As filed with the Securities and Exchange Commission on April 5, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------- FORM S-8 Registration Statement Under The Securities Act of 1933 ------------------------------------- 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 ----------------------------------------------------------------- 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. 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. II-1 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. II-2 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. II-3 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 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. II-5 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. II-6
Signature Title Date --------- ----- ---- /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 EXHIBIT INDEX
Exhibit No. Description Page No. - ----------- ----------- -------- 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
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 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.
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. 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 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. 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 -----------------
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