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As filed with the Securities and Exchange Commission on March 22, 1999
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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MASON SEXTON 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 180,000 $.16 $28,800 $8.01
(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
March 15, 1999. The registration fee represents .000278 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 (d) 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 Form 10-QSB Quarterly Report for the quarterly
period ended December 31, 1998; and
(d) 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 180,000 shares of
Common Stock pursuant to an agreement with Mason Sexton dated March 10, 1999.
These shares are being issued for services to be rendered between March 10, 1999
and September 10, 1999.
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 December 31, 1998, there were 40,308,171 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 Series A Preferred Stock or Series B
Preferred Stock or any accrued and unpaid dividends thereon. As of December 31,
1998, 667,161 shares of Series A Preferred Stock were issued and outstanding and
are convertible into 6,671,610 shares of Common Stock. As of December 31, 1998,
a total of 442,084 shares of Series A 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 December 31, 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 December 31, 1998, there was a total of 152,800 Common Stock
Purchase Rights outstanding at a price of $1.00 per share. As of December 31,
1998, there was a total of 3,751,000 options outstanding to purchase Common
Stock at exercise prices ranging from $.05 to $.50 per share, of which 3,601,000
were vested. 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.
28 Consulting Agreement between Mason Sexton and USA Technologies, Inc.
dated March 10, 1999
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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 March 22, 1999.
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, March 22, 1999
- --------------------------- President and Chief
George R. Jensen, Jr. Executive Officer,
(Principal Executive Officer)
/s/ Stephen P. Herbert Executive Vice President--Chief March 22, 1999
- --------------------------- Operating Officer, Director
Stephen P. Herbert
/s/ Leland P. Maxwell Senior Vice President, Chief March 22, 1999
- --------------------------- Financial Officer, Treasurer
Leland P. Maxwell (Principal Accounting Officer)
/s/ William W. Sellers
- --------------------------- Director March 22, 1999
William W. Sellers
/s/ Peter G. Kapourelos Director March 22, 1999
- ---------------------------
Peter G. Kapourelos
/s/ Henry B. duPont Smith Director March 22, 1999
- ---------------------------
Henry B. duPont Smith
/s/ William L. Van Alen, Jr. Director March 22, 1999
- ---------------------------
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, 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
Mason Sexton and USA Technologies
dated March 10, 1999
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Exhibit 5
March 22, 1999
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
180,000 shares of Common Stock of the Company issuable to Mason Sexton pursuant
to a Consulting Agreement between the Company and Mason Sexton dated March 10,
1999 (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.
March 22, 1999
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 180,000 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
March 22, 1999
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Exhibit 28
USA Technologies, Inc.
200 Plant Avenue
Wayne, Pennsylvania 19087
March 10, 1999
Mr. Mason Sexton
430 Park Avenue
New York, New York 10022
Dear Mr. Sexton:
This is to acknowledge and confirm that you have been retained as a
consultant by the Company pursuant to the terms and conditions set forth herein.
(1) The Company hereby engages you and you hereby agree to render such
consulting and advisory services to the Company as shall be requested from time
to time by the President of the Company, including advising the Company on
business strategy, compensation policies, business development, and product
development. It is understood and agreed that none of your services to be
rendered hereunder shall be in connection with the offer or sale of any
securities of the Company in a capital raising transaction or directly or
indirectly promoting or maintaining a market for the Company's securities.
(2) The Company shall issue to you in consideration for providing the
consulting and advisory services set forth herein a total of 180,000 shares of
fully paid and nonassessable Common Stock of the Company. Upon the effective
date of the registration statement described below, the Company shall issue such
stock to you. The issuance to you of such Common Stock shall be the only
consideration that you are entitled to under this Consulting Agreement.
Promptly after the signing 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 the 180,000 shares of
Common Stock of the Company to be issued to you.
(3) This Consulting Agreement shall be for a term of six months
commencing March 10, 1999 and terminating September 10, 1999. Any renewal or
extension of this Consulting Agreement shall be upon a new written agreement
signed by each of the parties.
(4) 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.
(5) You and the Company hereby acknowledge that you are an independent
contractor. In connection with your duties hereunder, 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.
(6) 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.
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/ Mason S. Sexton
- -------------------------
Mason S. Sexton
