EXHIBIT 10.9.2
SECOND AMENDMENT TO EMPLOYMENT AND
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NON-COMPETITION AGREEMENT
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This Second Amendment is made as of the 15th day of April 2002, by and
between XXXXXXX X. XXXXXXX ("Xxxxxxx"), and USA TECHNOLOGIES, INC., a
Pennsylvania corporation ("USA").
Background
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USA and Xxxxxxx entered into an Employment And Non-Competition Agreement
dated April 4, 1996 and a First Amendment thereto dated as of February 22, 2000
(collectively, the "Agreement"). As more fully set forth herein, the parties
desire to amend the Agreement in certain respects.
Agreement
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NOW, THEREFORE, in consideration of the covenants set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Amendments.
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A. Subparagraph (a) of Section 1. Employment of the Agreement is hereby
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deleted and the following new subparagraph (a) is hereby substituted in its
place:
(a) USA shall employ Xxxxxxx as President and Chief Operating Officer
commencing on the date hereof and continuing through June 30, 2004 (the
"Employment Period") and Xxxxxxx hereby accepts such employment. Unless
terminated by either party hereto upon at least 60-days notice prior to end
of the original Employment Period ending June 30, 2004, or prior to the end
of any one year extension of the Employment Period, the Employment Period
shall not be terminated and shall automatically continue in full force and
effect for consecutive one year periods.
B. Subparagraph (a) of Section 2. Compensation and Benefits of the
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Agreement is hereby deleted and the following new subparagraph (a) is hereby
substituted in its place:
A. In consideration of his services rendered, commencing April 15,
2002, USA shall pay to Xxxxxxx a base salary of $165,000 per year
during the Employment Period, subject to any withholding required by
law. Herberts base salary may be increased from time to time in the
discretion of the Board of Directors.
C. The following new subparagraphs (v) and (vi) are added to Subparagraph
(b) of Section 2. Compensation and Benefits of the Agreement:
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(v) On April 15, 2002, USA shall issue to Xxxxxxx 300,000 shares of
fully vested Common Stock as a bonus. Xxxxxxx acknowledges that the
Common Stock has not been registered under the Act or under any state
securities law, and the Common Stock can not be sold or transferred
unless such Common Stock has been registered under the Act or such
state securities laws, or unless USA has received an opinion of its
counsel that such registration is not required. Notwithstanding the
foregoing, USA shall at its cost and expense prepare and file a
registration statement with the Securities and Exchange Commission
covering these shares for resale under the Act, and shall use its best
efforts to have such registration statement declared effective and to
remain current and effective. These shares shall represent the shares
underlying the options to purchase up to 300,000 shares at $.40 per
share which were granted to Xxxxxxx by USA in November 2001 (and which
became vested in March 2002). These options shall be canceled upon the
issuance to Xxxxxxx by USA of the shares without any payment by
Xxxxxxx to USA.
(vi) USA shall pay to Xxxxxxx the sum of $80,000 in cash in order to
reimburse Xxxxxxx for the income tax payable by him as a result of the
shares of Common Stock delivered to him as a bonus during the 2001
calendar year. These monies shall be paid to Xxxxxxx as follows: up to
fifty percent on April 15, 2002, with the balance to be paid in six
equal consecutive monthly installments commencing May 2002. In the
alternative, and in lieu of any cash payment, Xxxxxxx may elect to
receive shares of Common Stock or other securities of USA having a
value equal to such cash payment.
2. Modification. Except as otherwise specifically set forth in Paragraph
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1, the Agreement shall not be amended or modified in any respect whatsoever and
shall continue in full force and effect.
3. Capitalized Terms. Except as specifically provided otherwise herein, all
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capitalized terms used herein shall have the meanings ascribed to them in the
Agreement.
4. Effective Time. The amendments to the Agreement made in Paragraph 1 hereof
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shall be effective from and after the date of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first above written.
USA TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxxx, Xx.
By:________________________
Xxxxxx X. Xxxxxx, Xx.,
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
