Exhibit 4.29
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made this 26th day of September 2003,
by and between USA TECHNOLOGIES, INC., a Pennsylvania corporation ("USA" or
"Company"), and XXXXXX X'XXXXXXX, an individual ("Buyer").
Background
As more fully set forth herein, Buyer has purchased from the Company
1,000,000 shares of Common Stock of USA (the "Securities") for $0.25 per share,
for an aggregate of $250,000 ("Purchase Price").
Agreement
NOW THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Subscription. Buyer hereby purchases the Securities from the Company
and the Company hereby sells and issues the Securities to Buyer. In full payment
for the Securities, Buyer has delivered to USA a check payable to USA or wire
transfer of immediately available funds in the amount of $250,000. USA has
delivered to Buyer a certificate representing 1,000,000 shares of USA Common
Stock duly registered in the name of 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.
2. Verification of Status as "Accredited Investor". Buyer hereby
represents to USA that he qualifies as an "accredited investor" as such term is
defined in Rule 501 promulgated under the Act because Buyer has an individual
net worth, or joint net worth with his spouse, if married, in excess of
$1,000,000.
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3. Representations And Warranties of the Company. The Company hereby
makes the following representations and warranties to Buyer:
(a) Issuance of Securities. The issuance of the Securities has
been duly authorized by USA, and 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. Buyer represents and warrants to the
Company as follows:
(a) 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, 2003; (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. 333-1070800) 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. Buyer understands that
all of the foregoing together with this Subscription Agreement
shall be referred to herein as "Offering Materials".
(b) Buyer has relied only upon the information presented and
contained in the Offering Materials. Buyer 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 Securities offered
by the Offering Materials and has received answers which he
considers to be reasonably responsive to such questions. Buyer has
had the opportunity to verify the accuracy of the information
contained in the Offering Materials.
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(c) Buyer understands that he 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 his residence.
(d) Buyer understands (i) that the Securities have not been
registered under the Act or registered or qualified under the
securities laws of the state of domicile of Buyer; (ii) Buyer has
no right to require such registration or qualification; and (iii)
that therefore 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) The Securities are being purchased for 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, Buyer also understands that
there may not be any established public trading market for the
sale of the Securities.
(f) 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 Securities and Exchange Commission on
August 8, 2003, all of which are incorporated herein by reference.
(g) Buyer understands that his 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 Act, or applicable state
securities laws (including investor suitability standards). Buyer
is familiar with Regulation M promulgated under the Act and agrees
to comply with his obligations thereunder.
(h) All information which Buyer has provided to the Company
including, but not limited to, his social security number, his
financial position, and status as an accredited investor, and his
knowledge of financial and business matters is true, correct and
complete as of the date of execution of this Stock Purchase
Agreement. Buyer understands that USA will rely in a material
degree upon the representations contained herein.
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(i) Buyer maintains his principal domicile at the address shown on
the signature page of this Stock Purchase Agreement, at which
address Buyer has subscribed for the Shares.
(j) 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 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.
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
Stock Purchase Agreement the date first above written.
BUYER:
Witness:_________________ /s/ Xxxxxx X'Xxxxxxx
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XXXXXX X'XXXXXXX
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Address:
00000 Xxxxxx Xxxxx
Xxxxxx Xxxxx Xxxxxxxxx
XX 00000
Social Security Number:
***-**-****
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USA TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.,
Chief Executive Officer
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