As filed with the Securities and Exchange Commission on November 1, 2004
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)
100 Deerfield Lane, Suite 140
Malvern, Pennsylvania 19355
(Address of principal executive offices and zip code)
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USA TECHNOLOGIES 2004-B STOCK COMPENSATION PLAN
(full title of the plan)
- --------------------------------------------------------------------------------
George R. Jensen, Jr.
Chief Executive Officer
USA Technologies, Inc.
100 Deerfield Lane, Suite 140
Malvern, Pennsylvania 19355
(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.
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 500,000(1) $0.11 $55,000 $6.97
(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rule 457(c), the registration fee has been calculated at the average of the
bid and asked price within 5 days prior to the date of the filing of the
applicable registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The information required by Part I is included in documents sent or given
to participants in the Registrant's 2004-B Stock Compensation Plan to which this
registration statement relates pursuant to Rule 428(b)(1) of the Securities Act
of 1933, as amended ("Act").
Item 2. Registrant Information and Employee Plan Annual Information
The Registrant will provide participants, upon written or oral request and
without charge, a copy of the documents incorporated by reference in Item 3 of
Part II, which are incorporated by reference in the Section 10(a) prospectus,
and all documents required to be delivered to plan participants pursuant to Rule
428(b) under the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant's annual report on Form 10-KSB for the fiscal year ended
June 30, 2004 is 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.
Item 4. Description of Securities
The Company is proceeding with the registration of 500,000 shares of
Common Stock to be issued to the Company's current and future employees,
directors and consultants pursuant to the Company's 2004-B Stock Compensation
Plan. The Company's 2004-B Stock Compensation Plan was approved by the Board of
Directors on October 29, 2004.
The Company's Articles of Incorporation presently authorizes the issuance
of up to 475,000,000 shares of Common Stock, no par value. As of October 25,
2004, the number of issued and outstanding shares of Common Stock was
366,735,895.
The holders 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. As of October 29, 2004, the unpaid
and accumulated dividends on the Series A Preferred Stock was $7,069,237.
Shareholders of the Company do not have any preemptive rights to subscribe for
or purchase shares, obligations, warrants, or other securities of the Company.
Item 5. Interests of Named Experts and Counsel
Douglas M. Lurio, Esquire, President of Lurio & Associates, P.C.,
securities counsel to the Company, was the beneficial owner of 921,463 shares of
Common Stock on October 29, 2004.
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 Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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 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.
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 Malvern, Pennsylvania, on November 1, 2004.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
--------------------------
George R. Jensen, Jr.,
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1933, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ----------- ----- ----
/s/ GEORGE R. JENSEN, JR. CHAIRMAN OF THE BOARD OF DIRECTORS, NOVEMBER 1, 2004
- --------------------------- CHIEF EXECUTIVE OFFICER
GEORGE R. JENSEN, JR. (PRINCIPAL EXECUTIVE OFFICER)
/s/ MARY WEST YOUNG CHIEF FINANCIAL OFFICER (PRINCIPAL NOVEMBER 1, 2004
- --------------------------- ACCOUNTING OFFICER)
MARY WEST YOUNG
/s/ WILLIAM W. SELLERS DIRECTOR NOVEMBER 1, 2004
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WILLIAM W. SELLERS
/s/ STEPHEN P. HERBERT PRESIDENT, CHIEF OPERATING OFFICER, NOVEMBER 1, 2004
- --------------------------- DIRECTOR
STEPHEN P. HERBERT
/s/ WILLIAM L. VAN ALEN,JR. DIRECTOR NOVEMBER 1, 2004
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WILLIAM L. VAN ALEN, JR.
/s/ DOUGLAS M. LURIO DIRECTOR NOVEMBER 1, 2004
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DOUGLAS M. LURIO
/s/ STEVEN KATZ DIRECTOR NOVEMBER 1, 2004
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STEVEN KATZ
Exhibit No. Description
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5.1 Opinion of Lurio & Associates, P.C.
10.1 USA Technologies, Inc. 2004-B Stock Compensation Plan
23.1 Consent of Independent Registered Public Accounting Firm
Exhibit 5.1
[Lurio & Associates, P.C. Letterhead]
November 1, 2004
USA Technologies, Inc.
100 Deerfield Lane, Suite 140
Malvern, PA 19355
Attn.: 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 500,000 shares of
Common Stock of the Company issuable pursuant to the USA Technologies 2004-B
Stock Compensation Plan (the "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 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.
We assume that appropriate action will be taken, prior to the offer and
sale of the shares in accordance with the Plan, to register and qualify the
shares for sale under all applicable state securities or "blue sky" laws.
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 Plan, 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,
/s/ LURIO & ASSOCIATES, P.C.
Exhibit 10.1
USA TECHNOLOGIES, INC.
2004-B STOCK COMPENSATION PLAN
1. PURPOSE. The purpose of the USA Technologies, Inc. 2004-B 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 "CODE" means the Internal Revenue Code of 1986, as amended.
Reference to a specific section of the Code shall include any successor to such
section.
2.4 "COMMITTEE" means the committee designated by the Board to
administer the Plan under Section 4.
2.5 "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 8 hereof.
2.6 "COMPANY" means USA and any successor thereof.
2.7 "CONSULTANT" means a consultant retained to provide bona fide
services to, and who is not an employee of USA.
2.8 "DIRECTOR" means each director of USA who is not an employee of
USA.
2.9 "EMPLOYEE" means an officer or employee of the Company including
a director who is such an employee.
2.10 "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 average closing bid price of the
stock for each of the five trading days prior to such date.
2.11 "HOLDER" means an Employee, Director or Consultant to whom an
Award is made.
2.12 "USA" means USA Technologies, Inc., a Pennsylvania corporation
and any successor thereto.
2.13 "1933 ACT" means the Securities Act of 1933, as amended.
2.14 "PLAN" means the USA 2004-B Stock Compensation Plan herein set
forth, as amended from time to time.
2.15 "STOCK" means Common Stock awarded by the Committee under
Section 6 of the Plan.
2.16 "SEC" means the United States Securities and Exchange
Commission.
3. ELIGIBILITY. Any Employee, Eligible Director and Eligible 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 and shall act unanimously in all matters.
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 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 500,000
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.
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, 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 Form S-8. Notwithstanding anything else
set forth herein, an Award shall not be made to any Director, Consultant or
Employee unless such person in eligible to receive Stock which has been
registered under a Form S-8. In this regard, any Stock issuable to a Consultant
or Director shall be issued to an individual who provided bona fide services to
USA and such services are not in connection with the offer or sale of securities
in a capital-raising transaction, and do not directly or indirectly 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 For purposes of this Plan, transfer of employment between USA
and any Subsidiary shall not be deemed termination of employment.
10.4 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. Agreements evidencing Awards shall contain appropriate
provisions to effect withholding. The Plan is not qualified under Section 401(a)
of the Internal Revenue Code.
10.5 To the extent that federal laws (such as the 1934 Act, the Code
or the Employee Retirement Income Security Act of 1974) 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.
10.6 Additional information may be obtained about the Plan and the
Plan administrators by writing the Company at 100 Deerfield Lane, Suite 140,
Malvern, PA 19355, Attn: Stephen P. Herbert, or by calling 610-989-0340.
Dated: November 1, 2004
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to the registration of 500,000 shares of
Common Stock of USA Technologies, Inc. of our report dated September 10, 2004,
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, 2004,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
November 1, 2004