As
filed
with the Securities and Exchange Commission on June 19, 2006
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)
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Pennsylvania
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7359
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23-2679963
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||
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(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial Classification Code Number)
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(I.R.S.
Employer Identification No.)
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100
Deerfield Lane, Suite 140
Malvern,
Pennsylvania 19355
(Address
of principal executive offices and zip code)
USA
TECHNOLOGIES, INC. 2006-A 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
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be Offered
|
Amount
to be
Registered
|
Maximum
Offering
Price
Per share(1)
|
Proposed
Maximum
Aggregate
Offering Price
|
Proposed
Amount
of
Registration Fee
|
||||
|
Common
Stock
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25,000
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$8.00
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$200,000
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$21.40
|
(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 of Form S-8 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
Item
2.
Registrant Information and Employee Plan Annual Information
The
information required by Part I of Form S-8 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference
The
Registrant hereby incorporates by reference the following documents which have
previously been filed with the Commission under the Securities Exchange Act
of
1934:
(i)
the
Registrant’s Annual Report on Form 10-K for its fiscal year ended June 30,
2005;
(ii)
the
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended
September 30, 2005;
(iii)
the
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended December
31, 2005;
(iv) the
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended March
31, 2006;
(v)
the
Current Reports on Form 8-K filed on September 28, 2005, December 13, 2005,
December 19, 2005, February 7, 2006, February 14, 2006, April 13, 2006, and
April 17, 2006;
(vi)
the
Schedule 14-A Definitive Proxy Statement filed January 4, 2006; and
(vii)
the
description of the Registrant’s Common Stock contained in its Registration
Statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange
Act of 1934.
In
addition, all documents filed with the Commission by the Registrant pursuant
to
Sections 13(a) and 13(c), Section 14 and Section 15(d) of the Securities
Exchange Act of 1934, 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(in each case, other than
information in such documents that is deemed not to be filed).
Item
4.
Description of Securities
Not
applicable.
Item
5.
Interests of Named Experts and Counsel
Douglas
M. Lurio, Esquire, President of Lurio & Associates, P.C., counsel to the
Company, is a Director of the Company, and as of the date of this Registration
Statement beneficially owns 7,030 shares of Common Stock and options to purchase
up to 12,000 shares of Common Stock.
Item
6.
Indemnification of Directors and Officers
Section
1746 of the Pennsylvania Business Corporation Law of 1988, as amended ("BCL"),
authorizes a Pennsylvania corporation to indemnify its officers, directors,
employees and agents under certain circumstances against expenses and
liabilities incurred in legal proceedings involving such persons because of
their holding or having held such positions with the Company and to purchase
and
maintain insurance of such indemnification. The Company's By-laws substantively
provide that the Company will indemnify its officers, directors, employees
and
agents to the fullest extent provided by Section 1746 of the BCL.
Section
1713 of the BCL permits a Pennsylvania corporation, by so providing in its
By-laws, to eliminate the personal liability of a director for monetary damages
for any action taken unless the director has breached or failed to perform
the
duties of his office and the breach or failure constitutes self-dealing, willful
misconduct or recklessness. In addition, no such limitation of liability is
available with respect to the responsibility or liability of a director pursuant
to any criminal statute or for the payment of taxes pursuant to Federal, state
or local law. The Company's By-laws eliminate the personal liability of the
directors to the fullest extent permitted by Section 1713 of the
BCL.
Item
7.
Exemption from Registration Claimed
Not
applicable.
Item
8.
Exhibits
The
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 or in the aggregate, represent a fundamental change in
the
information in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no
more than a 20% change in the maximum aggregate offering price set forth in
the
“Calculation of Registration Fee” table in the effective 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.
Provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8, or Form F-3, and the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed by the registrant pursuant to section 13 or section
15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
the
registration statement.
(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 liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance
on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supercede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) The
undersigned registrant hereby undertakes 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 any employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
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.
(6)
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 June 19, 2006.
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USA
TECHNOLOGIES, INC.
By:
/s/ George R. Jensen, Jr.
George
R. Jensen, Jr.,
Chief
Executive Officer
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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.
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SIGNATURES
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TITLE
|
DATE
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||
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/s/
GEORGE R. JENSEN, JR.
GEORGE
R. JENSEN, JR.
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CHAIRMAN
OF THE BOARD OF DIRECTORS,
CHIEF
EXECUTIVE OFFICER
(PRINCIPAL
EXECUTIVE OFFICER)
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June
19, 2006
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||
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/s/DAVID
M. DEMEDIO
DAVID
M. DEMEDIO
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CHIEF
FINANCIAL OFFICER
(PRINCIPAL
ACCOUNTING OFFICER)
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June
19, 2006
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||
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/s/
STEPHEN P. HERBERT
STEPHEN
P. HERBERT
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PRESIDENT,
CHIEF OPERATING OFFICER, DIRECTOR
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June
19, 2006
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||
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/s/
WILLIAM L. VAN ALEN,JR.
WILLIAM
L. VAN ALEN,JR.
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DIRECTOR
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June
19, 2006
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||
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/s/
DOUGLAS M. LURIO
DOUGLAS
M. LURIO
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DIRECTOR
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June
19, 2006
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||
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/s/
STEVEN KATZ
STEVEN
KATZ
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DIRECTOR
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June
19, 2006
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/s/
ALBERT PASSNER
ALBERT
PASSNER
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DIRECTOR
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June
19, 2006
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EXHIBIT
INDEX
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Exhibit
No.
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Description
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5.1**
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Opinion
of Lurio & Associates, P.C.
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10.1**
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USA
Technologies, Inc. 2006-A Stock Compensation Plan
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23.1**
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Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
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23.2**
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Consent
of Goldstein Golub Kessler LLP, Independent Registered Public Accounting
Firm.
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_________________
**
Filed
herewith.
Exhibit
5.1
[Lurio
& Associates, P.C. Letterhead]
June
19,
2006
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
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 issuable pursuant to the USA Technologies, Inc. 2006-A 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.
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 non-assessable.
We
hereby
consent to the filing of this opinion as an Exhibit to the Registration
Statement.
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Sincerely,
/s/
LURIO & ASSOCIATES, P.C.
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Exhibit
10.1
USA
TECHNOLOGIES, INC.
2006-A
STOCK COMPENSATION PLAN
1. Purpose.
The
purpose of the USA Technologies, Inc. 2006-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 "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 2006-A 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 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.
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:
June 13, 2006
Exhibit
23.1
We
consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the USA Technologies, Inc. 2006-A Stock
Compensation Plan 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
June
19,
2006
Exhibit
23.2
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 USA Technologies, Inc. 2006-A Stock
Compensation Plan of our report dated September 2, 2005, except for the first paragraph of note 2, as to which the date is February 17, 2006, with respect to the
consolidated financial statements of USA Technologies, Inc. included in its
Annual Report (Form 10-K) for the year ended June 30, 2005, filed with the
Securities and Exchange Commission.
| /s/ Goldstein Golub Kessler LLP |
New
York,
NY
June
19,
2006