Exhibit 4.28
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made this 23rd day of
September 2003, by and between USA TECHNOLOGIES, INC., a Pennsylvania
corporation ("USA" or "Company"), and the buyers identified on the signature
pages hereto and detailed on the attached Schedule A (each, a "Buyer",
collectively, the "Buyers").
Background
As more fully set forth herein, the Buyers have agreed to purchase from
the Company 18,000,000 shares of Common Stock of USA (the "Securities") for $.25
per share, for an aggregate of $4,500,000 ("Purchase Price").
Agreement
NOW THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Subscription. The Buyers hereby purchase the Securities from the
Company and the Company hereby sells and issues the Securities to the Buyers. In
full payment for the Securities, the Buyers have delivered to USA, upon receipt
of the Securities, a check payable to USA or wire transfer of immediately
available funds in the amount, in the aggregate, of $4,500,000. USA has
delivered to each Buyer a certificate representing the Buyer's interest as
detailed on the attached Schedule A in the 18,000,000 shares of USA Common Stock
duly registered in the name of each respective Buyer.
No later than thirty days after the date hereof, USA shall at its cost
and expense prepare and file a Registration Statement filed on Form S-3
("Registration Statement") with the Securities and Exchange Commission ("SEC")
registering all of the Securities for resale by the holder under the Securities
Act of 1933, as amended ("33 Act"). In the event that Form S-3 is unavailable
and/or inappropriate for such a registration, the Company shall use such other
form as is available and appropriate for such a registration. The Registration
Statement shall be prepared as a "shelf" Registration Statement under Rule 415.
Thereafter, the Company will use its best efforts to have the Registration
Statement declared effective by the SEC within ninety days from the date hereof.
The Company shall use its best efforts to have the Registration Statement
maintained effective until the earlier of (i) one year from the effective date
thereof, or (ii) the date that all of the Securities are resold pursuant to the
Registration Statement or otherwise.
In the event that the Registration Statement to be filed by the Company
is not declared effective by the SEC within ninety days from the date hereof,
then the Company will pay each Buyer as liquidated damages for such failure and
not as a penalty three percent (3%) of the Purchase Price ("Liquidated Damages
Amount"). Such payment of the liquidated damages shall be made to each Buyer in
cash, within five (5) calendar days of demand; provided, however, that the
payment of such liquidated damages shall not relieve the Company from its
obligations to register the Securities pursuant to this Agreement.
52
2. Verification of Status as "Accredited Investor". Each Buyer hereby
represents to USA that it qualifies as an "accredited investor" as such term is
defined in Rule 501 promulgated under the 33 Act, with total assets in excess of
$5,000,000. Each Buyer hereby represents that it is not a corporation or
partnership formed for the specific purpose of acquiring the Securities.
3. Representations And Warranties of the Company. The Company hereby
makes the following representations and warranties to the Buyers:
(a) Issuance of Securities. The issuance of the Securities has
been duly authorized by USA, and the Securities are validly issued, fully paid
and non-assessable.
(b) Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, with all requisite power, authority and licensing
to own, operate and lease its properties and carry on its business as now being
conducted.
(c) Authority. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to carry out the transactions contemplated hereby.
4. Representations by Buyer. Each Buyer represents and warrants to the
Company as follows:
(a) Each Buyer has received, read and understands the
provisions of each of the following: (i) the Company's Annual Report on
Form 10-KSB for the fiscal year ended June 30, 2002; (ii) the Company's
Quarterly Report on Form 10-QSB for the quarter ended September 30,
2002; (iii) the Company's Quarterly Report on Form 10-QSB for the
quarter ended December 31, 2002; (iv) the Company's Quarterly Report on
Form 10-QSB for the quarter ended March 31, 2003; (v)the Company's
Registration Statement on Form SB-2 (File No. 333-101032) filed on
November 6, 2002 with the SEC (as well as the first amendment thereto
filed with the SEC on April 17, 2003 and the second amendment thereto
filed with the SEC on August 5, 2003); (vi) the Company's Registration
Statement on Form SB-2 (File No. 333-107800) filed on August 8, 2003
with the SEC; (vii) the definitive proxy statement of the Company filed
with the SEC on June 11, 2003; and (viii) the Risk Factors section
incorporated by reference herein in Section 4(f) hereof. Each Buyer
understands that all of the foregoing together with this Agreement
shall be referred to herein as "Offering Materials".
(b) Each Buyer has relied only upon the information presented
and contained in the Offering Materials. Each Buyer has had the
opportunity to ask of the person or persons acting on behalf of the
53
Company any and all relevant questions in connection with any aspect of
the Company including, but not limited to, the Securities offered by
the Offering Materials and has received answers which it considers to
be reasonably responsive to such questions. Each Buyer has had the
opportunity to verify the accuracy of the information contained in the
Offering Materials.
(c) Each Buyer understands that it is subscribing for the
Securities without being furnished any literature or prospectus in
connection with the offering of the Securities other than the Offering
Materials, and that the offering of the Securities presented in the
Offering Materials will not have been scrutinized by the securities
administrator or similar bureau, agency, or department of the state of
its residence.
(d) Each Buyer understands (i) that the Securities have not
been registered under the 33 Act or registered or qualified under the
securities laws of the state of domicile of such Buyer; (ii) that
except as otherwise provided herein, such Buyer has no right to require
such registration or qualification; and (iii) that therefore such Buyer
must bear the economic risk of the investment for an indefinite period
of time because the Securities may not 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 Securities 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, the
Securities would not be registered for resale under the 33 Act, and
could only be sold by the holder in reliance upon exemptions from
registration under the 33 Act.
(e) Subject to being resold pursuant to an effective
registration statement, the Securities are being purchased for each
Buyer's own account for investment purposes only and not for the
interest of any other person and are not being purchased with a view to
or for the resale, distribution, subdivision or fractionalization
thereof. Although the Common Stock of USA is currently traded on the
OTC Bulletin Board under the symbol USTT, each Buyer also understands
that there may not be any established public trading market for the
sale of the Securities.
(f) Each Buyer recognizes that the purchase of the Securities
involves a high degree of risk including those special risks set forth
under the caption "Risk Factors" and "Forward Looking Statements" in
the Form SB-2 Registration Statement of the Company (File No.
333-107800) filed with the SEC on August 8, 2003, all of which are
incorporated herein by reference.
(g) Subject to the registration rights set forth above, each
Buyer understands that its right to transfer the Securities will be
restricted as set forth on the stock certificates. Such restrictions
include provisions against transfer unless such transfer is not in
violation of the 33 Act, or applicable state securities laws (including
investor suitability standards). Each Buyer is familiar with Regulation
M promulgated under the 33 Act and agrees to comply with its
obligations thereunder.
54
(h) All information which the Buyers have provided to the
Company including, but not limited to, its tax identification number,
its financial position, and status as an accredited investor, and its
knowledge of financial and business matters is true, correct and
complete as of the date of execution of this Agreement. Each Buyer
understands that USA will rely in a material degree upon the
representations contained herein.
(i) Each Buyer maintains a principal place of business at the
address shown on the attached schedule A of this Agreement, at which
address each Buyer has subscribed for the Securities.
(j) Each Buyer understands that legends may be placed on any
certificate representing the Securities 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.
(k) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby has been duly
authorized by each Buyer.
5. Survival of Representations, Warranties, Covenants, Agreements and
Remedies. Except as specifically provided otherwise herein, all representations,
warranties, covenants, agreements and remedies of the parties hereto, shall
survive the date hereof.
6. 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.
7. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, as well as their respective heirs, personal
representatives, successors and assigns but no party may assign its obligations
hereunder. The undersigned, Wellington Management Company, LLP, represents and
warrants to USA that it has the full and complete authority to execute and
deliver this Agreement on behalf of each Buyer and to make each of the
representations, warranties and covenants contained in this Agreement on behalf
of each Buyer.
55
8. Pennsylvania Law Controls. This Agreement shall be construed in
accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania without regard to its conflicts of law rules.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the date first above written.
BUYER:
Wellington Management Company, LLP,
as investment adviser on behalf of the
accounts detailed in the attached
Schedule A
Witness: /s/ Xxxx Xx Xxxxx /s/ Xxxxxxx x. Xxxxxx
---------------------------- ---------------------------------
Xxxx Xx Xxxxx Xxxxxxx X. Xxxxxx
Assistant Vice President Vice President & Counsel
Address:
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
XXX TECHNOLOGIES, INC.
By: /s/Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxx, Xx.,
Chief Executive Officer
Schedule A
Client Account Legal Name: # Common Shares Purchase Price
Madeira Partners, L.P. 1,200,000 $300,000.00
Madeira Investors (Bermuda)L.P. 700,000 $175,000.00
Raytheon Technical Equity Hedge Portfolio
Raytheon Master Pension Trust 13,000,000 $3,250,000.00
WTC-CIF Technical
Equity Portfolio 3,100,000 $775,000.00
56
