forms-8.htm
As filed
with the Securities and Exchange Commission
on
September 24, 2008
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
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7359
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23-2679963
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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. 2008 STOCK INCENTIVE 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 3320
Philadelphia,
PA 19103
(215)
665-9300
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Offered
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Amount
to be Registered
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Maximum
Offering Price Per share(1)
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Proposed
Maximum Aggregate Offering Price
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Proposed
Amount of Registration Fee
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Common
Stock
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300,000 |
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$ |
4.42
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$ |
1,326,000 |
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$ |
52.11 |
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(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 business 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, but will be delivered to
the eligible employees, directors and consultants, 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, but will be delivered to
the eligible employees, directors and consultants, 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 (other than information in a report on Form 8-K that is “furnished” and not
“filed” pursuant to Form 8-K, and, except as may be noted in any Form 8-K,
exhibits filed on such form that are related to such information):
(i) the
Registrant’s Annual Report on Form 10-K for its fiscal year ended June 30, 2008;
and
(ii) the
description of the Registrant’s Common Stock contained in its Registration
Statement on Form 8-A, (No. 001-33365), filed on March 15, 2007 pursuant to
Section 12(b) 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, is a director of the Registrant and the President of Lurio
& Associates, P.C., the law firm that is issuing an opinion on the legality
of the Registrant’s Common Stock offered hereby.
Item 6.
Indemnification of Directors and Officers
As
permitted by the Pennsylvania Business Corporation Law of 1988 ("BCL"), the
Registrant’s By-laws provide that directors will not be personally liable, as
such, for monetary damages for any action taken unless the director has breached
or failed to perform the duties of a director under the BCL and the breach or
failure to perform constitutes self-dealing, willful misconduct or recklessness.
This limitation of personal liability does not apply to any responsibility or
liability pursuant to any criminal statute, or any liability for the payment of
taxes pursuant to Federal, State or local law. The By-laws also include
provisions for indemnification of the Registrant’s directors and officers to the
fullest extent permitted by the BCL. In addition, the Registrant has entered
into separate indemnification agreements with its directors and executive
officers which require the Registrant to indemnify each of such executive
officers and directors to the fullest extent permitted by the law of the
Commonwealth of Pennsylvania against certain liabilities which may arise by
reason of their status as directors and officers. The indemnification agreements
also provide that the Registrant must advance all expenses incurred by the
indemnified person in connection with any proceeding, provided the indemnified
person undertakes to repay the advanced amounts if it is determined ultimately
that the indemnified person is not entitled to be indemnified. Insofar as
indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of USA pursuant to the foregoing
provisions, or otherwise, we have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
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) That,
for purposes of determining liability of the undersigned registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) 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.
(7)
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 September 23, 2008.
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USA
TECHNOLOGIES, INC.
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By:
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/s/George R. Jensen, Jr.
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GEORGE
R. JENSEN, JR.,
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Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been duly signed below by the following persons in the capacities
and on the dates indicated.
SIGNATURES
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TITLE
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DATE
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/s/
George R. Jensen, Jr.
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Chairman
of the Board of Directors
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September
23, 2008
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GEORGE
R. JENSEN, JR.
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and
Chief Executive Officer
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(Principal
Executive Officer)
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/s/
David M. DeMedio
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Chief
Financial Officer (Principal
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September
23, 2008
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DAVID
M. DEMEDIO
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Accounting
Officer)
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/s/
Stephen P. Herbert
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Chief
Operating Officer, President
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September
23, 2008
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STEPHEN
P. HERBERT
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and
Director
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/s/
William L. Van Alen, Jr.
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Director
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September
23, 2008
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WILLIAM
L. VAN ALEN, JR.
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/s/
Douglas M. Lurio
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Director
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September
23, 2008
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DOUGLAS
M. LURIO
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/s/ Steven
Katz
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Director
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September
23, 2008
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STEVEN
KATZ
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/s/
Joel Brooks
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Director
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September
23, 2008
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JOEL
BROOKS
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/s/
Stephen W. McHugh
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Director
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September
23, 2008
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STEPHEN
W. MCHUGH
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EXHIBIT
INDEX
Exhibit
No.
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Description
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Opinion
of Lurio & Associates, P.C.
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USA
Technologies, Inc. 2008 Stock Incentive Plan
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Consent
of Goldstein Golub Kessler LLP, Independent Registered Public Accounting
Firm.
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Consent
of McGladrey & Pullen, LLP, Independent Registered Public Accounting
Firm.
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23.3
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Consent
of Counsel (included in Exhibit
5.1)
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_________________
** Filed
herewith.
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