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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DI VISION OF
CORPORATI ON FI NANCE
November
5, 2019
Douglas L. Braunstein
Managing Member
HEC Master Fund LP
570 Lexington Avenue, 35th Floor
New York, New York 10022
Re: USA Technologies, Inc.
PREC14A preliminary proxy statement filing made on Schedule
14A
DFAN14A Rule 14a-12 soliciting materials filed under cover
of Schedule 14A
Filed on November 4, 2019 by Hudson Executive Capital LP, et
al.
File No. 001-33365
Dear Mr. Braunstein,
We have reviewed the above-captioned filings, and have the following
comments. Some
of our comments may ask for additional information so that we may better
understand the disclosure.
Please respond to this letter by amending the filings and/or by
providing the requested
information. After reviewing any amendment to the filings and any information
provided in reply to
these comments, we may have additional comments. If you do not believe our
comments apply to
your facts and circumstances, and/or do not believe an amendment is
appropriate, please tell us why
in a written response.
Preliminary Proxy Statement filed on Schedule 14A
1. The legend required by Rule 14a-6(e)(1) regarding identification of the
proxy statement as
"preliminary" similarly should appear on the first page of the proxy
statement, as defined in
Rule 14a-1(g), as distinguished from the correspondence addressed to
shareholders. Please
revise, in Amendment No. 1 to the proxy statement, in light of the
permissibility under Rule
14a-3(a) for the participants to lawfully solicit while using a
preliminary proxy statement.
2. As required by both Rule 14a-6(d) and Item 1(b) of Schedule 14A, please
place the
approximate date upon which the proxy statement will be mailed to
shareholders on the first
page of the proxy statement as defined under Rule 14a-1(g). At present,
this date appears in
the correspondence, which document has been voluntarily included under
cover of Schedule
14A and is outside the scope of the cited definition of proxy statement.
3. We recognize that the instant solicitation statement is not asking
security holders to vote on
any of the proposals delineated in the consent solicitation, but noticed
that the type of
proposals that might be presented would implicate Rule 14a-4(a)(3) if
introduced now.
Please advise us, with a view toward revised disclosure, whether or not
Proposals 2 and 3
should be divided into multiple separate proposals because each individual
amendment could
be considered a "separate matter" within the meaning of that codified
provision.
Douglas L. Braunstein
HEC Master Fund L.P.
November 5, 2019
Page 2
Hudson Participants, page 21
4. Hudson Executive, Management GP and Mr. Braunstein have been described as
persons who
"may be deemed to share power to vote..." Under Rule 13d-3(a), however, it
appears that
such persons indisputably are beneficial owners. Please remove the
implication that a legal
question or doubt exists as to whether such persons are in fact beneficial
owners by deleting
the "may be deemed" qualification. Please also note that use of the term
"deemed" in this
context is not synonymous with the term "considered," and, as such, has a
distinguishable
meaning that serves a specific legal purpose that ultimately results in the
term intentionally
only appearing within the regulatory text of Rule 13d-3(b) and Rule
13d-3(d).
Expenses, page 30
5. Please refer to the following representation: "The actual costs and expenses
could be
materially different than the estimated amounts." Please confirm, if true,
that the participants
will amend their proxy statement if they learn that the actual costs and
estimates have
materially differed from the estimates expected to be disclosed. See Rule
14a-9(a) of
Regulation 14A.
Exhibit A--2 | Form of Blue Consent
6. Please advise us, with a view toward revised disclosure, how the
participants have complied
with Rule 14a-4(e).
Rule 14a-12 Soliciting Materials filed under cover of Schedule 14A
7. Please refer to the following assertion: "...Immediate Change Required to
Correct Value-
Destructive Actions..." Notwithstanding the allegation that the Board has
squandered
"Company resources on employment contracts, legal costs and accounting
remediation that
could have been avoided through proper oversight,"as well as the associated
contention that
the Board bears responsibility for the "[i]mplementation of a
highly-dilutive, imprudent and
unnecessary financing agreement in October," neither of these two purported
instances of
Board malfeasance constitutes a "factual foundation" as described in Note b.
to Rule 14a-9.
Please provide us, with a view toward revised disclosure in the proxy
statement or otherwise,
of the factual foundation upon which the participants relied to not only
assert that the Board
has caused value destruction, but also squandered resources and entered into
a financing
agreement that was "highly-dilutive, imprudent, unnecessary." To the extent
corrective
disclosures are made, please address why the participants have not pursued
breach of
fiduciary duty claims in light of their opinions regarding the Board's
actions and/or inaction.
We remind you that the participants are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Douglas L. Braunstein
HEC Master Fund L.P.
November 5, 2019
Page 3
You may contact me at (202) 551-3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Nicholas P. Panos
Senior Special Counsel
Office of Mergers &
Acquisitions
cc: Richard M. Brand, Esq.