USA TECHNOLOGIES, INC.
THE
COMMON STOCK ISSUABLE PURSUANT TO THIS AGREEMENT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THE COMMON
STOCK ISSUABLE PURSUANT TO THIS AGREEMENT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
UNDER SUCH ACT AND SUCH LAWS WITH RESPECT TO THE COMMON STOCK ISSUABLE PURSUANT
TO THIS AGREEMENT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
USA
TECHNOLOGIES, INC.
This
2006-B COMMON STOCK PURCHASE AGREEMENT is made this 25 day of August 2006 by
and
between USA TECHNOLOGIES,
INC., a Pennsylvania corporation (“USA” or the “Company”), and XXXXX XXXXX
(“XXXXX” or “Investor”).
Background
As
more
fully set forth herein, ILLES has agreed to purchase from the Company shares
of
Common Stock of the Company (“Common Stock”) for a purchase price not to exceed
Fifteen Million Dollars ($15,000,000)(the “Commitment Amount”).
Agreement
NOW
THEREFORE, intending to be legally bound hereby, the parties agree as
follows:
1.Commitment.
Subject
to the terms and conditions hereof, ILLES agrees to purchase from USA shares
of
Common Stock with an aggregate purchase price not to exceed the Commitment
Amount. The aggregate number of shares of Common Stock to be purchased by ILLES
under this Agreement shall be as provided in subsection C. of this Section
1.
During
the Put Commitment Period (as defined below), ILLES shall be required to
purchase Common Stock from USA from time to time pursuant to the election of
USA
as described in subsection A. below.
A.
During
the period of time from and after the effectiveness of the Initial Registration
Statement (as defined in Section 7 hereof) and through August 30, 2009 (“Put
Commitment Period”), USA shall have the right at any time and from time to time
to require ILLES to purchase Common Stock from the Company at the lower of
the
following price: (i) Thirty Dollars ($30.00) per share (the “Base Per Share
Price”); or (ii) 90% of the closing bid price per share on the date prior to the
date of the delivery by USA to ILLES of the Commitment To Purchase Form
described below. For example, if the closing bid price of the shares on the
applicable date was $50.00, then the exercise price would be the Base Per Share
Price (i.e., $30.00), and if the closing bid price of the shares on the
applicable date was $20.00, then the exercise price would be $18.00. USA
shall
require
ILLES to purchase Common Stock from USA hereunder by delivery to ILLES (prior
to
expiration of the Put Commitment Period) of the completed Commitment To Purchase
Form that is attached hereto setting forth the purchase price of the Common
Stock to be purchased by ILLES from USA (“Commitment Purchase Price”) and the
aggregate number of shares to be purchased by ILLES. The Commitment Purchase
Price shall be delivered to the Company by ILLES within seven (7) business
days
after delivery to ILLES of the Commitment To Purchase Form and shall be paid
by
ILLES either in cash or by certified check or bank draft payable to the order
of
the Company. ILLES shall not be required by USA to purchase any Common Stock
from USA pursuant to this Section 1.A unless the Common Stock being purchased
by
ILLES from USA hereunder has been registered for resale by ILLES under the
Act
pursuant to an effective registration statement, all in accordance with Section
7.
1
B.
Notwithstanding anything else set forth herein during any calendar month during
the Put Commitment Period, ILLES shall not be required by USA to purchase under
this Agreement Common Stock with an aggregate purchase price of more than Eight
Hundred Thousand Dollars ($800,000).
C.
The
initial number of shares of Common Stock subject to this Agreement shall be
1,000,000. In order to ensure that ILLES shall purchase Common Stock under
this
Agreement with a purchase price of up to the Commitment Amount, at any time
and
from time to time during the Put Commitment Period, and subject to the other
terms and conditions of this Agreement, USA shall have the right to increase
the
number of shares of Common Stock covered by this Agreement by notice to ILLES.
2
D.
At the
time of ILLES’ signing of this Agreement, USA shall pay to ILLES a due
diligence/commitment fee consisting of 20,000 shares of restricted Common Stock
(“Due Diligence Shares”).
2.
Share
Issuance.
Upon
the payment of the Commitment Purchase Price as aforesaid, the Company shall
issue and cause to be delivered with all reasonable dispatch to ILLES and in
the
name of ILLES, a certificate or certificates for the number of shares of Common
Stock so purchased. Such certificate or certificates shall be deemed to have
been issued and ILLES shall be deemed to have become a holder of record of
such
Common Stock on and as of the date of the delivery to the Company of and payment
of the Commitment Purchase Price as aforesaid. If, however, at the date of
payment of such Commitment Purchase Price, the transfer books for the Common
Stock shall be closed, the certificates for the Common Stock shall be issued
and
ILLES shall become a record owner of such Common Stock on and as of the next
date on which such books shall be opened, and until such date the Company shall
be under no duty to deliver any certificate for such Common Stock.
3.
Representations
by ILLES.
ILLES
represents and warrants to the Company as follows:
(a)
ILLES
has received, read and understands the provisions of each of the following:
(i)
the Company’s Annual Report on Form 10-K for the fiscal year ended June 30,
2005; (ii) the Company’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005; (iii) the Company’s Quarterly Report on Form 10-Q for the
quarter ended December 31, 2005; (iv) the Company’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2006; (v) the Company’s Amendment No. 1 to
Registration Statement on Form S-1 filed with the Commission on April 6, 2006
(File No. 333-132019); (vi) the risk factors incorporated by reference herein
in
Section 3(i) hereof; and (vii) the Company’s Form 8-K filed with the Commission
on June 13, 2006, June 20, 2006, and July 26, 2006. All of the foregoing
together with this Agreement shall be referred to herein as “Offering
Materials”.
(b)
ILLES
has relied only upon the information presented and contained in the Offering
Materials. ILLES has had the opportunity to ask of the person or persons acting
on behalf of the Company any and all relevant questions in connection with
any
aspect of the Company including, but not limited to, the Common Stock offered
by
the Offering Materials and has received answers which ILLES considers to be
reasonably responsive to such questions. ILLES has had the opportunity to verify
the accuracy of the information contained in the Offering Materials.
3
(c)
ILLES
understands that ILLES is subscribing for the Common Stock without being
furnished any literature or prospectus in connection with the Offering other
than the Offering Materials, and that the Offering of the Common Stock presented
in the Offering Materials will not have been scrutinized by the securities
administrator or similar bureau, agency, or department of the state of ILLES’
residence.
(d)
ILLES
understands (i) that the neither the Common Stock nor the Due Diligence Shares
have been registered under the Securities Act of 1933, as amended (the “Act”),
or registered or qualified under the securities laws of the state of ILLES’
residence, (ii) except as provided in Section 7 hereof, ILLES has no right
to
require such registration or qualification, and (iii) that therefore ILLES
must
bear the economic risk of the investment for an indefinite period of time
because neither the Common Stock nor the Due Diligence Shares may be sold unless
so registered or qualified or unless an exemption from such registration and
qualification is available.
Although
the Company has agreed to use its best efforts to register for resale the Common
Stock and the Due Diligence Shares with the SEC, and to use its best efforts
to
keep such registration statement current and effective, there can be no
assurance that such efforts will be successful. In any such event, neither
the
Common Stock nor the Due Diligence Shares would be registered for resale under
the Act, and could only be sold in reliance upon exemptions from registration
under the Act.
(e)
The
Common Stock is being purchased for ILLES’ own account for investment purposes
only and not for the interest of any other person and is not being purchased
with a view to or for the resale, distribution, subdivision or fractionalization
thereof. Although the Common Stock is currently traded on the OTC Bulletin
Board
under the symbol USAT, ILLES also understands that there may not be any
established public trading market for the sale of such securities.
4
(f)
ILLES
is able to bear the economic risks related to purchase of the Common Stock
for
an indefinite period of time (i.e., ILLES is able to afford a complete loss
of
the Common Stock ILLES is subscribing to purchase). ILLES’ net worth and assets
are sufficient to enable ILLES to purchase shares of Common Stock from USA
in
the amount of the Commitment Amount pursuant to this Agreement.
(g)
ILLES’ overall commitment to investments which are not readily marketable is not
disproportionate to ILLES’ net worth and ILLES’ investment in the Company will
not cause such overall commitment to become excessive.
(h)
ILLES
has adequate means of providing for ILLES’ current needs and possible personal
contingencies. ILLES has no need for liquidity of the Common Stock subscribed
to
be purchased hereby and has no reason to anticipate any change in ILLES’
personal circumstances, financial or otherwise, which might cause or require
any
sale or distribution of such Common Stock subscribed to be purchased.
(i)
ILLES
recognizes that the purchase of the Common Stock involves a high degree of
risk
including those special risks set forth under the caption "Risk Factors" and
“Forward Looking Statements” in Amendment No. 1 to the Form S-1 Registration
Statement of the Company filed with the Commission on April 6, 2006 (No.
333-132019) all of which are incorporated herein by reference.
(j)
ILLES
understand that ILLES’ right to transfer the Common Stock and the Due Diligence
Shares will be restricted as set forth on the certificate evidencing the Common
Stock and the Due Diligence Shares. Such restrictions include provisions against
transfer unless such transfer is not in violation of the Act, or applicable
state securities laws (including investor suitability standards). ILLES is
familiar with Regulation M promulgated under the Act and agrees to comply with
his obligations thereunder including those relating to his status as an
underwriter of the Common Stock and the Due Diligence Shares. ILLES is aware
of
the SEC staff’s position on short sales set forth in CF Tel. Interp. A.65.
5
(k)
All
information which ILLES has provided to the Company including, but not limited
to, financial position, and status as an accredited investor, and knowledge
of
financial and business matters is true, correct and complete as of the date
of
execution of this Agreement. ILLES understands that the Company will rely in
a
material degree upon the representations contained herein.
(l)
ILLES
understands that a legend may be placed on any stock certificate representing
the Common Stock and the Due Diligence Shares substantially to the following
effect:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES STATUTES
AND
REGULATIONS. SUCH SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES STATUTES AND REGULATIONS, UNLESS, IN THE OPINION
(WHICH SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION) OF
COUNSEL SATISFACTORY TO THE CORPORATION, SUCH REGISTRATION IS NOT
REQUIRED.
(m)
ILLES
is an "accredited investor" as defined in Rule 501 promulgated under the Act
because ILLES’ individual net worth (or ILLES’ joint net worth with his spouse)
on the date hereof exceeds $1,000,000.
(n)
ILLES
has obtained all necessary authorizations, registrations, permits, or consents,
governmental or otherwise, required in connection with his entering into or
performing any of the transactions contemplated by this Agreement.
4.
Adjustments.
Subject
and pursuant to the provisions of this Section 4, the Base Per Share Price
shall
be subject to adjustment from time to time only as set forth
hereinafter:
6
a.
In
case the Company shall declare a Common Stock dividend on the Common Stock,
then
the Base Per Share Price shall be proportionately decreased as of the close
of
business on the date of record of said Common Stock dividend in proportion
to
such increase of outstanding shares of Common Stock.
b.
If the
Company shall at any time subdivide its outstanding Common Stock by
recapitalization, reclassification or split-up thereof, the Base Per Share
Price
immediately prior to such subdivision shall be proportionately decreased, and,
if the Company shall at any time combine the outstanding shares of Common Stock
by recapitalization, reclassification, reverse stock-split, or combination
thereof, the Base Per Share Price immediately prior to such combination shall
be
proportionately increased. Any such adjustment to the Base Per Share Price
shall
become effective at the close of business on the record date for such
subdivision or combination. The Base Per Share Price shall be proportionately
increased or decreased, as the case may be, in proportion to such increase
or
decrease, as the case may be, of outstanding shares of Common
Stock.
c. Whenever
the Base Per Share Price is adjusted as herein provided, the Company shall
promptly mail to ILLES a statement setting forth the adjusted Base Per Share
Price determined as so provided.
5.
Non-Assessable.
The
Company agrees that all shares of Common Stock issued hereunder shall be, at
the
time of delivery of the certificates for such Common Stock, validly issued
and
outstanding, fully paid and non-assessable.
6.
Securities
Laws.
As a
condition to the issuance of any Common Stock pursuant this Agreement, ILLES
shall execute and deliver such representations, warranties, and covenants,
that
may be required by applicable federal and state securities law, or that the
Company determines is reasonably necessary in connection with the issuance
of
such Common Stock. In addition, the certificates representing the Common Stock
shall contain such legends, or restrictive legends, or stop transfer
instructions, as shall be required by applicable Federal or state securities
laws, or as shall be reasonably required by the Company or its transfer
agent.
7
7.
Registration
Provisions.
The
Company shall promptly prepare and file, at its sole cost and expense, and
thereafter use its best efforts to have declared effective, an appropriate
registration statement with the Securities and Exchange Commission registering
all of the 1,000,000 shares of Common Stock initially covered by this Agreement
and the Due Diligence Shares for resale by ILLES under the Act (the “Initial
Registration Statement”). As provided in Section 1.C hereof, USA has the right
from time to time to increase the number of shares of Common Stock to be covered
by this Agreement. Any such additional shares may be included in an amendment
to
the Initial Registration Statement, or in a separate additional registration
statement.
The
term
“registration statement” whenever and as used in this Agreement shall mean and
include for all purposes the Initial Registration Statement and any amendment
or
post-effective amendment thereto as well as any additional registration
statement or amendment or post-effective amendment thereto covering any Common
Stock subject to this Agreement.
The
registration statement shall be prepared as a "shelf" registration statement
under Rule 415, and the Company shall use its best efforts to have the
registration statement maintained effective until the earlier of (i) two years
from the effective date of the Initial Registration Statement, or (ii) the
date
that all of the Common Stock covered by this Agreement is resold by ILLES
pursuant to the registration statement or otherwise.
At
the
Company’s request, ILLES shall furnish to the Company such information regarding
ILLES, the Common Stock held by ILLES, and the intended method of disposition
of
such Common Stock to the extent required to effect the registration of the
Common Stock. The Company shall include all information provided by ILLES
pursuant hereto in the registration statement, substantially in the form
supplied, except to the extent such information is not permitted by law. ILLES
understands and agrees that ILLES will be listed and disclosed in the
registration statement as an underwriter of the Common Stock as such term is
defined in Section 2(a)(11) of the Act and as such ILLES will have liability,
among other things, under Section 11 of the Act.
8
All
expenses (other than commissions and fees and expenses of counsel to ILLES)
incurred in connection with the registration statement, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, shall be
borne by the Company.
8.
Binding
Effect.
This
Agreement shall be binding upon the party’s respective heirs, personal
representatives, successors and assigns; provided, however, that this Agreement
shall not be assignable by ILLES, in whole or in part, without the prior consent
of the USA.
9. Indemnification.
In the
event any shares of Common Stock are included in a registration statement under
this Agreement:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless ILLES,
against any losses, claims, damages, or liabilities to which ILLES may become
subject under the Act, the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)(or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements or omissions: (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, and the
Company will reimburse ILLES for any legal or other expenses reasonably incurred
by ILLES in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 9(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for
any
such loss, claim, damage, liability, or action to the extent that it arises
out
of or is based upon a violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by ILLES; provided however, that the above shall not relieve the
Company from any other liabilities which it might otherwise have.
9
(b)
ILLES
shall indemnify and hold harmless the Company, its directors and officers,
each
underwriter and each other person, if any, who controls (within the meaning
of
the Act) the Company or such other indemnified party, against any liability,
joint or several, to which any such indemnified party may become subject under
the Act or any other statute or at common law, insofar as such liability (or
actions in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which securities
were registered under the Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or (ii) any omission
or alleged omission by ILLES to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, amendment or supplement thereto
in
reliance upon and in conformity with information furnished in writing to the
Company by ILLES specifically for use therein. ILLES shall reimburse any
indemnified party for any legal fees incurred in investigating or defending
any
such liability.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 9, deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the right
to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume, the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the reasonably incurred fees and expenses of one such counsel to be paid by
the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential conflicting interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability
to
the indemnified party under this Section 9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
9.
10
(d) In
the
event that the indemnity provided in paragraphs (a) and/or (b) of this Section
9
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, the Company and ILLES agree to contribute to the aggregate claims,
losses, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
“Losses”) to which the Company and ILLES may be subject in such proportion as is
appropriate to reflect the relative fault of the Company and ILLES in connection
with the statements or omissions which resulted in such Losses. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by ILLES. The Company
and ILLES agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation that does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each director and officer of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The
obligations of the Company and ILLES under this Section 9 shall survive the
resale, if any, of the Common Stock in a registration statement under this
Agreement, and otherwise.
11
10.
Applicable
Law.
This
Agreement shall be deemed to be a contract made under the laws of the
Commonwealth of Pennsylvania and for all purposes shall be construed in
accordance with the laws thereof regardless of its choice of law
rules.
11. Brokers
and Finders.
USA and
ILLES hereby represent to each other that no broker or finder has been employed
or engaged by either of them in connection with the transactions contemplated
in
this Agreement and that all negotiations relative to this Agreement have been
carried on directly between the parties hereto without the intervention of
any
other person.
12. Survival
of Representations and Warranties, and Remedies.
All
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement.
13. Entire
Agreement. This
Agreement constitutes the entire understanding and agreement between the parties
hereto with respect to the transactions contemplated herein, supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there have been no
warranties, representations or promises, written or oral, made by any of the
parties hereto except as herein expressly set forth herein. The parties have
previously entered into a 2006 Common Stock Purchase Agreement dated February
17, 2006, and USA acknowledges and agrees that except for the 401,975 shares
of
Common Stock currently covered by the Registration Statement on Form S-1 (File
No. 333-132019), USA shall not require ILLES to purchase from USA, and ILLES
shall not purchase from USA, any additional shares of Common Stock thereunder.
14. Waiver,
Modification, etc..
Any
party to this Agreement may waive any of the terms or conditions of this
Agreement or agree to an amendment or modification to this Agreement by an
agreement in writing executed in the same manner (but not necessarily by the
same persons) as this Agreement. No amendment or modification of this Agreement
shall be binding unless in writing executed by all of the parties to this
Agreement. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall any waiver constitute
a
continuing waiver unless otherwise expressly provided.
12
15.
Notice.
Any
notice or other communications required or permitted hereunder shall be
sufficiently given: (i) three (3) business days after if sent by certified
mail,
return receipt requested, postage prepaid, or (ii) one (1) business day after
sent by Federal Express or other overnight courier providing delivery
confirmation for next business day delivery, or (ii) when delivered by personal
delivery, telecopier, or e-mail, in any event delivered to or addressed as
follows:
If
to
ILLES:
Xx.
Xxxxx
Xxxxx
0000
Xxxxxxxxx 000xx
Xxxxxxx
Xxxx
Xxxxxxxx,
Xxxxxxx 00000
If
to
USA:
USA
Technologies, Inc.
Xxxxx
000
000
Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxx, Xx., Chief
Executive
Officer
16. Consent
to Jurisdiction.
Each of
USA and ILLES irrevocably consents and agrees that any legal action or
proceeding whatsoever arising out of or in any way connected with this Agreement
or the transactions contemplated hereby may be commenced, filed, instituted
or
brought in the state or federal courts of the Commonwealth of Pennsylvania,
and
each of the parties hereto irrevocably submits and accepts with regard to any
such legal action or proceeding to the jurisdiction of such courts. Each of
the
parties irrevocably consents to service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the parties hereto,
such service to become effective upon mailing. Each of the parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any objection which
any of them may now or hereafter have to the laying of the venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, brought in such Pennsylvania courts, and
hereby further irrevocably waives any claim, that any such suit, action or
proceeding brought in such courts, has been brought in an inconvenient forum.
13
17.
Counterparts.
This
Agreement may be signed in two or more counterparts which counterparts shall
constitute a single, integrated agreement binding upon all the signatories
to
such counterparts. Delivery of an executed counterpart of this Agreement by
facsimile shall be equally as effective as delivery of a manually executed
counterpart of this Agreement.
18.
Expenses.
Except
as specifically provided otherwise herein, each party hereto shall pay its
or
his own expenses arising from this Agreement and the transactions contemplated
hereby, including, without limitation, all legal and accounting fees and
disbursements; provided, however, that nothing herein shall limit or otherwise
modify any right of the parties to recover such expenses (including legal fees
and costs of litigation) from the other in the event any party hereto breaches
this Agreement.
19.
Further
Assurances.
Each of
the parties hereto shall hereafter execute and deliver such further documents
and instruments and do such further acts and things as may be required or useful
to carry out the intent and purpose of this Agreement and as are not
inconsistent with the terms hereof.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this 2006-B
Common Stock Purchase Agreement on the date first written above.
| USA TECHNOLOGIES, INC. | ||
| |
|
|
| /s/ XXXXX XXXXX | By: | /s/ XXXXXX X. XXXXXX, XX. |
|
XXXXX
XXXXX
|
Xxxxxx
X. Xxxxxx, Xx.,
Chief
Executive Officer
|
|
14
Xx.
Xxxxx
Xxxxx
0000
Xxxxxxxxx 000xx
Xxxxxxx
Xxxx
Xxxxxxxx,
Xxxxxxx 00000
COMMITMENT
TO PURCHASE
Pursuant
to the 2006-B Common Stock Purchase Agreement between USA and ILLES, USA hereby
irrevocably elects to require ILLES to purchase
shares
of Common Stock provided for therein at the price of ___ per share, or an
aggregate of $_________, for ____________ shares of Common Stock. Pursuant
to
the Agreement, ILLES shall deliver the purchase price for the shares within
seven business days. The certificate representing such shares of Common Stock
shall be issued to and registered in the name of, and delivered to, the ILLES
at
the address set forth in the Agreement.
| Dated: ______, 200__ | USA TECHNOLOGIES, INC. | |
| |
|
|
| By: | ||
|
Title:
|
||
15
