Exhibit 3.24
As filed with the Securities and Exchange Commission on December 23, 2021
Registration No. 333-253160
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 7
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AppTech Payments Corp.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 7389 | 66-0847995 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
5876 Owens Avenue
Suite 100
Carlsbad, California 92008
(760) 707-5959
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Luke D’Angelo
Chief Executive Officer
5876 Owens Avenue
Suite 100
Carlsbad, California 92008
(760) 707-5959
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Andrew M. Tucker, Esq. Nelson Mullins Riley & Scarborough LLP 101 Constitution Ave NW, Suite 900 Washington, DC 20001 Telephone: (202) 689-2800 |
Ross Carmel, Esq. Philip Magri, Esq. Carmel, Milazzo & Feil LLP 55 W 39th Street, 18th Floor New York, NY 10018 Telephone: (212) 658-0458 |
Approximate date of commencement of proposed sale to public: As soon as practicable after this Registration Statement is declared 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. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If 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. ☐
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.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
| Emerging growth company | ☐ |
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. ☐
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to Be Registered (1) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||||
| Units consisting of shares of Common Stock, par value $0.001 per share, and Warrants to purchase shares of Common Stock included as part of the Units (2)(3) | $ | 17,250,000 | $ | 1,599.08 | ||||
| Common Stock included as part of the Units (4) | $ | $ | — | |||||
| Warrants to purchase shares of Common Stock included as part of the Units (3)(4) | $ | — | $ | — | ||||
| Shares of Common Stock issuable upon exercise of the Warrants (5) | $ | 21,570,871 | $ | 1,999.62 | ||||
| Total (6) | $ | 38,820,871 | $ | 3,598.70 | ||||
| (1) | In the event of a stock split, stock dividend, or similar transaction involving our Common Stock, the number of shares registered shall automatically be increased to cover the additional shares of Common Stock issuable pursuant to Rule 416 under the Securities Act. |
| (2) | Each Unit consists of one share of Common Stock and one Warrant, each Warrant is exercisable for one share of Common Stock at a price per share equal to 125% of the public offering price per Unit. |
| (3) | Includes shares and Warrants that may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any (the “Over-Allotment Option”). |
| (4) | In accordance with Rule 457(i) under the Securities Act, because the shares of the registrant’s common stock underlying the Warrants are registered hereby, no separate registration fee is required with respect to the Warrants registered hereby. |
| (5) | Includes shares of common stock which may be issued upon exercise of additional Warrants which may be issued upon exercise of the Over-Allotment Option. |
| (6) | The registrant previously paid $3,678.85 in connection with a prior 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 this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 7 to the Registration Statement on Form S-1 is being filed to update the exhibit index solely to file certain exhibits to the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the underwriting discounts and commissions, payable by the registrant in connection with the sale of common stock being registered. All amounts are estimates except for the SEC registration fee, and the Financial Industry Regulatory Authority, or FINRA, filing fee.
| Item | Amount to be paid | |||
| SEC registration fee | $ | 3,599 | ||
| FINRA filing fee | 6,341 | |||
| Printing fees and expenses | 10,000 | |||
| Legal fees and expenses | 200,000 | |||
| Accounting fees and expenses | 30,000 | |||
| Transfer agent’s fees and expenses | 7,500 | |||
| Miscellaneous fees and expenses | 71,159 | |||
| Total | $ | 328,599 | ||
Item 14. Indemnification of Directors and Officers
Section 145 of the DGCL, or Section 145, provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
Our bylaws provide that we must indemnify our directors and officers to the fullest extent permitted by the DGCL and must indemnify against all expenses, liability, and loss incurred in investigating, defending or participating in such proceedings.
As of the date of the effectiveness of this registration statement, we will have entered into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and our bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements will provide for the advancement or payment of all expenses to the indemnitee.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to provisions of the State of Nevada, the Company has been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in that Act and is, therefore, unenforceable.
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Item 15. Recent Sales of Unregistered Securities
On January 24, 2019, 275,000 shares of common stock for subscriptions valued at $68,750 were sold.
On March 31, 2019, we issued 7,500 shares of our common stock to Chris Finch consulting services rendered.
On March 31, 2019, we issued 4,500 shares of our common stock to Matt Affa for consulting services rendered.
On April 5, 2019, we issued 300,000 shares of our common stock to Marc Evans for consulting services rendered.
On June 29, 2019, we issued 12,500 shares of our common stock to La Jolla IT Consulting for consulting services rendered.
On July 15, 2019, we issued 100,000 shares of our common stock to Maxim Partner, LLC for financial advisory services rendered.
On July 16, 2019, we issued 30,138 shares to Weseloh Chevrolet, in connection with our merchant equity program.
On July 16, 2019, we issued 7,055 shares to Weseloh KIA, in connection with our merchant equity program.
On July 17, 2019, we issued 7,500 shares of our common stock to Marlop, Inc for consulting services rendered.
On July 17, 2019, we issued 7,500 shares of our common stock to Brian Niggeman for consulting services rendered.
On October 17, 2019, we issued 7,500 shares of our common stock to Marlop, Inc for consulting services rendered.
On October 17, 2019, we issued 7,500 shares of our common stock to Brian Niggeman for consulting services rendered.
On December 19, 2019, we issued 40,000 shares of our common stock to Oglethorpe Properties, LLC in lieu of rent.
On January 6, 2020, we issued 40,000 shares of our common stock to Christine Carroll for consulting services rendered.
On January 6, 2020, we issued 500,000 shares of our common stock to Jeff Moriarty for legal services rendered.
On January 6, 2020, we issued 80,000 shares of our common stock to Kaylei Wright for consulting services rendered.
On January 6, 2020, we issued 30,000 shares of our common stock to Tyler Clark for consulting services rendered.
On January 6, 2020, we issued 1,400,000 shares of our common stock to Virgil Llapitan for consulting services rendered.
On January 17, 2020, we issued 7,500 shares of our common stock to Brian Niggeman for consulting services rendered.
On January 17, 2020, we issued 7,500 shares of our common stock to Marlop, Inc for consulting services rendered.
On January 27, 2020, we issued 175,000 shares of our common stock to Felipe Corrado for consulting services rendered.
On March 31, 2020, we issued 4,500 shares of our common stock to Tyler Clark for consulting services rendered.
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On March 31, 2020, we issued 15,000 shares of our common stock to Kaylei Wright for consulting services rendered.
On March 31, 2020, we issued 15,000 shares of our common stock to Christine Carroll for consulting services rendered.
On March 31, 2020, we issued 75,000 shares of our common stock to Jeff Moriarty for legal services rendered.
On April 1, 2020, we issued 100,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On April 17, 2020, we issued 7,500 shares of our common stock to Brian Niggeman for consulting services rendered.
On April 17, 2020, we issued 7,500 shares of our common stock to Marlop, Inc for consulting services rendered.
On April 17, 2020, we issued 7,500 shares of our common stock to Brian Niggeman for consulting services rendered.
On May 12, 2020, we issued 20,000 shares of our common stock to Brian Niggeman for consulting services rendered.
On May 12, 2020, we issued 20,000 shares of our common stock to Marlop, Inc for consulting services rendered.
On June 30, 2020, we issued 25,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On June 30, 2020, we issued 14,500 shares of our common stock to Tyler Clark for consulting services rendered.
On June 30, 2020, we issued 15,000 shares of our common stock to Kaylei Wright for consulting services rendered.
On June 30, 2020, we issued 15,000 shares of our common stock to Christine Carroll for consulting services rendered.
On June 30, 2020, we issued 75,000 shares of our common stock to Jeff Moriarty for legal services rendered.
On August 26, 2020, we issued 150,000 shares of our common stock to Felipe Corrado for services rendered.
On September 10, 2020, we issued 50,000 shares of our common stock to Pamela Havird for legal services rendered.
On September 16, 2020, we issued 580,000 shares of our common stock to Maxim Partner, LLC for advisory services rendered.
On September 30, 2020, we issued 25,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On September 30, 2020, we issued 9,000 shares of our common stock to Tyler Clark for consulting services rendered.
On September 30, 2020, we issued 15,000 shares of our common stock to Kaylei Wright for consulting services rendered.
On September 30, 2020, we issued 15,000 shares of our common stock to Christine Carroll for consulting services rendered.
On September 30, 2020, we issued 75,000 shares of our common stock to Jeff Moriarty for legal services rendered.
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On October 8, 2020, we issued 50,000 shares of our common stock to Greg Geis for consulting services rendered.
On October 15, 2020, we issued 65,000 shares of our common stock to Mengyin H. Liang, as compensation for her Board of Director services.
On October 17, 2020, we issued 80,000 shares of our common stock to William Huff, as compensation for his Board of Director services.
On October 20, 2020, we issued 75,000 shares of our common stock to Michael O’Neal, as compensation for his Board of Director services.
On October 21, 2020, we issued 50,000 shares of our common stock to Michael Gross, as compensation for his Board of Director services.
On October 21, 2020, we issued 80,000 shares of our common stock to Christopher Williams, as compensation for his Board of Director services.
On October 21, 2020, we issued 250,000 shares of our common stock to Emerging Markets Consulting, LLC for consulting services rendered.
On December 31, 2020, we issued 20,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On December 31, 2020, we issued 19,000 shares of our common stock to Tyler Clark for consulting services rendered.
On December 31, 2020, we issued 15,000 shares of our common stock to Kaylei Wright for consulting services rendered.
On December 31, 2020, we issued 15,000 shares of our common stock to Christine Carroll for consulting services rendered.
On December 31, 2020, we issued 75,000 shares of our common stock to Jeff Moriarty for legal services rendered.
On January 26, 2021, we issued 115,000 shares of our common stock to FON Consulting, LLC for consulting services rendered.
On February 25, 2021, we issued 25,000 shares of our common stock to Zackery I. Ouderkirk for consulting services rendered.
On March 17, 2021, we issued 200,000 shares of our common stock to Agincourt Ventures, LLC, in connection with the purchase of a judgement against FlowPay.
On March 24, 2021, we issued 5,000 shares to American Protections Plan, LLC, in connection with our merchant equity program.
On March 31, 2021, we issued 75,000 shares of our common stock to Jeff Moriarty for legal consulting services rendered.
On March 31, 2021, we issued 20,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On March 31, 2021, we issued 12,000 shares of our common stock to Tyler Clark for consulting services rendered.
On April 13, 2021, we issued 2,051 shares to Mike Bruni, in connection with our merchant equity program.
On May 5, 2021, we issued 24,199 shares to Mark S. Wheeler, in connection with our merchant equity program.
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On June 30, 2021, we issued 15,000 shares of our common stock to Zackery I. Ouderkirk for consulting services rendered.
On June 30, 2021, we issued 20,000 shares of our common stock to Karen Humphreys for consulting services rendered.
On May 14, 2021, we issued 71,053 shares of our common stock to Hybrid Financial Ltd for financial advisory services rendered.
On September 30, 2021, we issued 20,000 shares of our common stock to Karen Humphreys for consulting services rendered.
All issuances were exempt from the registration requirements of the Securities Act of 1933 as they did not involve a public offering under Section 4(a)(2) and were issued as restricted securities as defined in Rule 144 of the Act.
Item 16. Exhibits and Financial Statement Schedules
| (a) | Exhibits |
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| * | Filed herewith |
| ** | To be filed by amendment |
| *** | Previously filed. |
Item 17. Undertakings
| (a) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. |
| (b) | 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 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. |
| (c) | The undersigned Registrant 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 the purpose 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, as amended, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in Carlsbad, California, on December 23, 2021
| AppTech Payments Corp. | ||
| By: | /s/ Luke D’Angelo | |
| Name: Luke D’Angelo | ||
| Title: Chief Executive Officer and Chairman of the Board (Principal Executive Officer) | ||
| Signature | Title | Date | ||
| /s/ Luke D’Angelo | Chief Executive Officer and Chairman of the Board (Principal Executive Officer) | December 23, 2021 | ||
| Luke D’Angelo | ||||
| /s/ Gary Wachs | Chief Financial Officer and Director (Principal Financial Officer) | December 23, 2021 | ||
| Gary Wachs | ||||
| * | Director | December 23, 2021 | ||
| William Huff | ||||
| * | Director | December 23, 2021 | ||
| Mengyin H. Liang “Roz Huang” | ||||
| * | Director | December 23, 2021 | ||
| Michael O’Neal | ||||
| * | Director | December 23, 2021 | ||
| Christopher Williams | ||||
| * | Director | December 23, 2021 | ||
| Michael Yadgar |
| *By: | /s/ Luke D’Angelo | |
| Luke D’Angelo | ||
| Attorney-in-fact |
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Exhibit 3.24
Exhibit 3.25
