Paysign, Inc S-1/A, filed Jun 25, 2020
Paysign, Inc. (PAYS)
As filed with the Securities and Exchange Commission on June 25, 2020
Registration No. 333-239327
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PAYSIGN, INC.
(Exact name of registrant as specified in its charter)
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Nevada (State or other jurisdiction of incorporation or organization) |
95-4550154 (I.R.S. Employer Identification Number) |
2615 St. Rose Parkway
Henderson, Nevada 89052
(404) 239-2863
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Robert Strobo
General Counsel and Chief Legal Officer
2615 St. Rose Parkway
Henderson, Nevada 89052
(702) 749-7261
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Brian Blaney, Esq.
Greenberg Traurig, LLP
2375 E Camelback Road, Suite 700
Phoenix, AZ 85016
(602) 445-8322
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o Non-accelerated filer x |
Accelerated filer o Smaller reporting company x Emerging growth company x |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Unit |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee | |
| Common Stock, par value $0.001 per share | 1,514,166 | $7.35 (2) | $11,129,120.10 (2) | $1,444.56 (3) | |
| (1) | Pursuant to Rule 416 under the Securities Act, there are also being registered an indeterminable number of additional shares of common stock as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low prices of the Registrant’s common stock on June 15, 2020, as reported on the Nasdaq Capital Market. |
| (3) | A filing fee in the amount of $1,444.56 was previously paid on June 19, 2020, upon the initial filing of this Registration Statement. |
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Paysign, Inc. (alternatively, the “Registrant”, “we”, “us”, “our”, “our company” and “Paysign”) is filing this Amendment No. 1 (the “Amendment”) to its Registration Statement on Form S-1 (Registration Statement No. 333-239327) (the “Registration Statement”) solely for the purpose of filing Exhibit numbers 5 and 23.2 and updating the Item 17 undertakings. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page, and the filed exhibits. The prospectus is unchanged and therefore has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The estimated expenses payable by us in connection with the offering described in this registration statement will be as follows:
| SEC registration fee | $ | 1,445 | ||
| Legal fees and expenses | 5,000 | |||
| Accounting fees and expenses | 15,000 | |||
| Printing expenses | 1,000 | |||
| Miscellaneous fees and expenses | 2,555 | |||
| Total | 25,000 |
Item 14. Indemnification of Directors and Officers.
Under Article V.B of our Articles of Incorporation, we are required to indemnify and hold harmless, to the fullest extent permitted by Nevada law, our officers and directors. Furthermore, Article V.C of our Articles of Incorporation, we are required to advance any expenses of an officer or director incurred in defending a civil or criminal action, suit or proceeding 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 or she is not entitled to be indemnified by the corporation.
Under Article VII of our Bylaws, we required to indemnify, to the fullest extent required by Nevada law, each director or officer who was or is a party to, or is threatened to be made a party to, or is otherwise involved in, any proceeding, by reason of the fact that he or she is or was our director or officer or member, manager, or managing member of a predecessor limited liability company or affiliate of such limited liability company, or is or was serving in any capacity at our request as a director, officer, employee, agent, partner, member, manager, or fiduciary of, or in any other capacity for, another corporation or any partnership, joint venture, limited liability company, trust, or other enterprise or affiliate. Indemnification may not be made to or on behalf of an indemnitee if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud, or a knowing violation of law and was material to the cause of action. Furthermore, we are required to advance expenses to an indemnitee in advance of a final disposition of the proceeding.
The indemnification provided by our Articles of Incorporation and Bylaws is not exclusive of any rights to which those indemnified may be entitled under any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
In addition, the registrant maintains directors’ and officers’ liability insurance which insures against liabilities that its directors and officers may incur in such capacities.
Item 15. Recent Sales of Unregistered Securities.
During the quarter ended March 31, 2020, we issued, pursuant to an exemption from registration provided by Section 4(2) of the Securities Act of 1933, a total of 428,558 shares of common stock for restricted stock shares previously earned and vested as well as 10,000 shares of common stock for stock options exercised.
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Item 16. Exhibits and Financial Statement Schedules.
| Exhibit Number |
Description of Exhibits | |
| 3.1 | Amended and Restated Articles of Incorporation dated April 23, 2019 (3) | |
| 3.2 | Amended and Restated Bylaws (2) | |
| 4.1 | Form of Warrant (1) | |
| 5.1* | Opinion of Greenberg Traurig, LLP as to the validity of the common stock | |
| 10.1 | Share Exchange Agreement between 3PEA International, Inc. and WOW Technologies, Inc. (1) | |
| 10.2 | Form of Restricted Stock Award (4) | |
| 10.3 | 2018 Incentive Compensation Plan (5) | |
| 10.4 | Form of Incentive Stock Option Agreement (5) | |
| 10.5 | Form of Non-Qualified Stock Option Agreement (5) | |
| 10.6 | Form of Restricted Stock Agreement (5) | |
| 10.7 | Non-Qualified Stock Option Agreement for Dan Henry (6) | |
| 21 | Subsidiaries of Registrant (7) | |
| 23.1+ | Consent of Independent Registered Public Accounting Firm | |
| 23.2* | Consent of Greenberg Traurig, LLP (included in Exhibit 5.1) | |
| 24+ | Power of Attorney |
* Filed herewith.
+ Previously filed.
| (1) | Incorporated by reference to our Registration Statement on Form 10 filed on September 16, 2010. |
| (2) | Incorporated by reference to our Current Report on Form 8-K filed on May 22, 2018. |
| (3) | Incorporated by reference to our Current Report on Form 8-K filed on September 9, 2019. |
| (4) | Incorporated by reference to our Form S-8 filed on March 29, 2019 (File Number 333-230634). |
| (5) | Incorporated by reference to our Form S-8 filed on March 29, 2019 (File Number 333-230632). |
| (6) | Incorporated by reference to our Form S-8 filed on August 22, 2019. |
| (7) | Incorporated by reference to our Form 10-K filed on April 3, 2020. |
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Item 17. 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;
(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 prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933, shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the 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 Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Henderson, State of Nevada on the 25 day of June, 2020.
| PAYSIGN, Inc. | |||
| By: | /s/ Mark Newcomer | ||
| Name: | Mark Newcomer, Chief Executive 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 and on the dates indicated.
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Signature |
Title |
Date |
| /s/ Mark Newcomer | Chief Executive Officer and Director (Principal Executive Officer) | June 25, 2020 |
| Mark Newcomer | ||
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/s/ Mark Attinger |
Chief Financial Officer (Principal Financial and Accounting Officer) | June 25, 2020 |
| Mark Attinger | ||
| * | Chief Technology Officer and Director | June 25, 2020 |
| Daniel Spence | ||
| * | Chief Operating Officer and Director | June 25, 2020 |
| Joan Herman | ||
| * | Director and Chairman | June 25, 2020 |
| Dan Henry | ||
| * | Director | June 25, 2020 |
| Bruce Mina | ||
| * | Director | June 25, 2020 |
| Dennis Triplett | ||
| * | Director | June 25, 2020 |
| Quinn Williams |
| *By: | /s/ Mark Attinger | |
| Mark Attinger | ||
| Attorney-in-fact |
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Exhibit 5.1
[Letterhead of Greenberg Traurig, LLP]
June 25, 2020
Paysign, Inc.
2615 St. Rose Parkway
Henderson, Nevada 89052
Re: Registration Statement on Form S-1 (File No. 333-239237)
Ladies and Gentlemen:
We have acted as counsel to Paysign, Inc., a Nevada corporation (the “Company”), in connection with the Company’s registration of 1,514,166 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), covered by the above-referenced registration statement (including the prospectus contained therein, the “Registration Statement”), filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the resale of the Shares by the selling stockholders (the “Selling Stockholders”) named in the Registration Statement. The Shares include (i) 264,166 shares of Common Stock owned by the Selling Stockholders (the “Owned Shares”), (ii) 750,000 shares of Common Stock to be received by the Selling Stockholders upon vesting of restricted stock awards by the Company (the “Vesting Shares”), and (ii) 500,000 shares of Common Stock that may be received by the Selling Stockholders upon exercise of options awards by the Company (the “Option Shares”).
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
In connection with our representation of the Company and the preparation of this opinion letter, we have examined, considered and relied upon the following documents (collectively, the “Documents”):
1. the Registration Statement and all amendments thereto, and the related form of prospectus contained therein, in the form in which it was transmitted to the Commission;
2. the Company’s Amended and Restated Articles of Incorporation, as filed with the Secretary of State of the State of Nevada;
3. the Company’s Amended and Restated Bylaws;
4. restricted stock and option agreements (the “Award Agreements”) between the Company and each of the Selling Stockholders, pertaining to the Vesting Shares and the Option Shares;
Paysign, Inc.
June 25, 2020
Page 2
5. resolutions adopted by the Board of Directors of the Company in respect of the Award Agreements and the issuance of the Shares, certified as of the date hereof by an officer of the Company; and
6. such other documents and matters of law as we have considered necessary or appropriate for the expression of the opinions contained herein.
In rendering the opinions set forth below, we have assumed without investigation the following: (i) the genuineness of all signatures and the authenticity of all Documents submitted to us as originals, the conformity to authentic original documents of all Documents submitted to us as copies and the veracity of the Documents; (ii) each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so; (iii) each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory; and (iv) the obligations of each party set forth in the Documents are valid and binding obligations of such party and are enforceable against such party in accordance with all stated terms.
As to various questions of fact material to this opinion, we have relied, to the extent we deemed reasonably appropriate, upon representations of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independently checking or verifying the accuracy of such representations, documents, records and instruments.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations set forth herein, we are of the opinion that:
| A. | The Owned Shares have been duly authorized and are validly issued, fully paid and nonassessable. |
| B. | The Vesting Shares have been duly authorized and, when delivered by the Company in accordance with the terms of the applicable Award Agreements, will be validly issued, fully paid and nonassessable. |
| C. | The Option Shares have been duly authorized and, when delivered by the Company upon exercise of the options and upon payment therefore, in accordance with the terms of the applicable Award Agreement, will be validly issued, fully paid and nonassessable. |
This opinion letter is limited to the matters stated herein, and no opinions may be implied or inferred beyond the matters expressly stated herein. The opinions expressed herein are as of the date hereof, and we assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur. We do not express any opinion herein concerning any law other than the laws of the State of Nevada and the federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the caption “Legal Matters” in the prospectus comprising part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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Very truly yours,
/s/ GREENBERG TRAURIG, LLP
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