EXHIBIT 10.21.4
FOURTH AMENDMENT TO EMPLOYMENT AND
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NON-COMPETITION AGREEMENT
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This Fourth Amendment is made as of the 15th day of April 2002, by and
between XXXXXX X. XXXXXX, XX. ("Xxxxxx"), and USA TECHNOLOGIES, INC., a
Pennsylvania corporation ("USA").
Background
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USA and Xxxxxx entered into an Employment And Non-Competition Agreement
dated November 20, 1997, a First Amendment thereto dated June 17, 1999, a Second
Amendment thereto dated February 22, 2000, and a Third Amendment thereto dated
January 16, 2002 (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 Xxxxxx as Chairman and Chief Executive Officer
commencing on the date hereof and continuing through June 30, 2004 (the
"Employment Period") and Xxxxxx 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 Xxxxxx a base salary of $180,000 per year during the
Employment Period, subject to any withholding required by law. Jensens 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 Xxxxxx 320,000 shares of
fully vested Common Stock as a bonus. Xxxxxx 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 320,000 shares at $.40
per share which were granted to Xxxxxx by USA in November 2001 (and which
became vested in March 2002). These options shall be canceled upon the
issuance to Xxxxxx by USA of the shares with no payment by Xxxxxx to USA.
(vi) USA shall pay to Xxxxxx the sum of $80,000 in cash in order to
reimburse Xxxxxx 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 Xxxxxx 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, Xxxxxx 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 Fourth Amendment
as of the day and year first above written.
USA TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxxx
By: ______________________
Xxxxxxx X. Xxxxxxx,
President
/s/ Xxxxxx X. Xxxxxx, Xx.
___________________________
XXXXXX X. XXXXXX, XX.
