affect any matters or opinions set forth herein.
I understand that you wish to file this opinion as an exhibit to the
Registration Statement, and I hereby consent thereto.
Very truly yours,
/s/ Amy Trombly, Esq.
---------------------------
Amy Trombly, Esq.
Exhibit 10.1
CORPORATE CONSULTING AGREEMENT
This Agreement ("Agreement") dated April 26, 2005 is by and between Payment Data
Systems, Inc, a Nevada Corporation (the "Company"), and Theodore Smith of
Edgarization, LLC (the "Consultant"), a Connecticut Corporation.
WHEREAS, the Company is a publicly traded company engaged in the business of the
telecommunications.
WHEREAS, Consultant has unique experience, knowledge and skills regarding
consulting for public companies
WHEREAS, the Company desires to obtain the benefits of Consultant's experience
and know-how, and accordingly, the Company has offered to engage Consultant to
render services to the Company on the terms and conditions hereinafter set
forth;
WHEREAS, Consultant desires to accept such engagement upon such terms and
conditions hereinafter set forth.
NOWTHEREFORE in consideration of the foregoing, the parties agree as follows:
Section 1. SERVICES RENDERED
Consultant shall (i) advise the Company with respect to operations, business
strategy, capital structure and other matters pertaining to the Business as
shall be specified from time to time by the Company's President and/or such
other officer(s) as the Company's Board of Directors shall designate to have
principal responsibility for the operation of the Business and (ii) assist in
reviewing material transactions.
Consultant shall (i) review, transfer and submit to the SEC all filings in
proper electronic EDGAR recognized format on behalf of the Company and (ii)
assist with any reviews and/or revisions of those documents before filing and
complete all filings for the term of this agreement.
Section 2. COMPENSATION
(a) CONSULTING FEES. In consideration for the availability of Consultant during
the term hereunder and the services rendered pursuant to this Agreement,
promptly upon execution of this Agreement, the Company will issue to Consultant
as payment 300,000 (three hundred thousand) fully paid and non-assessable shares
of Common Stock of the Company (the "Shares"). The Shares shall be issued to an
individual designee of the Consultant.
(b) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Consultant for those
reasonable and necessary out-of-pocket expenses which have been approved by the
President of the Company prior to their incurrence and which have been incurred
by Consultant in connection with the rendering of services hereunder. Any
reimbursement to be made by the Company pursuant to this Section shall be made
following submission to the Company by Consultant of reasonable documentation of
the expenses incurred.
(c) REGISTRATION. The Shares issued hereunder shall be promptly registered under
an S-8 Registration Statement or shares will be issued from the Company's
comprehensive stock plan and will be transferred to the Consultant as fully
registered shares.
(d) FILING FEES. For each filing completed with the SEC, the Company shall pay
to the Consultant nine dollars ($9.00) per page of the final copy to be filed
through EDGAR. Additional filing fees of seventy-five dollars ($75.00) will be
applied to each filing EXCEPT those on Form 3, Form 4 and Form 5. Any filings
the Company completes that require extra payment as defined by the SEC and paid
to the SEC shall be the responsibility of the Company.
Section 3. RELATIONSHIP OF PARTIES
This Agreement shall not constitute an employer-employee relationship. It is the
intention of each party that Consultant shall be an independent contractor and
not an employee of the Company. The Company shall not withhold any amounts
therefrom as U.S. federal or state income tax withholding, or as employee
contribution to Social Security or any other employer withholding applicable
under state or federal law.
Section 4. TERM
The term of this Agreement shall be eight (8) months commencing on the date in
the preamble date and year first above written, and will automatically renew
unless canceled Thirty (30) days prior to the end of the term of this agreement,
if not terminated by either party.
Section 5. TERMINATION
This Agreement may be terminated by either party with or without cause with one
hundred-eighty (180) calendar days prior written notice given by the terminating
party. Termination of the Agreement does not relieve the Company of its
obligation to remunerate Consultant pursuant to this Agreement, and the Shares
issued to Consultant upon execution of this Agreement shall be non-refundable.
Upon termination, any outstanding remuneration due Consultant for services
rendered shall be paid prior within 3 (three) business days following
termination.
Section 6. INDEMNIFICATION
Consultant does not guarantee the accuracy, completeness, timeliness, or fitness
for any particular purpose, of the information which it files. Consultant shall
not be liable for any loss, including loss of profits, lost opportunities,
indirect, special, incident, consequential, punitive, or any other damages
whatsoever or other similar damages, resulting directly or indirectly from use
of the Consultant's service.
Consultant shall not be liable for any loss due either to their negligence or to
any cause beyond their reasonable control.
Consultant assumes no responsibility or liability for any inaccuracies,
misstatements, errors, or fabrications, contained within documents, data,
materials, for which it is responsible to file, either through error or
negligence. The Company agrees to hold Consultant and its officers, directors,
employees, agents and consultants harmless for any and all claims, losses, costs
or damage whatsoever arising out of, resulting from, or in any way related to
the use of electronic data files provided by Company, whether that use is
authorized or unauthorized, for any act resulting directly or indirectly from
any filings, its data, content, materials, and documents. Consultant bears no
responsibility for the information in the electronic data files once it leaves
the Consultant's office or web site. The undersigned understands that the
electronic data files are subject to applicable copyright laws and agrees to be
bound by same.
Section 7. GOVERNING LAW
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without regard to the conflict of law rules of such state. Any
controversy, claim or dispute arising out of this Agreement, shall settled by
binding arbitration in the County of Suffolk, MA in accordance with the rules of
the American Arbitration Association there in effect, except that the parties
thereto shall have any right to discovery as would permitted by the Federal
Rules of Civil Procedure. The prevailing Party shall be entitled to
reimbursement of actual costs and attorney's fees from the arbitration and the
decision of the Arbitrator(s) shall be final.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
Payment Data Systems, Inc.
/s/ Michael Long
------------------
Name: Michael Long
Title: CEO
Consultant
/s/ Theodore J. Smith, Jr.
------------------------------
By: Theodore J. Smith, Jr.
Exhibit 23.1
AKIN, DOHERTY, KLEIN & FEUGE, P.C.
Certified Public Accountants
8610 North New Braunfels, Suite 101
San Antonio, Texas 78217
Telephone: 210 829-1300
Fax: 210 829-4080
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants for Payment Data Systems, Inc. (the
"Company"), we hereby consent to the incorporation by reference in this
Registration Statement of our report dated February 18, 2005, except for Note
15, to which the date is March 11, 2005, included in the Company's Form 10-KSB
for the year ended December 31, 2004, and to all references to our firm included
in this Registration Statement.
/s/ Akin, Doherty, Klein & Feuge
Akin, Doherty, Klein & Feuge, P.C.
San Antonio, Texas
By: /s/ Thomas A. Akin
Date: June 3, 2005