Exhibit 10.4.3
FOURTH AMENDMENT TO EMPLOYMENT AND
NON-COMPETITION AGREEMENT
This Fourth Amendment is made as of the 15th day of April 2002, by and
between HAVEN XXXXX XXXXX, XX. ("Xxxxx"), and USA TECHNOLOGIES, INC., a
Pennsylvania corporation ("USA").
Background
USA and Xxxxx entered into an Employment And Non-Competition Agreement
dated May 1, 1994, a First Amendment thereto dated May 1, 1995, a Second
Amendment thereto dated March 20, 1996, and a Third Amendment thereto dated
February 22, 2000 (collectively, the "Agreement"). As more fully set forth
herein, the parties desire to amend the Agreement in certain respects.
Agreement
NOW, THEREFORE, in consideration of the covenants set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Amendments.
A. Subparagraph (a) of Section 1. Employment of the Agreement is hereby
deleted and the following new subparagraph (a) is hereby substituted in its
place:
(a) USA shall employ Xxxxx as Senior Vice
President, Research & Development, commencing on the
date hereof and continuing through June 30, 2004 (the
"Employment Period") and Xxxxx 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
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
Xxxxx a base salary of $150,000 per year during the
Employment Period, subject to any withholding
required by law. Xxxxx"s base salary may be increased
from time to time in the discretion of the Board of
Directors.
C. The following new subparagraphs (v), (vi) and (vii) are added to
Subparagraph (b) of Section 2. Compensation and Benefits of the Agreement:
(v) On April 15, 2002, USA shall issue to Xxxxx 200,000 shares of fully vested
Common Stock as a bonus. Xxxxx 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 200,000
shares at $.40 per share which were granted to Xxxxx by USA in November 2001
(and which became vested in March 2002). These options shall be canceled upon
the issuance to Xxxxx by USA of the shares without any payment by Xxxxx to USA.
(vi) USA shall pay to Xxxxx the sum of $50,000 in cash in order to reimburse
Xxxxx 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 Xxxxx 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, Xxxxx may elect
to receive shares of Common Stock or other securities of USA having a value
equal to such cash payment.
(vii) Effective April 15, 2002, USA shall issue to Xxxxx fully vested options to
purchase up to 50,000 shares of Common Stock. Each option shall be exercisable
at $.40 per share. The options shall be exercisable at any time on or before
April 15, 2005 and shall have a cashless exercise feature. Xxxxx acknowledges
that all of the foregoing options are non-qualified stock options and not part
of a qualified stock option plan and do not constitute incentive stock options
as such term is defined under Section 422 of the Internal Revenue Code of 1986,
as amended, and are not part of an employee stock purchase plan as defined in
Section 423 thereunder. Xxxxx acknowledges that neither the options nor the
Common Stock underlying the options has been registered under the Act or under
any state securities law, and can not be sold or transferred unless such options
or 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 the shares of Common Stock underlying the options for resale
under the Act, and shall use its best efforts to have such registration
statement declared effective and to remain current and effective.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the day and year first above written.
USA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
President
/s/ Haven Xxxxx Xxxxx, Xx.
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HAVEN XXXXX XXXXX, XX.
