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As filed with the Securities and Exchange Commission on November 18, 1998
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)
200 Plant Avenue
Wayne, Pennsylvania 19087
(Address of principal executive offices and zip code)
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RONALD TRAHAN 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, P.C.
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 50,000 $.13 $6,500 $1.89
(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
November 16, 1998. The registration fee represents 1/35 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 (c) 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, 1998; and
(b) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended September 30, 1998; and
(c) The Registrant's current report on Form 8-K filed on September 16,
1998.
Item 4. Description of Securities
The Company is proceeding with the registration of 50,000 shares
pursuant to an agreement with Ronald Trahan dated November 16, 1998. These
shares are being issued for services to be rendered between October 1, 1998 and
December 31, 1998.
The Company is authorized to issue up to 62,000,000 shares of Common
Stock, no par value ("Common Stock"), and 1,200,000 shares of undesignated
Preferred Stock, 847,961 of which has been designated Series A Convertible
Preferred Stock, no par value ("Series A Preferred Stock") and 200,000 shares of
which has been designated Series B Equity Participating Preferred Stock, no par
value, ("Series B Preferred Stock").
As of September 30, 1998, there were 40,229,122 shares of Common Stock
issued and outstanding.
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The foregoing amount does not reflect shares of Common Stock issuable
by the Company upon the conversion of the Preferred Stock or any accrued and
unpaid dividends thereon. As of September 30, 1998, 669,066 shares of Preferred
Stock were issued and outstanding and are convertible into 6,690,660 shares of
Common Stock. As of September 30, 1998, a total of 442,084 shares of Preferred
Stock have been converted into 5,187,775 shares of Common Stock and $1,679,727
accrued and unpaid dividends thereon have been converted into 1,981,511 shares
of Common Stock.
The foregoing amount also does not include the Common Stock issuable
upon the exercise of the remaining 673,000 1995 Warrants, 868,000 1996 Warrants,
40,000 1996-B Warrants, 15,000 1997 Warrants, 40,000 1998-A Warrants, 1,390,000
1998-B Warrants or the 1,100,000 Warrants held by affiliates and/or consultants
to GEM Advisors, Inc., issued and outstanding as of September 30, 1998.
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 September 30, 1998, the Company has issued to its Directors,
executive officers, consultants, and employees options to acquire up to 150,000
shares of Common Stock at $.50 per share, options to acquire up to 840,000
shares of Common Stock at $.45 per share, options to acquire up to 1,315,000
shares of Common Stock at $.25 per share, options to acquire up to 75,000
shares of Common Stock at $.20 per share, options to acquire up to 1,321,000
shares of Common Stock at $.15 per share, options to acquire up to 450,000
shares of Common Stock at $.10 per share, and options to acquire up to 50,000
shares of Common Stock at $.05 per share. The Company has also issued purchase
rights to acquire up to 152,800 shares of Common Stock at $1.00 per share. Many
of the options and purchase rights granted were issued at or above fair market
value on the date of grant, and those that were issued below fair market value
have resulted in an appropriate charge against earnings during the period the
options were issued.
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:
5 Opinion of Lurio & Associates, P.C.
23.1 Consent of Lurio & Associates, P.C. (included in the opinion filed as
Exhibit 5 hereto.)
23.2 Consent of Ernst & Young LLP, Independent Auditors.
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<PAGE>
28 Consulting Agreement between Ronald Trahan and USA Technologies, Inc.
dated November 16, 1998
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 in the aggregate, 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 November 18, 1998.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
-------------------------------------
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, November 18, 1998
- ------------------------ President and Chief
George R. Jensen, Jr. Executive Officer,
(Principal Executive Officer)
/s/ Stephen P. Herbert Executive Vice President-- November 18, 1998
- ------------------------ Chief Operating Officer,
Stephen P. Herbert Director
/s/ Haven Brock Kolls, Jr. Senior Vice President-- November 18, 1998
- ------------------------ Research and Development
Haven Brock Kolls, Jr.
/s/ Leland P. Maxwell Senior Vice President, Chief November 18, 1998
- ------------------------ Financial Officer, Treasurer
Leland P. Maxwell (Principal Accounting Officer)
/s/ William W. Sellers
- ------------------------ Director November 18, 1998
William W. Sellers
/s/ Peter G. Kapourelos Director November 18, 1998
- ------------------------
Peter G. Kapourelos
Director November __, 1998
- ------------------------
Henry B. duPont Smith
Director November __, 1998
- ------------------------
William L. Van Alen, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
5 Opinion of Lurio & Associates, P.C.
23.1 Consent of Lurio & Associates, P.C.
(included in the opinion filed
as Exhibit 5 hereto)
23.2 Consent of Independent Auditors
28 Consulting Agreement between
Ronald Trahan and USA Technologies
dated November 16, 1998
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Exhibit 5
November 18, 1998
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
50,000 shares of Common Stock of the Company issuable to Ronald Trahan pursuant
to a Consulting Agreement between the Company and Ronald Trahan dated
November 16, 1998 (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.
November 18, 1998
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, P.C.
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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 50,000 shares of Common
Stock of USA Technologies, Inc. of our report dated August 17, 1998, with
respect to the consolidated financial statements of USA Technologies, Inc.
included in its Annual Report (Form 10-KSB) for the year ended June 30, 1998.
Philadelphia, Pennsylvania
November 18, 1998
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Exhibit 28
November 16, 1998
Mr. Ronald Trahan
Ronald Trahan Associates, Inc.
2345 Washington Street
Newton Lower Falls, Massachusetts
Dear Ron:
This is to acknowledge and confirm the following terms of our
Consulting Agreement. We are very pleased to be a client of yours again.
(1) You have been actively involved in providing public relations
services for the Company.
(2) It is understood and agreed that none of your services have been in
connection with the offer or sale of any securities of the Company in a capital
raising transactions.
(3) Compensation
(a) The Company shall issue to you in consideration for
providing public relations services from October 1, 1998 through December 31,
1998, a total of 50,000 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.
(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 50,000 shares
of Common Stock of the Company issuable to you pursuant to Paragraph 3(a) above.
<PAGE>
(4) In connection with the laws of the Commonwealth of Massachusetts,
you hereby represent that you are a resident of the Commonwealth of
Massachusetts and that you are a current security holder of the Company. In
addition, this will confirm that no entity or individual will receive any
commission or remuneration in connection with this transaction.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
<PAGE>
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/ Ronald Trahan
- -------------------------
Ronald Trahan
