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As filed with the Securities and Exchange Commission on January 18, 2000
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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FIELDMAN HAY & ULLMAN LLP AGREEMENT
(full title of the plan)
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George R. Jensen, Jr.
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.
One Commerce Square
2005 Market Street, Suite 2340
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 150,000 $2.88 $432,000 $118.37
(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
January 11, 2000. The registration fee represents .000274 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, 1999;
(b) The Registrant's current report on Form 8-K filed on November 2,
1999;
(c) The Registrant's current report on Form 8-K filed on December 2,
1999; and
(d) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended September 30, 1999.
Recent Developments
During the second quarter of fiscal year 2000, the Company continued to
incur operating losses. The Company anticipates incurring operating losses
through at least the end of fiscal year 2000.
Item 4. Description of Securities
The Company is proceeding with the registration of 150,000 shares of
Common Stock pursuant to an agreement with Fieldman Hay & Ullman LLP dated
January 6, 2000. These shares are being issued for services rendered or to be
rendered to the Company by Fieldman Hay & Ullman LLP.
The Company is authorized to issue up to 62,000,000 shares of Common
Stock, no par value ("Common Stock"), and 1,800,000 shares of undesignated
Preferred Stock, 900,000 of which has been designated Series A Convertible
Preferred Stock, no par value ("Series A Preferred Stock") and 350,000 shares of
which has been designated Series B Equity Participating Preferred Stock, no par
value ("Series B Preferred Stock").
As of September 30, 1999, there were 6,629,934 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 any
accrued and unpaid dividends thereon. As of September 30, 1999, 625,077 shares
of Series A Preferred Stock were issued and outstanding and are convertible into
625,077 shares of Common Stock. As of September 30, 1999, there were $3,704,254
of accrued and unpaid dividends on the Series A Preferred Stock which are
convertible into 370,425 shares of Common Stock. As of September 30, 1999, a
total of 486,073 shares of Series A Preferred Stock have been converted into
562,536 shares of Common Stock and accrued and unpaid dividends thereon have
been converted into 217,344 shares of Common Stock. As of September 30, 1999
there were no shares of Series B Preferred Stock issued and outstanding.
The foregoing amount also does not include the Common Stock issuable
upon the exercise of the remaining 67,300 1995 Warrants, 86,800 1996 Warrants,
4,000 1996-B Warrants, 1,500 1997 Warrants, 4,000 1998-A Warrants, 5,000 1998-B
Warrants, 807,000 1999-A Warrants, or the 110,000 Warrants held by affiliates
and/or consultants to GEM Advisors, Inc., issued and outstanding as of September
30, 1999.
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, 1999, there was a total of 11,740 Common Stock
Purchase Rights outstanding at a price of $10.00 per share. As of September 30,
1999, there was a total of 947,100 options outstanding to purchase Common Stock
at exercise prices ranging from $.50 to $5.00 per share, of which 738,767 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 foregoing amount also does not include 356 units sold by the
Company pursuant to a private placement offering in October, November and
December 1999. Each $10,000 unit consisted of 10,000 shares of Common Stock and
10,000 1999-B Warrants. Each Warrant entitles the holder to purchase one share
of restricted Common Stock for $2.00 at any time on or before March 31, 2000.
Pursuant to the private placement offering, the Company has issued 3,560,000
shares of Common Stock and 3,560,000 1999-B Warrants.
The foregoing also does not include 66,263 shares of Common Stock which
were issued to employees of the Company in October 1999.
The foregoing also does not include options to purchase up to 90,000
shares of Common Stock which were issued to officers of the Company in November
1999.
The foregoing does not include 10,000 shares of Common Stock issued to
a consultant in January 2000.
All of the numbers of issued and outstanding shares, warrants, and
options as well as the exercise prices thereof contained herein have been
adjusted for the 1-for-10 reverse stock split of the Common Stock which occurred
on June 7, 1999.
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
Douglas M. Lurio, Esquire, President of Lurio & Associates, P.C,
general counsel to the Company, serves as a Director of the Company. Mr. Lurio
is the beneficial owner of 71,533 shares of Common Stock.
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 Agreement between Fieldman Hay & Ullman LLP and USA Technologies, Inc.
dated November 23, 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 January 18, 2000.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
-------------------------------------
George R. Jensen, Jr.,
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 January 18, 2000
- --------------------------- and Chief Executive Officer,
George R. Jensen, Jr. (Principal Executive Officer)
/s/ Stephen P. Herbert President, Chief Operating January 18, 2000
- --------------------------- Officer, Director
Stephen P. Herbert
/s/ Leland P. Maxwell Senior Vice President, Chief January 18, 2000
- --------------------------- Financial Officer, Treasurer
Leland P. Maxwell (Principal Accounting Officer)
/s/ William W. Sellers
- --------------------------- Director January 18, 2000
William W. Sellers
/s/ Peter G. Kapourelos Director January 18, 2000
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Peter G. Kapourelos
Director January __, 2000
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Henry B. duPont Smith
Director January __, 2000
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William L. Van Alen, Jr.
Director January __, 2000
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Steven Katz
/s/ Douglas M. Lurio Director January 18, 2000
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Douglas M. Lurio
Director January __, 2000
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Edwin R. Boynton
</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 Agreement between Fieldman Hay &
Ullman LLP and USA Technologies, Inc.
dated November 23, 1999
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Exhibit 5
January 18, 2000
USA Technologies, Inc.
200 Plant Avenue
Wayne, PA 19087
Attn: Mr. George R. Jensen, Jr., Chief Executive Officer
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
150,000 shares of Common Stock of the Company issuable pursuant to the Agreement
between the Company and Fieldman Hay & Ullman dated November 23, 1999 (the
"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 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
<PAGE>
USA Technologies, Inc.
January 18, 2000
Page 2
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.
<PAGE>
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 150,000 shares of Common
Stock of USA Technologies, Inc. of our report dated September 14, 1999, 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, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
January 18, 2000
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USA Technologies, Inc.
200 Plant Avenue
Wayne, Pennsylvania 19087
November 23, 1999
Fieldman Hay & Ullman, LLP
350 Fifth Avenue, 47th Floor
New York, New York 10118
Gentlemen:
This is to acknowledge and confirm our agreement regarding the issuance
to Anthony Ullman, John Hay and Henry Fieldman, of an aggregate of 150,000
shares of Common Stock. The shares will be issued in payment on account of the
legal fees due, or to become due, to Fieldman Hay & Ullman, LLP (the "Firm") by
the Company, all pursuant to the terms and conditions set forth herein.
(1) This will confirm that the Firm has been retained to represent the
Company in connection with the current litigation with Mail Boxes Etc. USA, Inc.
("MBE Litigation"). It is understood and agreed that none of the Firm's services
to be rendered on behalf of the Company 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 a total of 150,000 shares of fully paid and
nonassessable Common Stock of the Company to be valued at $2.00 per share, or an
aggregate of $300,000. This represents the approximate closing bid price of the
Common Stock on the date hereof. Promptly following the effective date of the
registration statement described below, the Company shall issue such stock as
follows: 50,000 shares to Henry Fieldman; 50,000 shares to John Hay; and 50,000
shares to Anthony Ullman.
Promptly after the signing of this letter, 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 150,000 shares of Common
Stock of the Company to be issued to Anthony Ullman, John Hay and Henry
Fieldman.
<PAGE>
(3) Because you are representing the Company in connection with the MBE
Litigation, you and the Company want to make sure that any trading by you in the
Common Stock to be issued hereunder would not violate any applicable insider
trading laws. In this regard, the Company shall deliver to you at the time of
the issuance of the shares of Common Stock a comfort letter from its general
counsel indicating certain guidelines which should assist all of you in avoiding
the violation of, or avoiding the appearance of the violation of, any applicable
insider trading laws. These guidelines will be similar to the guidelines set
forth in the New York Stock Exchange Listed Company Manual regarding insider
trading and the timing of transactions. This will confirm that such letter shall
be in form acceptable to you at your sole discretion, and that, if it is not,
you shall have the right to rescind this letter and all legal fees shall then be
paid in accordance with the previously existing agreement.
Except as specifically set forth herein, all of the terms and
conditions of our prior fee agreement shall remain in full force and effect.
Please indicate your acceptance of the terms of this letter by signing
and below where indicated and returning it to me.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
--------------------------------
George R. Jensen, Jr.
Chief Executive Officer
ACCEPTED:
Fieldman Hay & Ullman, LLP
By: /s/ John Hay
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John Hay, Member
