Attached files
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
(MARK
ONE)
x QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
for the fiscal
year ended December 31, 2009
OR
o TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
for the transition period from
___________ to ___________
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000-17874
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(Commission
file number)
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GLOBAL
AXCESS CORP.
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(Exact
name of registrant as specified in its charter)
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NEVADA
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88-0199674
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(State or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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7800
BELFORT PARKWAY, SUITE 165
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JACKSONVILLE,
FLORIDA
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32256
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(Address
of principal executive offices)
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(Zip
Code)
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(904)
280-3950
(Registrant's
telephone number, including area code)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes ¨ No x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No ¨
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files). Yes ¨ No ¨
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. ¨
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 definitions of “large accelerated filer,” “accelerated
filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated Filer ¨
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Accelerated
Filer ¨
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Non-accelerated
Filer ¨
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Smaller
reporting company x
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of Exchange Act). Yes ¨ No x
As of
June 30, 2009, the aggregate market value of the registrant’s common stock held
by non-affiliates of the registrant was $9,373,696.
As of
January 25, 2011, the registrant had 22,139,444 shares outstanding of the common
stock ($0.001 par value).
EXPLANATORY
NOTE
This Form
10-K/A amends Global Axcess Corp.’s (the “Company”) Annual Report on Form 10-K
for the fiscal year ended December 31, 2009 (the “Original 10-K”) filed with the
Securities and Exchange Commission (the “SEC”) on March 3, 2010 in response to
comments issued by the SEC and to clarify certain prior
disclosures. This Form 10-K/A contains changes to the Cover Page;
Part II—Item 9A(T) (Controls and Procedures) and Part IV—Item 15
(Exhibits).
In
response to SEC comments, certain exhibits have been re-filed herewith, but the
entire exhibit list has been reproduced with information contained therein
updated as appropriate. In addition, Exhibit 10.3 of this Form 10/K-A
has been substituted for Exhibit 10.3 in the Original 10-K, which exhibit the
Company has concluded was not required to be included in the Original
10-K. Further, Exhibit 10.6 has been deleted from the exhibit list in
this Form 10-K/A as the Company concluded that it was erroneously filed in the
Original 10-K.
In
accordance with Sections 302 and 906 of the Sarbanes-Oxley Act of 2002,
currently dated certifications of the Company’s principal executive officer and
principal financial officer are attached to this Form 10-K/A as Exhibits 31.1,
31.2, 32.1 and 32.2, and the text of Exhibits 32.1 and 32.2 have been amended to
reflect SEC comments.
Except
for the foregoing amended information, the Company has not updated the
disclosures contained in the Original 10-K to reflect events that have occurred
subsequent to the filing date of the Original 10-K. Accordingly, this
Form 10-K/A should be read in conjunction with the Original 10-K and our
subsequent filings with the SEC.
Part
II, Item 9A(T). Controls and Procedures
Evaluation of Disclosure
Controls and Procedures
As
required by Rule 13a-15 under the Exchange Act, as of the end of the period
covered by this report, we have carried out an evaluation of the effectiveness
of the design and operation of our Company’s disclosure controls and
procedures. Under the direction of our Chief Executive Officer and
Chief Financial Officer, we evaluated our disclosure controls and procedures and
internal control over financial reporting and concluded that our disclosure
controls and procedures were effective as of December 31, 2009.
Disclosure
controls and procedures and other procedures are designed to ensure that
information required to be disclosed in our reports or submitted under the
Securities Exchange Act of 1934 is recorded, processed, summarized and reported
within the time period specified in the Securities and Exchange Commission’s
rules and forms. Disclosure controls and procedures include, without limitation,
controls and procedures designed to ensure that information required to be
disclosed in our reports filed under the Securities Exchange Act of 1934 is
accumulated and communicated to management, including our principal executive
and principal financial officers, as appropriate to allow timely decisions
regarding required disclosure.
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Part
II, Item 6.
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Exhibits
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Exhibit
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Description
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3.1
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Articles
of Incorporation – Restated and Amended May 30, 2001(incorporated by
reference to form 10-KSB filed with the SEC on March 31,
2003).
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3.2
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ByLaws
of Global Axcess Corp – As Amended (incorporated by reference to Form
10-KSB filed with the SEC on March 31, 2003).
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3.3
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Amendment
to the Articles of Incorporation (originally filed on Form 8-K with the
SEC on May 3, 2005; filed herewith to provide conformed
signatures).*
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4.1
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Securities
Purchase Agreement dated October 27, 2005 entered by and between the
Company and the Investor (originally filed on Form 8-K with the SEC on
November 1, 2005; filed herewith to provide conformed
signatures).*
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4.2
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Common
Stock Purchase Warrant dated October 27, 2005 issued by the Company to the
Investor (originally filed on Form 8-K with the SEC on November 1, 2005;
filed herewith to provide conformed signatures).*
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4.3
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Registration
Rights Agreement dated October 27, 2005 entered by and between the Company
and the Investor (originally filed on Form 8-K with the SEC on November 1,
2005; filed herewith to provide conformed signatures).*
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4.4
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Subsidiary
Guarantee dated October 27, 2005 (originally filed on Form 8-K with the
SEC on November 1, 2005; filed herewith to provide conformed
signatures).*
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4.5
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Security
Agreement dated October 27, 2005 entered by and between the Company and
the Investor (originally filed on Form 8-K with the SEC on November 1,
2005; filed herewith to provide conformed signatures).*
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10.1
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Agreement
entered into with Food Lion, LLC and Nationwide Money Services, Inc dated
October 5, 2001 (originally filed on Form 10-KSB with the SEC on April 16,
2002; filed herewith to provide conformed signatures).
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10.2
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Distributor
ATM Processing Agreement between Nationwide Money Services and Genpass
Technologies LLC dated December 15, 2005 (incorporated by reference to
Form 8-K filed with the SEC on December 20, 2005).
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10.3
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Cash
Provisioning Agreement, dated June 1, 2009, by and between U.S. Bank, a
national association doing business as Elan Financial Services, Nationwide
Money Services, Inc. and Pendum, LLC.*
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10.4
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Office
Lease with Surburban Owner LLC (originally filed on Form 8-K with the SEC
on March 27, 2007; filed herewith to provide conformed
signatures).*
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10.5
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Net
Enterprise Value Special Transaction Plan (incorporated by reference to
Form 8-K filed June 14, 2007) (Management compensation plan or
arrangement).
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10.6
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[Intentionally
Omitted]
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10.7
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Separation
Agreement and Release by and between the Company and Michael Dodak
(originally filed on Form 8-K with the SEC on October 11, 2006; filed
herewith to provide conformed signatures).*
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10.8
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Separation
Agreement and Release by and between the Company and David Fann
(originally filed on Form 8-K with the SEC on October 11, 2006; filed
herewith to provide conformed signatures).*
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10.9
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Employment
Agreement dated July 1, 2008 by and between the Company and George McQuain
(incorporated by reference to Form 8-K filed July 2, 2008) (Management
compensation plan or arrangement).
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10.10
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Director
Compensation Arrangements (incorporated by reference to Form 10-Q filed
August 7, 2008) (Management compensation plan or
arrangement).
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10.11
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Settlement
Agreement, effective as of August 12, 2008, between the Company and CAMOFI
Master LDC (incorporated by reference to Form 8-K filed August 18,
2008).
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10.12
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First
Modification to Settlement Agreement, dated November 6, 2008, between the
Company and CAMOFI Master LDC (originally filed on Form 8-K with the SEC
on November 10, 2008; filed herewith to provide conformed
signatures).*
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10.13
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2002
Stock Incentive Plan (incorporated by reference to Form S-8 filed December
10, 2003).
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10.14
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First
Amendment to 2002 Stock Incentive Plan (originally filed on Form 10-K with
the SEC on March 3, 2009; filed herewith to provide conformed
signatures).*
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10.15
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2004
Stock Incentive Plan (originally filed on Form S-8 with the SEC on June
25, 2004).
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10.16
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First
Amendment to 2004 Stock Incentive Plan. (originally filed on Form 10-K
with the SEC on March 3, 2009; filed herewith to provide conformed
signatures).*
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10.17
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Mediated
Settlement Agreement, dated January 22, 2009, by and between the Company
and Sidney Michael Cole (originally filed on Form 10-K with the SEC on
March 3, 2009; filed herewith to provide conformed signatures) (This
agreement has been redacted pursuant to a confidential treatment request
filed with the SEC on the date hereof).*
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10.18
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Settlement
Agreement, effective as of March 17, 2009, between Global Axcess Corp and
CAMOFI Master LDC (originally filed on Form 8-K with the SEC on March 23,
2009; filed herewith to provide conformed signatures).*
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10.19
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Credit
and Security Agreement, dated as of March 27, 2009, by and among Global
Axcess Corp and SunTrust bank (originally filed on Form 8-K with the SEC
on March 30, 2009; filed herewith to provide conformed
signatures).*
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10.20
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Promissory
Note, dated March 27, 2009, issued by Global Axcess Corp to SunTrust Bank
(originally filed on Form 8-K with the SEC on March 30, 2009; filed
herewith to provide conformed signatures).*
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10.21
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Credit
and Security Agreement, dated as of December 23, 2009, by and among Global
Axcess Corp and SunTrust Bank (originally filed on Form 8-K with the SEC
on December 30, 2009; filed herewith to provide conformed
signatures).*
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10.22
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Promissory
Note, dated December 23, 2009, issued by Global Axcess Corp to SunTrust
Bank (originally filed on Form 8-K with the SEC on December 30, 2009;
filed herewith to provide conformed signatures).*
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10.23
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Loan
and Security Agreement, dated December 29, 2009, by Global Axcess Corp to
Proficio Bank (originally filed on Form 8-K with the SEC on December 30,
2009; filed herewith to provide conformed signatures).*
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10.24
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Master
Non-Revolving Line of Credit Note, dated December 29, 2009, issued by
Global Axcess Corp to Proficio Bank (originally filed on Form 8-K with the
SEC on December 30, 2009; filed herewith to provide conformed
signatures).*
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21.1
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List
of Subsidiaries:
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Nationwide
Money Services, Inc., a Nevada corporation
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Nationwide
Ntertainment Services, Inc., a Nevada corporation
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EFT
Integration, Inc., a Florida corporation
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23.1
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Consent
of Kirkland, Russ, Murphy & Tapp, P.A.
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31.1
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Certification
of the Chief Executive Officer of Global Axcess Corp. pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.*
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31.2
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Certification
of the Chief Financial Officer of Global Axcess Corp. pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.*
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32.1
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Certification
of the Chief Executive Officer of Global Axcess Corp. pursuant to Section
906 of the Sarbanes-Oxley Act of 2002.*
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32.2
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Certification
of the Chief Financial Officer of Global Axcess Corp. pursuant to Section
906 of the Sarbanes-Oxley Act of
2002.*
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* Filed
herewith.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as of January 27,
2011, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
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GLOBAL
AXCESS CORP.
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By:
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/s/ George A. McQuain
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George
A. McQuain
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President
and Chief Executive Officer
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(principal
executive officer)
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By:
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/s/ Michael J. Loiacono
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Michael
J. Loiacono
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Chief
Financial Officer and Chief Accounting Officer
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(principal
financial officer and principal accounting
officer)
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