<PAGE>
As filed with the Securities and Exchange Commission on April 5, 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)
- --------------------------------------------------------------------------------
STEPHEN LUCE EMPLOYEE COMPENSATION AGREEMENT
(full title of the plan)
- --------------------------------------------------------------------------------
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 1,260 $2.85 $3,591 $.98
(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 31, 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 (e) 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;
(d) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended September 30, 1999; and
(e) The Registrant's Form 10-QSB Quarterly Report for the quarterly
period ended December 31, 1999.
Recent Developments
During the third 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 1,260 shares of
Common Stock pursuant to an agreement with Stephen Luce dated November 18,
1999. These shares are being issued for services rendered to the Company
by Stephen Luce.
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, 1,200,000 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 December 31, 1999, there were 11,146,744 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 December 31, 1999, 623,377 shares of
Series A Preferred Stock were issued and outstanding and are convertible into
623,377 shares of Common Stock. As of December 31, 1999, there were $3,692,784
of accrued and unpaid dividends on the Series A Preferred Stock which are
convertible into 369,278 shares of Common Stock. As of December 31, 1999, a
total of 487,773 shares of Series A Preferred Stock have been converted into
564,236 shares of Common Stock and accrued and unpaid dividends thereon have
been converted into 218,491 shares of Common Stock. As of December 31, 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, 157,900 1999-A Warrants, 3,560,000 1999-B Warrants, or the 100,000
Warrants held by affiliates and/or consultants to GEM Advisors, Inc., issued and
outstanding as of December 31, 1999. From January 1, 2000 through March 31,
2000, 150,900 shares of Common Stock were issued upon the exercise of 1999-A
Warrants at $.50 per share and 117,750 shares of Common Stock were issued upon
the exercise of 1999-B Warrants at $2.00 per share.
The foregoing does not include 1,867,200 shares of Common Stock
issuable upon conversion of the $4,668,000 principal amount of the Senior Notes
or 150,000 shares of Common Stock issuable upon the exercise of warrants issued
to a consultant which were outstanding on December 31, 1999. From January 1,
2000 through March 31, 2000, $525,000 principal amount of the Senior Notes have
been converted at the rate of $2.50 per share into 210,000 shares of Common
Stock and 34,000 shares of Common Stock were issued upon exercise of the
warrants at $2.50 per share.
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, 1999, there was a total of 11,740 Common Stock
Purchase Rights outstanding at a price of $10.00 per share. As of December 31,
1999, there was a total of 1,001,267 options outstanding to purchase Common
Stock at exercise prices ranging from $.50 to $5.00 per share, of which 821,267
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. From January 1, 2000 through March 31, 2000,
10,000 shares of Common Stock have been issued upon the exercise of stock
options at $1.50 per share.
The foregoing also does not include the following which occurred from
January 1, 2000 through March 31, 2000: 1,213,500 shares of Common Stock were
sold by the Company at $2.00 per share pursuant to a private placement offering;
45,000 shares of Common Stock were issued to consultants; and 87,500 shares of
Common Stock were issued to five key employees of the Company as a bonus for
services rendered and to be rendered to the Company during calendar year 2000.
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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<PAGE>
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 63,213 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. The Company maintains a director and officer liability
insurance policy covering each of the Company's directors and executive
officers.
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.
10 Compensation Agreement between Stephen Luce and USA Technologies,
Inc. dated November 18, 1999.
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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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
II-4
<PAGE>
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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<PAGE>
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 April 5, 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 April 5, 2000
- --------------------------- and Chief Executive Officer,
George R. Jensen, Jr. (Principal Executive Officer)
/s/ Stephen P. Herbert President, Chief Operating April 5, 2000
- --------------------------- Officer, Director
Stephen P. Herbert
/s/ Leland P. Maxwell Senior Vice President, Chief April 5, 2000
- --------------------------- Financial Officer, Treasurer
Leland P. Maxwell (Principal Accounting Officer)
/s/ William W. Sellers
- --------------------------- Director April 5, 2000
William W. Sellers
/s/ Peter G. Kapourelos Director April 5, 2000
- ---------------------------
Peter G. Kapourelos
Director April __, 2000
- ---------------------------
Henry B. duPont Smith
Director April __, 2000
- ---------------------------
William L. Van Alen, Jr.
Director April __, 2000
- ---------------------------
Steven Katz
/s/ Douglas M. Lurio Director April 5, 2000
- ---------------------------
Douglas M. Lurio
Director April __, 2000
- ---------------------------
Edwin R. Boynton
</TABLE>
II-6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
5 Opinion of Lurio & Associates, P.C.
10 Compensation Agreement between Stephen Luce and USA
Technologies, Inc. dated November 18, 1999.
23.1 Consent of Lurio & Associates, P,C. (included in the opinion
filed as Exhibit 5 hereto)
23.2 Consent of Independent Auditors
</TABLE>
<PAGE>
Exhibit 5
April 5, 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
----------------------------------
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
1,260 shares of Common Stock of the Company issuable pursuant to the
Compensation Agreement between the Company and Stephen Luce dated
November 18, 1999 (the "Compensation 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 Compensation 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.
April 5, 2000
Page 2
Compensation Agreement, and subject to compliance with applicable state
securities laws, 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.
/s/ Lurio & Associates, P.C.
<PAGE>
USA TECHNOLOGIES, INC.
200 PLANT AVENUE
WAYNE, PENNSYLVANIA 19087
(610)989-0340
November 18, 1999
Dear Stephen Luce:
As you know, the Company has offered its employees the option to receive
shares of Common Stock of the Company in lieu of cash salary payments otherwise
due for the period from November 26, 1999 through February 4, 2000.
1. Issuance. This is to acknowledge and confirm your agreement that 25%
of your net pay due to you from the Company during the fourth quarter of 1999
and first quarter of 2000 shall be paid to you by the issuance to you of 1,260
shares of Common Stock. If your total net pay over the six weeks is greater than
twice this number of shares, such shortfall will be paid to you in cash. All of
these shares of Common Stock have been valued at $2.00 per share, the market
value of the Common Stock on the date of the Board of Director's approval of
this plan.
Pursuant to the foregoing, the Company shall issue to you in your
individual name, a total of 1,260 shares of nonassessable, free trading Common
Stock of the Company. Upon the effective date of the Form S-8 registration
statement described below, the Company shall issue all of such stock to you. You
will receive your stock certificate within several weeks.
2. Form S-8. Promptly after the date of this agreement, the Company will
cause at its expense a registration statement on Form S-8 to be filed with the
Securities and Exchange Commission for the purpose of registering all of the
shares of Common Stock of the Company issuable to you pursuant hereto. The
shares of Common Stock are also exempt from registration pursuant to Section
202(g) of the Pennsylvania Securities Act of 1972. In this regard, you represent
to the Company that as of the date hereof you are a resident of Pennsylvania.
<PAGE>
3. Rule 144 and Insider Trading. If you are currently an officer of the
Company, you hereby acknowledge your obligations under Rule 144 promulgated
under the Securities Act of 1933, as amended, in connection with any sale of the
shares. In addition, in order to avoid any violation of the insider trading
laws, or to avoid any appearance of any violation thereof, as long as you are an
officer of the Company, you agree to notify Stephen P. Herbert, President, or
the compliance officer of the Company, before you sell any of these shares.
If you have any questions at any time regarding the insider trading
laws, please contact Stephen P. Herbert, President, or the Company's chief
compliance officer.
4. Market Price Of Common Stock. For purposes of the valuation of the
Common Stock, you and the Company have valued the shares at $2.00 per share, the
market price thereof as of the date of the approval of the plan by the Board of
Directors. You understand that there is no assurance that you could sell the
Common Stock in the future for any guaranteed price, and you understand that the
future sales price of the Common Stock could be less than $2.00 per share. In
such event, you would receive less than $2.00 per share for the Common Stock. By
agreeing to accept the Common Stock, you are bearing the risk of the fluctuation
or reduction in the market value of the Common Stock. The Company has not made
any representations or warranties to you regarding the market price for the
Common Stock in the future or the continuation in the future of any public
trading market for the Common Stock.
5. Description of Common Stock. The Company is authorized to issue up to
62,000,000 shares of Common Stock. As of September 30, 1999, there were
6,191,097 shares of Common Stock issued and outstanding. 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 dividend may
be paid on the Common Stock until all accumulated and unpaid dividends on the
Series A Convertible 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 of the assets of the Company available for
distribution, subject to the liquidation preference of the
<PAGE>
Series A Convertible Preferred Stock of $10.00 per share and any unpaid and
accumulated dividends on the Series A Convertible Preferred Stock. The holders
of the Common Stock do not have any preemptive rights to subscribe for or
purchase shares, obligations, or other securities of the Company.
6. Tax Effects. The issuance of the Common Stock to you will constitute
taxable compensation income to you at a value of $2.00 per share. The Company
will receive a compensation deduction in the amount of such compensation.
7. Form 10-KSB. The Company has delivered to you, and you acknowledge
receipt of, the Form 10-KSB of the Company for the fiscal year ended June 30,
1999.
In addition, the Company will make available to you without charge, upon
written or oral request, any of the documents incorporated by reference in Item
3 of Part II of the Form S-8 registration statement referred to above, and these
documents are also incorporated by reference herein. Any such request should be
delivered to Stephen P. Herbert, President, at the address set forth above.
8. Return of Shares. Notwithstanding anything else set forth herein, if
your employment with the Company shall be terminated for any reason whatsoever,
whether with or without cause, prior to payment in full, you agree to
immediately return to the Company the pro rata portion of the Common Stock which
has been unearned as of the date of such termination of employment. If the
Common Stock has been sold by you, you agree to return a payment in the amount
equal to such unearned shares of Common stock to be valued at $2.00 per share.
Except as specifically set forth herein, all of the terms and conditions
of your presently existing employment arrangements with the Company shall remain
in full force and effect.
This will confirm that prior to your acceptance of this letter, you have
reviewed this letter and the Form 10-KSB referred to above, and except as set
forth herein or in the Form 10-KSB, you have not relied upon any representations
or warranties from or of the Company whatsoever.
<PAGE>
Please indicate your acceptance of the terms of this letter by signing
below where indicated and returning it to me.
USA TECHNOLOGIES, INC.
By: /s/ Leland P. Maxwell
-----------------------
Leland P. Maxwell
Chief Financial Officer
ACCEPTED AND AGREED TO:
Sign name: /s/ Steve Luce
----------------------
Print name: Steve Luce
----------------------
Dated: Nov. 18, 1999
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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 1,260 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
April 5, 2000
