S-8
As
filed with the U.S. Securities and Exchange Commission on November 19, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HEARTLAND PAYMENT SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE
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22-3755714 |
(State or Other Jurisdiction of
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(I.R.S. Employer |
Incorporation or
Organization)
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Identification No.) |
90 Nassau Street
Princeton, New Jersey 08542
(609) 683-3831
(Address of Principal Executive Offices)
2008 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Charles H.N. Kallenbach
General Counsel, Chief Legal Officer and Secretary
Heartland Payment Systems, Inc.
Princeton, New Jersey 08542
(Name and Address of Agent For Service)
(609) 683-3831
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Wesley Fredericks, Jr.
Goodwin Procter LLP
620 Eighth Avenue
New York, NY 10018
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
definition of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Amount |
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Proposed Maximum |
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Maximum |
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Amount of |
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Title of Each Class of |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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Securities to be Registered |
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Registered (1) |
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Per Share (2) |
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Offering Price |
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Fee |
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2008 Equity Incentive Plan
Common Stock $0.001, par
value per share |
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7,250,000 |
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$ |
15.64 |
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$ |
113,390,000 |
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$ |
4,456.23 |
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended (the Securities
Act), Common Stock offered hereby shall also be deemed to cover additional securities to be
offered or issued to prevent dilution resulting from stock splits, stock dividends or similar
transactions effected without the Registrants receipt of consideration that results in an increase
in the number of the Registrants outstanding shares of Common Stock.
(2) Estimated solely for the purpose of computing the amount of registration fee pursuant to Rule
457(c) under the Securities Act, based on the average of the high and low prices of the
Registrants Common Stock reported on the New York Stock Exchange on November 14, 2008.
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed with the Securities and Exchange Commission (the
Commission) by the Registrant are incorporated by reference in this Registration Statement:
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(a) |
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The Registrants Annual Report on Form 10-K for the fiscal year ended December
31, 2007; |
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(b) |
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The Registrants Quarterly Reports on Form 10-Q for each of the quarters ended
March 31, 2008, June 30, 2008 and September 30, 2008; |
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(c) |
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The Registrants Current Reports on Form 8-K filed on February 13, 2008, May,
1, 2008, May 8, 2008, May 16, 2008, June 4, 2008, August 5, 2008, August 7, 2008 and
November 4, 2008 (other than reports or portions of reports furnished but not filed
pursuant to Commission rules); |
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(d) |
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All other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year
covered by the Annual Report referred to in (a) above; and |
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(e) |
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The description of the Registrants Common Stock contained in the Registrants
Registration Statement on Form 8-A filed with the Commission on August 4, 2005 under
the Exchange Act, as amended, including any amendments or reports filed for the purpose
of updating such description. |
All documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and prior to the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference into this Registration Statement and to be a
part hereof from the respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be 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 other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
a director, officer, employee or agent made a party to an action by reason of that fact that he or
she was a director, officer, employee or agent of the corporation or was serving at the request of
the corporation against expenses actually and reasonably incurred by him or her in connection with
such action if he or she acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation and with respect to any criminal
action, had no reasonable cause to believe his or her conduct was unlawful.
The Registrants Certificate of Incorporation reduces the liability of a director to the
corporation or its stockholders for monetary damages for breaches of his or her fiduciary duty of
care to the fullest extent permissible under Delaware law. The Bylaws of the Registrant further
provide for indemnification of corporate agents to the maximum extent permitted by the Delaware
General Corporation Law. In addition, the Registrant has entered into Indemnification Agreements
with its officers and directors and maintains directors and officers liabilities insurance.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions,
the Registrant has been informed that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act, and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Item No. |
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Description of Exhibits |
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4.1
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Amended and Restated Certificate of Incorporation of Heartland
Payment Systems, Inc. (Incorporated by reference to Exhibit 3.3
in the Registrants Registration Statement on Form S-1, as
amended (333-118073)). |
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4.2
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Amended and Restated By-Laws of Heartland Payment Systems, Inc.
(Incorporated by reference to Exhibit 3.2 in the Registrants
Form 10-K filed on March 10, 2008). |
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4.3
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Registration Rights Agreement dated August 2, 2005 (Incorporated
by reference to Exhibit 4.2 in the Registrants Form 8-A filed on
August 4, 2005). |
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4.4
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2008 Equity Incentive Plan. * |
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4.5
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Form of Employee Incentive Stock Option Agreement Under 2008
Equity Incentive Plan. * |
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5.1
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Opinion of Goodwin Procter LLP. * |
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23.1
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Consent of Independent Registered Public Accounting Firm. * |
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23.2
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Consent of Independent Registered Public Accounting Firm. * |
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23.3
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Consent of Goodwin Procter LLP (filed as part of Exhibit 5.1). * |
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Item No. |
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Description of Exhibits |
24.1
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Power of Attorney (see signature page). * |
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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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
dollar value of securities 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 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
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 this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section do not apply if 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 Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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. The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 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
Commission 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Princeton, state of New Jersey, this 18 day of November, 2008.
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HEARTLAND PAYMENT SYSTEMS, INC.
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By: |
/s/ Charles H.N. Kallenbach
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Charles H.N. Kallenbach |
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General Counsel, Chief Legal Officer and Secretary |
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POWER OF ATTORNEY
The officers and directors of the Registrant whose signature appears below constitute and
appoint Charles H.N. Kallenbach their true and lawful attorney-in-fact and agent, acting alone,
with full power of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post effective amendments) to this
Registration Statement on Form S-8, and to sign any registration statement for the same offering
covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act, and all post effective amendments thereto, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
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SIGNATURE |
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TITLE |
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DATE |
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/s/ Robert O. Carr
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Chairman of the Board and Chief Executive Officer
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November 18, 2008 |
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(Principal
Executive Officer) |
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/s/ Robert H.B. Baldwin, Jr.
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President and Chief Financial Officer
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November 18, 2008 |
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(Principal
Accounting and Financial Officer) |
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/s/ Mitchell L. Hollin
Mitchell L. Hollin
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Director
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November 18, 2008 |
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/s/ Robert H. Niehaus
Robert H. Niehaus
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Director
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November 18, 2008 |
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/s/ Marc J. Ostro
Marc J. Ostro
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Director
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November 18, 2008 |
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/s/ Jonathan J. Palmer
Jonathan J. Palmer
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Director
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November 18, 2008 |
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/s/ George F. Raymond
George F. Raymond
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Director
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November 18, 2008 |
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Director
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II-7
INDEX TO EXHIBITS
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Item No. |
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Description of Exhibits |
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4.1
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Amended and Restated Certificate of Incorporation of Heartland
Payment Systems, Inc. (Incorporated by reference to Exhibit 3.3
in the Registrants Registration Statement on Form S-1, as
amended (333-118073)). |
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4.2
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Amended and Restated By-Laws of Heartland Payment Systems, Inc.
(Incorporated by reference to Exhibit 3.2 in the Registrants
Form 10-K filed on March 10, 2008). |
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4.3
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Registration Rights Agreement dated August 2, 2005 (Incorporated
by reference to Exhibit 4.2 in the Registrants Form 8-A filed on
August 4, 2005). |
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4.4
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2008 Equity Incentive Plan. * |
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4.5
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Form of Employee Incentive Stock Option Agreement Under 2008
Equity Incentive Plan. * |
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5.1
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Opinion of Goodwin Procter LLP. * |
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23.1
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Consent of Independent Registered Public Accounting Firm. * |
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23.2
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Consent of Independent Registered Public Accounting Firm. * |
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23.3
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Consent of Goodwin Procter LLP (filed as part of Exhibit 5.1). * |
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24.1
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Power of Attorney (see signature page). * |
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