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As filed with the Securities and Exchange Commission on August 5, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
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)
200 Plant Avenue
Wayne, Pennsylvania 19087
(Address of principal executive offices and zip code)
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ROBERT J. FLAHERTY CONSULTING AGREEMENT
(full title of the plan)
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George R. Jensen, Jr.
President and Chief Executive Officer
USA Technologies, Inc.
200 Plant Avenue
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 17,000 $ .365 $6,205 $ 1.88
(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
July 28, 1997. The registration fee represents 1/33 of 1% of the proposed
maximum aggregate offering price.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed in (a) through (g) below are 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.
(a) The Registrant's annual report on Form 10-KSB for the fiscal year
ended June 30, 1996; and
(b) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended September 30, 1996; and
(c) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended December 31, 1996; and
(d) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended March 31, 1997; and
(e) The Registrant's current report on Form 8-K filed on December 19,
1996.
(f) The Registrant's current report on Form 8-K filed on May 22, 1997.
(g) The Registrant's current report on Form 8-K filed on July 8, 1997.
Item 4. Description of Securities
The Company is proceeding with the registration of 17,000 shares
pursuant to an agreement with Robert J. Flaherty dated June 15, 1997. These
shares are being issued for services rendered beginning June 15, 1997 through
the completion of such services.
The Company is authorized to issue up to 55,000,000 shares of Common
Stock, no par value ("Common Stock"), and 1,200,000 shares of undesignated
Preferred Stock, all of which has been designated Series A Convertible Preferred
Stock, no par value ("Preferred Stock").
As of June 30, 1997, there were 29,969,724 shares of Common Stock
issued and outstanding.
The foregoing amount does not reflect shares of Common Stock
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issuable by the Company upon the conversion of the Preferred Stock or any
accrued and unpaid dividends thereon. As of June 30, 1997, 861,205 shares of
Preferred Stock were issued and outstanding and are convertible into 10,334,460
shares of Common Stock through December 31, 1997 and 8,612,050 shares of Common
Stock thereafter. As of June 30, 1997, there were $2,839,000 of accrued and
unpaid dividends on the Preferred Stock which are convertible at the rate of
$.83 per share of Common Stock through December 31, 1997 and at the rate of
$1.00 per share of Common Stock thereafter. As of June 30, 1997, a total of
38,255 shares of Preferred Stock have been converted into 414,650 shares of
Common Stock and accrued and unpaid dividends thereon have been converted into
174,574 shares of Common Stock.
The foregoing amount also does not include the Common Stock issuable
upon the exercise of the remaining 1,414,000 1995 Warrants, 1,998,000 1996
Warrants, 374,000 1996-B Warrants, 1,600,000 1997 Warrants or the 2,000,000
Warrants held by affiliates and/or consultants to GEM Advisors, Inc., issued and
outstanding as of June 30, 1997.
The foregoing amount also does not include the Common Stock issuable
upon the exercise of the outstanding stock options or purchase rights to acquire
Common Stock. As of June 30, 1997, the Company has issued to its Directors,
executive officers, consultants, and employees options to acquire up to 100,000
shares of Common Stock at $.50 per share, options to acquire up to 1,236,000
shares of Common Stock at $.45 per share, options to acquire up to 2,565,000
shares of Common Stock at $.25 per share, and options to acquire up to 70,000
shares of Common Stock at $.05 per share. The Company has also issued purchase
rights to acquire up to 157,300 shares of Common Stock at $1.00 per share. All
options to purchase Common Stock were granted at prices at or above the market
value on the date of the grant.
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
Lurio & Associates, counsel to the Company, is the beneficial owner of
an aggregate of 2,500,000 shares of Common Stock which were issued to the firm
as Escrow Agent in connection with the issuance of an aggregate of $500,000 of
Debentures in June 1997. The shares of Common Stock are being issued and held in
escrow in order to ensure that they are available to the holders of the
Debentures upon any conversion of the Debentures.
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:
5 Opinion of Lurio & Associates
23.1 Consent of Lurio & Associates (included in the
opinion filed as Exhibit 5 hereto)
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23.2 Consent of Ernst & Young LLP, Independent Auditors
28 Consulting Agreement between Robert J. Flaherty and USA
Technologies, Inc. dated June 15, 1997
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:
(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 1933, 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
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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 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
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Wayne, Pennsylvania, on August 5, 1997.
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 duly signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ George R. Jensen, Jr. Chairman of the Board, August 5, 1997
- ------------------------- President and Chief
George R. Jensen, Jr. Executive Officer,
(Principal Executive Officer)
/s/ Stephen P. Herbert Vice President, August 5, 1997
- ------------------------- Director
Stephen P. Herbert
Vice President, August , 1997
- ------------------------- Director
Keith L. Sterling
/s/ Leland P. Maxwell Vice President, Chief August 5, 1997
- ------------------------- Financial Officer,
Leland P. Maxwell (Principal Accounting Officer)
/s/ William W. Sellers Director August 5, 1997
- -------------------------
William W. Sellers
/s/ Peter G. Kapourelos Director August 5, 1997
- ------------------------
Peter G. Kapourelos
Director August , 1997
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Henry B. duPont Smith
Director August , 1997
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William L. Van Alen, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
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 Consulting Agreement between
Robert Flaherty and USA
Technologies dated June 15, 1997
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EXHIBIT 5
August 5, 1997
USA Technologies, Inc.
200 Plant Avenue
Wayne, PA 19087
Attn: Mr. George R. Jensen, Jr., President
Re: USA Technologies, Inc. -
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
17,000 shares of Common Stock of the Company issuable to Robert J. Flaherty
pursuant to a Consulting Agreement between the Company and Robert J. Flaherty
dated June 15, 1997 (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.
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
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USA Technologies, Inc.
August 5, 1997
Page 2
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
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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 17,000 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.
Philadelphia, Pennsylvania
August 5, 1997
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EXHIBIT 28
June 15, 1997
Mr. Robert J. Flaherty
c/o Equities Magazine, Inc.
160 Madison Avenue, 3rd Floor
New York, New York 10016
Dear Robert:
This is to acknowledge and confirm the following terms of our
Consulting Agreement. We are very pleased to be a client of yours.
(1) You are actively involved in providing financial relations,
consulting and advisory services to clients.
(2) The Company hereby engages you and you hereby agree to render
financial public relations, consulting and advisory services to the Company. It
is understood and agreed that none of your services shall be in connection with
the offer or sale of any securities of the Company in a capital raising
transaction.
(3) Compensation
(a) The Company shall issue to you in consideration for providing
the financial, public relations, consulting and advisory services set forth
herein a total of 17,000 shares of fully vested, nonassessable, free trading
Common Stock of the Company. Upon the effective date of the registration
statement described in Paragraph 3(b) below, the Company shall issue such stock
to you. This issuance of the Company's stock shall be the only consideration
that you are entitled to under this Consulting Agreement.
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(b) Promptly after the date of this Consulting Agreement, the
Company will cause a registration statement on Form S-8 to be filed with the
Securities and Exchange Commission for the purpose of registering 17,000 shares
of Common Stock of the Company issuable to you pursuant to Paragraph 3(a) above.
(4) This Consulting Agreement shall be on a project basis and have no
set term. Any renewal or extension of this Consulting Agreement shall be upon a
new written agreement signed by each of the parties.
(5) You will not directly or indirectly disclose to any other person,
firm or corporation, nor use for your own benefit during or after the term of
this Consulting Agreement, any trade secrets or other information designated as
confidential by the Company which is acquired by you in the course of performing
services hereunder. Trade secrets can include, but are not limited to, products
or services under development, production methods and processes, sources of
supply, customer lists, marketing plans, information concerning the filing or
pendency of patent applications and information concerning the issuance of any
securities of the Company.
(6) In performing your duties as set forth in this Consulting
Agreement, you shall abide by all applicable laws, including federal and state
securities laws, and shall make all disclosures required by such laws, including
disclosures required as a result of you entering into this Consulting Agreement
with the Company.
(7) You hereby represent that you have obtained all licenses or
registrations required in order to perform the services set forth in the
Consulting Agreement. You also hereby represent that you are not prohibited from
entering into this Consulting Agreement or from performing your obligations
hereunder by any law, regulation, contract, decree, order or agreement.
(8) You and the Company hereby acknowledge that you are an independent
contractor. You shall not hold yourself out as, nor shall you take any action
from which others might infer, that you are a partner, agent or joint venturer
of the Company.
(9) This Consulting Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and supersedes and cancels
any prior communications, understandings and agreements between the parties.
This Consulting Agreement cannot be modified or changed, nor can any of its
provisions be waived, except by written agreement signed by all parties.
(10) This Consulting Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania. Any dispute arising out of this Consulting
Agreement shall be adjudicated in the courts of the Commonwealth of Pennsylvania
or in the federal courts located within the Commonwealth of Pennsylvania.
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Robert, please indicate your acceptance of the terms of this Consulting
Agreement by signing and dating below where indicated and returning it to me.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
-------------------------------------
George R. Jensen, Jr.
President and Chief Executive Officer
ACCEPTED:
/s/ Robert J. Flaherty
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Robert J. Flaherty
