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As filed with the Securities and Exchange Commission on October 4, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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USA TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Pennsylvania 7359 23-2679963
(State or other (Primary Standard Industrial (I.R.S. employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
1265 Drummers Lane, Suite 306
Wayne, Pennsylvania 19087
(Address of principal executive offices and zip code)
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AMENDMENT TO DIVERSIFIED CORPORATE
CONSULTING GROUP, LLC CONSULTING AGREEMENT
(full title of the plan)
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George R. Jensen, Jr.
President and Chief Executive Officer
USA Technologies, Inc.
1265 Drummers Lane, Suite 306
Wayne, Pennsylvania 19087
(610) 989-0340
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Douglas M. Lurio, Esquire
Lurio & Associates
1760 Market Street, Suite 1300
Philadelphia, PA 19103
(215) 665-9300
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Offered Registered Per share (1) Offering Price (1) Fee(1)
- ------- ---------- ------------- ------------------ ------
Common Stock 250,000 $ .40 $100,000 $ 100
(1) Estimated solely for purposes of calculating the registration fee.
Pursuant to Rule 457(h), the offering price is based upon the average
of the bid and asked price for the Common Stock on the OTC Electronic
Bulletin Board on September 26, 1996. The registration fee represents
the minimum prescribed fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996 is incorporated by reference in the Registration Statement and
made a part hereof. All documents subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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 by reference in this Registration Statement
and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities
The Company is authorized to issue up to 45,000,000 shares of Common
Stock, no par value. As of September 26, 1996, there were 23,023,976 shares of
issued and outstanding Common Stock. The foregoing amount does not reflect
shares of Common Stock issuable by the Company upon the conversion of the Series
A Preferred Stock of the Company (796,025 of which are outstanding on September
26, 1996), or any accrued and unpaid dividends thereon, or upon the exercise of
outstanding stock options or purchase rights to acquire Common Stock. The
foregoing also does not include the Common Stock issuable upon the exercise of
the remaining 1,414,000 1995 Common Stock Purchase Warrants or the 5,200,000
1996 Common Stock Purchase Warrants which are outstanding on September 26, 1996.
The holder of each share of Common Stock is entitled to one vote on all
matters submitted to a vote of the shareholders of the Company, including the
election of directors. There is no cumulative voting for directors.
The holders of Common Stock are entitled to receive such dividends as
the Board of Directors may from time to time declare out of funds legally
available for payment of dividends. No dividends may be paid on the Common Stock
until all accumulated and unpaid cumulative dividends on the Series A Preferred
Stock have been paid. Upon any liquidation, dissolution or winding up of the
Company, holders of shares of Common Stock are entitled to receive pro rata all
assets of the Company available for distribution, subject to the liquidation
preference of the Series A Preferred Stock of $10.00 per share and any unpaid
and accumulated dividends on the Series A Preferred Stock. Shareholders of the
Company do not have any preemptive rights to subscribe for or purchase shares,
obligations, warrants, or other securities of the Company.
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Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 1746 of the Pennsylvania Business Corporation Law of 1988, as
amended ("BCL"), authorizes a Pennsylvania corporation to indemnify its
officers, directors, employees and agents under certain circumstances against
expenses and liabilities incurred in legal proceedings involving such persons
because of their holding or having held such positions with the Company and to
purchase and maintain insurance of such indemnification. The Company's By-laws
substantively provide that the Company will indemnify its officers, directors,
employees and agents to the fullest extent provided by Section 1746 of the BCL.
Section 1713 of the BCL permits a Pennsylvania corporation, by so
providing in its By-laws, to eliminate the personal liability of a director for
monetary damages for any action taken unless the director has breached or failed
to perform the duties of his office and the breach or failure constitutes
self-dealing, willful misconduct or recklessness. In addition, no such
limitation of liability is available with respect to the responsibility or
liability of a director pursuant to any criminal statute or for the payment of
taxes pursuant to Federal, state or local law. The Company's By-laws eliminate
the personal liability of the directors to the fullest extent permitted by
Section 1713 of the BCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following Exhibits are filed as part of this Registration
Statement:
4.1 Articles of Incorporation of Company filed on January 16,
1992 (Incorporated by reference to Exhibit 3.1 Form SB-2
Registration Statement No. 33-70992)
4.1.1 First Amendment to Articles of Incorporation of the Company
filed on July 17, 1992 (Incorporated by reference to Exhibit
3.1.1 to Form SB-2 Registration Statement No.
33-70992)
4.1.2 Second Amendment to Articles of Incorporation of the
Company filed on July 27, 1992 (Incorporated by reference
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to Exhibit 3.1.2 to Form SB-2 Registration Statement No.
33-70992)
4.1.3 Third Amendment to Articles of Incorporation of the
Company filed on October 5, 1992 (Incorporated by
reference to Exhibit 3.1.3 to Form SB-2 Registration
Statement No. 33-70992)
4.1.4 Fourth Amendment to Articles of Incorporation of the
Company filed on October 18, 1993 (Incorporated by
reference to Exhibit 3.1.4 to Form SB-2 Registration
Statement No. 33-70992)
4.1.5 Fifth Amendment to Articles of Incorporation of the
Company filed on June 7, 1995 (Incorporated by reference
to Exhibit 3.1 to Form 5.3 Registration Statement No.
33-98808, filed October 31, 1995)
4.1.6 Sixth Amendment to Articles of Incorporation of the Company
filed on May 1, 1996 (Incorporated by reference to Exhibit
3.1.6 to Form SB-2 Registration Statement No.
333-09465)
4.2 By-Laws of the Company (Incorporated by reference to
Exhibit 3.2 to Form SB-2 Registration Statement No.
33-70992)
5 Opinion of Lurio & Associates
23.1 Consent of Lurio & Associates (included in the
opinion filed as Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP, Independent
Auditors
28.1 Consulting Agreement between Diversified Corporate
Consulting Group, L.C. and USA Technologies, Inc. dated
February 7, 1996 (Incorporated by reference to Exhibit
28.2 to Form S-8 Registration Statement No. 33-2614)
28.2 Amendment to Consulting Agreement between Diversified
Corporate Consulting Group, LLC and USA Technologies,
Inc. dated August 1, 1996
Item 9. Undertakings
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:
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(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or most recent
post-effective amendment thereof) which, individually or together, represent a
fundamental change in the information in the 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.
Except that, subparagraph (i) and (ii) of this paragraph do not apply
provided that the information required in a post-effective amendment is
incorporated by reference from periodic reports filed by the issuer under the
Securities Exchange Act of 1934.
(2) That for the purpose of determining any liability under the
Securities Act of 1993, each such post-effective amendment shall be treated as a
new registration statement relating to the securities offered herein, and shall
treat the offering of such securities at that time as 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 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 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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. 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
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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.
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SIGNATURES
In accordance with 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 Wayne, Commonwealth of Pennsylvania, on September 30,
1996.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
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George R. Jensen, Jr.,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ George R. Jensen, Jr. Chairman of the Board, September 30, 1996
- ---------------------------- President and Chief Executive
George R. Jensen, Jr. Officer (Principal and
Chief Executive Officer)
/s/ Edward J. Sullivan Vice President and Chief September 30, 1996
- ---------------------------- Financial Officer (Principal
Edward J. Sullivan Accounting Officer)
/s/ Stephen P. Herbert Vice President, Director September 30, 1996
- ----------------------------
Stephen P. Herbert
/s/ Keith L. Sterling Vice President, September 30, 1996
- ---------------------------- Director
Keith L. Sterling
/s/ William W. Sellers Director September 30, 1996
- ----------------------------
William W. Sellers
/s/ Peter G. Kapourelos Director September 30, 1996
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Peter G. Kapourelos
Director September __, 1996
- ----------------------------
Henry B. duPont Smith
/s/ William L. Van Alen, Jr. Director September 30, 1996
- ----------------------------
William L. Van Alen, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description Page No.
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5 Opinion of Lurio & Associates
23.1 Consent of Lurio & Associates
(included in the opinion filed
as Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP,
Independent Auditors
28.2 Amendment to Consulting Agreement between
Diversified Corporate Consulting Group, LLC
and USA Technologies, Inc. dated August 1, 1996
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Exhibit 5
October 4, 1996
USA Technologies, Inc.
Three Glenhardie Corporate Center
Suite 306
1265 Drummers Lane
Wayne, PA 19087
Attn: Mr. George R. Jensen, Jr., President
Re: USA Technologies, Inc. - Amendment to
Diversified Consulting Group, LLC
Registration Statement on Form S-8
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Dear Mr. Jensen:
We have acted as counsel to USA Technologies, Inc., a
Pennsylvania corporation (the "Company"), in connection with a Registration
Statement on Form S-8, filed with the Securities and Exchange Commission on the
date hereof (the "Registration Statement"). The Registration Statement covers
250,000 shares of Common Stock of the Company issuable to Diversified Corporate
Consulting Group, LLC ("Diversified") pursuant to an Amendment to Consulting
Agreement between the Company and Diversified dated August 1, 1996 (the
"Consulting Agreement").
In rendering this opinion, we have examined (i) the Articles
of Incorporation, as amended, and By-laws of the Company; (ii) the resolutions
of the Board of Directors evidencing the corporate proceedings taken by the
Company to authorize the issuance of the Common Stock pursuant to the
Registration Statement; (iii) the Registration Statement (including all exhibits
thereto); (iv) The Consulting Agreement; and (v) such other documents as we have
deemed appropriate or necessary as a basis for the opinion hereinafter
expressed.
In rendering the opinion expressed below, we assumed the
authenticity of all documents and records examined, the conformity with the
original documents of all documents submitted to us as copies and the
genuineness of all signatures.
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USA Technologies, Inc.
October 4, 1996
Page 2
Based upon and subject to the foregoing, and such legal
considerations as we deem relevant, we are of the opinion that, when sold as
contemplated by the Registration Statement and the Consulting Agreement, the
Common Stock will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Sincerely,
LURIO & ASSOCIATES
/s/ LURIO & ASSOCIATES
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the registration of 250,000 shares of common
stock of USA Technologies, Inc. of our report dated August 9, 1996, except for
Note 12 as to which the date is September 10, 1996, with respect to the
financial statements of USA Technologies, Inc. included in its Annual Report
(Form 10-KSB) for the year ended June 30, 1996, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
Philadelphia, Pennsylvania
October 4, 1996
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Exhibit 28.2
Administrative Offices
Diversified Corporate Consulting Group, LLC
A Delaware Limited Liability Company
Business Consultants & Advisors
<TABLE>
<S> <C> <C>
William A. Calvo, III, LLM HQ, Registered & Associated Offices: Branch Offices & General Counsel:
Managing Member ------------------------------------ ---------------------------------
Gary Langan Goodenow 53 Wall Street 237 Main Street
General Counsel Fifth Floor Tannersville, New York 12485
New York, New York 10005 Telephone (518) 589-9190
Carousel Consultants, Inc. Telephone (212) 858-7734 Fax Number (518) 589-0341
Financial Public Relations Counsel Facsimile Transmission (212) 858-7750
11355 Southeast 54th Avenue
Honig, Zevallos & Associates c/o Harvard Business Services, Inc. Belleview, Florida 34420
Marketing & Public Relations Counsel 25 Greystone Manor Telephone (352) 245-4126 (352) 368-6525
Lewes, Delaware 19958 Mobile Number (352) 812-0347
KTL Financial Services, Inc. Telephone (800) 345-2677 Fax Number (357) 245-5913
Financial Counsel Fax Number (302) 645-7400 E-Mail [email protected]
10500 S.W. 134th Street 1515 Pear Tree Circle
Miami, Florida 33176 Brentwood, Tennessee 37027
Telephone (305) 251-4427 Telephone (615) 370-3239
Fax Number (305) 254-4347 Fax Number (615) 371-1899
133 "F" Avenue 341 Northeast 104th Street
Coronado, California 92118 Miami Shores, Florida 33138
Telephone (619) 435-2545 Telepbone (305) 757-0570
Fax Number (619) 435-2014 Fax Number (305) 757-4475
Residence: 757-5235
</TABLE>
Please Respond to Belleview, Florida Address
August 1, 1996
Mr. George R. Jensen
Chairman, President & Chief Executive Officer
USA Technologies, Inc.
1265 Drummers Lane, Suite 306
Wayne, Pennsylvania 19087
By Facsimile Transmission to (610) 989-0344
Re: Professional Engagement
Dear Mr. Jensen:
Please sign and re-fax this letter, confirming that our engagement
agreement has been extended for a period of 90 days. You will promptly issue
Diversified Corporate Consulting Group, LLC, 250,000 additional shares of USA
Technologies, Inc., common stock, registered on Securities and Exchange
Commission Form S-8, as our total compensation for such extension.
The term of our respective obligations during the extension period
shall be as described
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Investment Banking Relations * Stockholder Relations
* Strategic Planning * Mergers & Acquisitions
Contract Negotiations * Recruitment & Supervision of Professionals
* Regulatory Compliance
Public & Private Equity or Debt Financing
* Equipment Leasing * Public Relations & Marketing
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August 1, 1996
Page 2
in our original engagement letter, except for such matters as either expressly
or by necessary implication, are modified hereby.
Very truly yours,
Diversified Corporate Consulting Group, L.C.
/s/ William A. Calvo, III
-------------------------
William A. Calvo, III
Managing Member
The foregoing is hereby accepted.
/s/ Mr. George R. Jensen
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Mr. George R. Jensen
Chairman, President & Chief Executive Officer
USA Technologies, Inc.
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Diversified Corporate Consulting Group, LLC
