As filed with the Securities and Exchange Commission on April 18, 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) - -------------------------------------------------------------------------------- USA TECHNOLOGIES, INC. 2000-A STOCK COMPENSATION PLAN (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 25,000 $2.25 $56,250 $15.41 (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 April 14, 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 25,000 shares of Common Stock which may be issued to current and future employees, consultants, and directors of the Company as an employment incentive pursuant to the Company's 2000-A Stock Compensation Plan. The Stock Compensation Plan was approved by the Board of Directors of the Company in April, 2000. 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 and 6,500 shares of Common Stock have been issued upon the exercise of stock options at $2.50 per share. The foregoing also does not include the following which occurred from January 1, 2000 through April 14, 2000: 1,300,000 shares of Common Stock were sold by the Company at $2.00 per share pursuant to a private placement offering; 195,000 shares of Common Stock were issued to consultants; 1,260 shares of Common Stock were issued to an employee of the Company for services rendered to the Company; 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 USA Technologies, Inc. 2000-A Stock Compensation Plan 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 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. II-6
Signature Title Date --------- ----- ---- /s/ George R. Jensen, Jr. Chairman of the Board April 18, 2000 - --------------------------- and Chief Executive Officer, George R. Jensen, Jr. (Principal Executive Officer) /s/ Stephen P. Herbert President, Chief Operating April 18, 2000 - --------------------------- Officer, Director Stephen P. Herbert /s/ Leland P. Maxwell Senior Vice President, Chief April 18, 2000 - --------------------------- Financial Officer, Treasurer Leland P. Maxwell (Principal Accounting Officer) /s/ William W. Sellers - --------------------------- Director April 18, 2000 William W. Sellers /s/ Peter G. Kapourelos Director April 18, 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 18, 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 USA Technologies, Inc. 2000-A Stock Compensation Plan 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 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 ---------------------------------- 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 25,000 shares of Common Stock of the Company which may be issued to current and future employees, consultants, and directors of the Company as an employment incentive pursuant to the Company's 2000-A Stock Compensation Plan (the "Stock Plan"). 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 Stock Plan; 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 18, 2000 Page 2 Stock Plan, 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. 2000-A STOCK COMPENSATION PLAN 1. Purpose. The purpose of the USA Technologies, Inc. 2000-A Stock Compensation Plan is to provide an incentive to Employees, Consultants and Directors of the Company who are in a position to contribute materially to the long-term success of the Company, to increase their interest in the Company's welfare, and to aid in gaining the services of Employees, Consultants and Directors of outstanding ability who will contribute to the Company's success. 2. Definitions. 2.1 "Award" means an award of Stock under the Plan. 2.2 "Board" means the Board of Directors of USA Technologies, Inc. 2.3 "Committee" means the committee designated by the Board to administer the Plan under Section 4. 2.4 "Common Stock" means USA common stock, no par value per share, or such other class or kind of shares of capital stock or other securities as may result from the application of Section 7 hereof. 2.5 "Company" means USA and any successor thereof. 2.6 "Consultant" means a consultant retained to provide bona fide services to, and who is not an employee of USA. 1 2.7 "Director" means each director of USA who is not an employee of USA. 2.8 "Employee" means an officer or employee of the Company including a director who is such an employee. 2.9 "Fair Market Value" means, on any given date, the mean between the high and low prices of actual sales of Common Stock on the principal national securities exchange on which the Common Stock is listed on such date, or, if the Common Stock was not so listed, the fair market value of the stock as determined by the Committee on the basis of a review of the facts and circumstances presented to and reviewed by the Committee. 2.10 "Holder" means an Employee, Director or Consultant to whom an Award is made. 2.11 "USA" means USA Technologies, Inc., a Pennsylvania corporation and any successor thereto. 2.12 "1933 Act" means the Securities Act of 1933, as amended. 2.13 "Plan" means the USA 2000-A Stock Compensation Plan herein set forth, as amended from time to time. 2.14 "Stock" means Common Stock awarded by the Committee under Section 6 of the Plan. 2.15 "SEC" means the United States Securities and Exchange Commission. 2 3. Eligibility. Any Employee, Director or Consultant is eligible to receive an Award. 4. Administration of Plan. 4.1 The Plan shall be administered and interpreted by the Committee, which shall have full authority to act in selecting Employees, Directors and Consultants to whom Awards will be made, in determining the type and amount of Awards to be granted to each such Holder, the terms and conditions of Awards and the terms of agreements which will be entered into with Holders in connection with Awards. The Committee shall be appointed by the Board and shall have at least one member. 4.2 The Committee's powers shall include, but not be limited to, the power to determine whether, to what extent and under what extent and under what circumstances an Award is made. 4.3 The Committee shall have the power to adopt regulations for carrying out the Plan and to make such changes in such regulations as it shall from time to time deem advisable. The Committee shall have the power unilaterally and without approval of a Holder to amend any existing Award in order to carry out the purposes of the Plan so long as such amendment does not deprive the Holder of any benefit granted by the Award and so long as the amended Award comports with the terms of the Plan. Amendments adverse to the interests of the Holder must be approved by the 3 Holder. Any interpretation by the Committee of the terms and provisions of the Plan and the administration thereof, and all action taken by the Committee, shall be final and binding on Plan participants. 5. Shares of Stock Subject to the Plan. 5.1 Subject to adjustment as provided in Section 7, the total number of shares of Common Stock available for Awards under the Plan shall be 25,000 shares. 5.2 Any shares issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If any shares subject to any Award granted hereunder are forfeited or such Award otherwise terminates without the issuance of such shares, the shares subject to such Award, to the extent of any such forfeiture or termination, shall again be available for Awards under the Plan. 6. Stock. An Award of Stock is a grant by the Company of a specified number of shares of Common Stock to the Holder, which shares are subject to forfeiture upon the happening of specified events. Such an Award shall be subject to the following terms and conditions: 6.1 Stock may be evidenced by Stock agreements. Such agreements shall conform to the requirements of the Plan and may contain such other provisions as the Committee shall deem advisable. 4 6.2 Upon determination of the number of shares of Stock to be granted to the Holder, the Committee shall direct that a certificate or certificates representing the number of shares of Common Stock be issued to the Holder with the Holder designated as the registered owner. 6.3 The Committee may condition the grant of an Award of Stock upon the Holder's achievement of one or more performance goal(s) specified in the Stock agreement. If the Holder fails to achieve the specified performance goal(s), the Committee shall not grant the Stock to the Holder, or the Holder shall forfeit the Award of Stock and the Common Stock shall be forfeited to the Company. 6.4 The Stock agreement if any, shall specify the performance, employment or other conditions (including termination of employment on account of death, disability, retirement or other cause) under which the Stock may be forfeited to the Company. 7. Adjustments Upon Changes in Capitalization. In the event of a reorganization, recapitalization, stock split, spin-off, split-off, split-up, stock dividend, issuance of stock rights, 5 combination of shares, merger, consolidation or any other change in the corporate structure of USA affecting Common Stock, or any distribution to stockholders other than a cash dividend, the Board shall make appropriate adjustment in the number and kind of shares authorized by the Plan as it determines appropriate. No fractional shares of stock shall be issued pursuant to such an adjustment, but an amount equivalent to the portion of Fair Market Value attributable to any such fractional shares shall, where appropriate, be paid in cash to the Holder. 8. Termination and Amendment. The Plan shall remain in full force and effect until terminated by the Board. The Board shall have the power to amend, suspend or terminate the Plan at any time. 9. Form S-8. Promptly upon the approval of this Plan by the Board of Directors of USA, the Company shall, at its cost and expense, register all of the Stock under the 1933 Act pursuant to a Form S-8. Notwithstanding anything else set forth herein, an Award shall not be made to any Director, Consultant or Employee unless such person is eligible to receive Stock which has been registered under a Form S-8. In this regard, any Stock issuable pursuant to the Plan to a Consultant or Director shall be issued only to an individual who provides bona fide services to USA which are not in connection with the offer or sale of securities in a capital-raising transaction and/or do not directly or indirectly 6 promote or maintain a market for USA's securities. In connection with the issuance of any Stock pursuant to the Plan, USA shall, at its expense, use its best efforts to have any such Stock exempted from the registration requirements under applicable state securities laws. 10. General Provisions. 10.1 The Plan shall become effective upon its approval by the Board. 10.2 Nothing contained in the Plan, or an Award granted pursuant to the Plan, shall confer upon an Employee any right with respect to continuance of employment by the Company or upon any Director or Consultant any right with respect to continuance of Board service or the consulting arrangement (as the case may be), nor interfere in any way with the right of the Company to terminate such relationships at any time. 10.3 Holders shall be responsible to make appropriate provision for all taxes required to be withheld in connection with any Award. Such responsibility shall extend to all applicable federal, state, local or foreign withholding taxes. In the case of exercise of Awards, USA shall at the election of the Holder, have the right to retain the number of shares of Common Stock whose aggregate Fair Market Value equals the amount to be withheld in satisfaction of the applicable withholding taxes. Agreements 7 evidencing such Awards shall contain appropriate provisions to effect withholding in this manner. 10.4 To the extent that federal laws do not otherwise control, the Plan and all determinations made and actions taken pursuant hereto shall be governed by the law of the Commonwealth of Pennsylvania and construed accordingly. 8
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 25,000 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 April 18, 2000