EMPLOYMENT AND NON-COMPETITION AGREEMENT

EXHIBIT 10.1

AMENDED AND RESTATED

Agreement made this 30th day of November, 2011, by and between XXXXXXX X. XXXXXXX, an individual ("Xxxxxxx"), and USA TECHNOLOGIES, INC., a Pennsylvania corporation ("USA").

BACKGROUND

Xxxxxxx was appointed as the interim Chairman and Chief Executive Officer of USA on October 5, 2011, and has been the President and Chief Operating Officer of USA since 1996. Xxxxxxx and USA had entered into an Amended and Restated Employment and Non-Competition Agreement dated September 29, 2009, a First Amendment thereto dated April 14, 2011, and a Second Amendment thereto dated September 27, 2011. As more fully set forth herein, the parties desire to amend, completely restate, and replace the foregoing agreements effective as of the date hereof.

AGREEMENT

NOW, THEREFORE, in consideration of the covenants set forth herein, and intending to be legally bound hereby, the parties agree as follows:

SECTION 1. Employment.

A. USA shall employ Xxxxxxx as Chairman of the Board of Directors, Chief Executive Officer, and President commencing on November 29, 2011 and continuing through January 1, 2013 (the "Employment Period"), and Xxxxxxx hereby accepts such employment. Unless terminated by either party hereto upon at least 90-days notice prior to end of the original Employment Period ending January 1, 2013, 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. During the Employment Period, Xxxxxxx shall devote his full time, energy, skills, and attention to the business of USA, and shall not be engaged or employed in any other business activity whatsoever, whether or not such activity is pursued for gain, profit or other pecuniary advantage. During the Employment Period, Xxxxxxx shall perform and discharge well and faithfully such executive management duties for USA as shall be necessary and as otherwise may be directed by the Board of Directors of USA.

C. Nothing contained in subparagraph 1.B hereof shall prohibit Xxxxxxx from investing his personal assets in businesses which do not compete with USA, where the form or manner of such investments will not require more than minimal services on the part of Xxxxxxx in the operation of the affairs of the business in which such investments are made, or in which his participation is solely that of a passive investor; or from serving as a member of boards of directors, boards of trustees, or other governing bodies of any organization, provided that USA approves such activities in advance; or from participating in trade associations, charitable, civic and any similar activities of a not-for-profit, philanthropic or eleemosynary nature; or from attending educational events or classes. It is understood and agreed that any such permitted activities which shall occur during business hours shall be limited to no greater than forty hours per year.

SECTION 2. Compensation and Benefits

A. In consideration of his services rendered, USA shall pay to Xxxxxxx a base salary of $341,227 per year during the Employment Period, subject to any withholding required by law. Herbert's base salary may be increased from time to time in the discretion of the Board of Directors.

B. In addition to the base salary provided for in subparagraph A, Xxxxxxx shall be eligible to receive such bonus or bonuses as the Board of Directors of USA may, in their discretion, pay to Xxxxxxx from time to time based upon his performance and/or the performance of USA. All awards in this regard may be made in cash or in common stock of USA.

X. Xxxxxxx shall be entitled to be reimbursed by USA for all reasonable expenses reasonably incurred by Xxxxxxx in connection with his employment duties hereunder. Such expenses shall include, but not be limited to, all reasonable business expenses, including travel expenses such as tolls, gasoline and mileage. Xxxxxxx shall reasonably document all requests for expense reimbursements.

D. On September 15, 2011, the Board of Directors approved the adoption of the Fiscal Year 2012 Performance Share Plan (the “2012 Plan”) pursuant to which, among other things, Xxxxxxx would be awarded common stock of USA in the event that USA achieves certain target goals during the fiscal year ending June 30, 2012 (the “Fiscal Year”) relating to the total number of connections, total revenues, operating expenses, and operating earnings. If USA shall achieve all of the minimum threshold performance target goals under the 2012 Plan during the Fiscal Year, and in addition to any other benefits otherwise payable to Xxxxxxx under the 2012 Plan, Xxxxxxx shall receive a cash bonus in the amount of $30,000. If USA shall achieve all of the target performance goals under the 2012 Plan during the Fiscal Year, and in addition to any other benefits otherwise payable to Xxxxxxx under the 2012 Plan, Xxxxxxx shall receive a cash bonus in the amount of $50,000. If USA shall achieve all of the maximum distinguished performance target goals under the 2012 Plan during the Fiscal Year, and in addition to any other benefits otherwise payable to Xxxxxxx under the 2012 Plan, Xxxxxxx shall receive a cash bonus in the amount of $75,000. Any cash bonus paid to Xxxxxxx under this subsection D. shall be subject to applicable withholding required by law.

In the event of the occurrence of a USA Transaction during the Fiscal Year, and provided that Xxxxxxx is an employee of USA on the date of such USA Transaction, Xxxxxxx shall be entitled to receive on the date of the USA Transaction a cash bonus under this subsection D. in the amount of $50,000 as if USA had achieved all of the target performance goals under the 2012 Plan during the Fiscal Year. In the event that Herbert’s employment with USA would be terminated by USA during the Fiscal Year for Cause (as defined in Section 3), or if Xxxxxxx would resign his employment with USA during the Fiscal Year for any reason other than for Good Reason (as defined in Section 3), then Xxxxxxx would not be entitled to receive any cash bonus under this subsection D. In the event that Herbert’s employment with USA would be terminated by USA during the Fiscal Year for any reason whatsoever other than for Cause (as defined in Section 3), or if Herbert’s employment with USA would be terminated by Xxxxxxx during the Fiscal Year for Good Reason (as defined in Section 3), then Xxxxxxx shall be entitled to receive on the date of such termination a cash bonus under this subsection D. in the amount of $50,000 as if USA had achieved all of the target performance goals under the 2012 Plan during the Fiscal Year. If Herbert’s employment with USA would be terminated during the Fiscal Year as a result of death or disability, then Xxxxxxx would nevertheless be eligible to earn a cash bonus under the provisions of the first paragraph of this subsection D. as if he had remained employed with USA through the end of the Fiscal Year.

E. During the Employment Period, USA shall obtain and pay the premiums for, a term life insurance policy on Herbert’s life in the face amount of $1,500,000. During the Employment Period, Xxxxxxx shall designate the beneficiary of the policy. If Xxxxxxx shall die during the Employment Period, the proceeds of the policy shall be paid to his designated beneficiary. Xxxxxxx agrees to cooperate with the insurance company and USA in connection with the issuance of the policy. Xxxxxxx agrees that he will submit to examinations by such practicing medical doctors selected by USA or the insurance company upon receipt of written request from USA or the insurance company to do so.

F. During the Employment Period, and in addition to the other benefits provided to Xxxxxxx hereunder, Xxxxxxx shall be entitled to participate in and be covered by all standard fringe and employee benefits made available to other employees of USA. These current benefits include medical and dental insurance, paid vacation and holidays, a 401(k) plan, and a long-term group disability plan.

SECTION 3. Termination. In addition to the notice of non-renewal of the Employment Period referred to in Section 1.A hereof and as provided in Section 11.B, Herbert’s employment with USA may be terminated as follows:

A. Voluntary Termination Without Good Reason. Xxxxxxx may voluntarily terminate Herbert’s employment hereunder without Good Reason (as defined below) at any time during the Employment Period effective as of the end of the 90-day period beginning on the date Xxxxxxx provides USA with a signed, written notice of Herbert’s termination; provided, in its sole discretion (i) USA may accept such resignation effective as of an earlier date in lieu of waiting for passage of the 90-day notice period, or (ii) during all or any part of the 90-day notice period, USA may retain Xxxxxxx as an employee but modify, reduce or eliminate Herbert’s duties hereunder. If Xxxxxxx voluntarily terminates Herbert’s employment hereunder without Good Reason, USA will pay to Xxxxxxx only (i) Herbert’s annual base salary earned through the date of termination, (ii) all bonuses earned and vested on or before the date of termination, and (iii) any benefits or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

B. Voluntary Termination With Good Reason.

(i) Xxxxxxx may voluntarily terminate Herbert’s employment hereunder with Good Reason (as defined below) at any time during the Employment Period, effective as of the end of the 90-day period beginning on the date Xxxxxxx provides USA with a signed, written notice of Herbert’s termination; provided, in its sole discretion (A) USA may accept such resignation effective as of an earlier date in lieu of waiting for passage of the 90-day notice period, or (B) during all or any part of the 90-day notice period, USA may retain Xxxxxxx as an employee but modify, reduce or eliminate Herbert’s duties hereunder.

(ii) If Xxxxxxx voluntarily terminates Herbert’s employment hereunder with Good Reason at any time during the Employment Period, Xxxxxxx will be entitled to receive the following compensation and benefits:

(a)	On or before the termination of Herbert’s employment, USA shall pay to Xxxxxxx a lump sum equal to two years of his base salary at the time of the termination date;

(b)	all bonuses earned or vested on or before the date of termination;

(c)	all restricted stock awards and stock options shall become immediately vested on the date of termination; and

(d)	any other benefit or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

(iii) For purposes of this Agreement, “Good Reason” means any of the following conditions, which remains uncured after the expiration of 30 days following the delivery of written notice of such condition to USA by Xxxxxxx, with respect to which Xxxxxxx terminates employment within 120 days after the initial existence of the condition: (A) a material breach of the terms of this Agreement by USA; (B) the assignment by USA to Xxxxxxx of duties in any way materially inconsistent with Herbert’s authorities, duties, responsibilities, and status, as Chief Executive Officer of USA, or a material reduction or alteration in the nature or status of Herbert’s authority, duties, or responsibilities as Chief Executive Officer; provided, however, that a material reduction or alteration referred to in this subsection (B) shall not include any change or reduction in Herbert’s authorities, duties or responsibilities resulting solely from USA becoming a private company or a subsidiary or division of another company; (C) USA reduces Herbert’s annual base salary; (D) any reduction by USA in the kind or level of employee benefits to which Xxxxxxx is entitled immediately prior to such reduction with the result that Herbert’s overall benefit package is significantly reduced unless such failure to continue a plan, policy, practice or arrangement pertains to all plan participants generally; or (E) requiring Xxxxxxx to be based at a location in excess of 50 miles from Herbert’s current residence. For the avoidance of doubt, Good Reason shall not include or mean if at any time in the future, the office of the Chairman of the Board of Directors of USA is held by an individual other than Xxxxxxx.

(iv) As a condition to Xxxxxxx receiving or continuing to receive any of the payments or benefits provided under this subsection B, Xxxxxxx shall have executed and delivered to USA (and not revoked) a release of any and all claims, suits, or causes of action against USA and its affiliates in form reasonably acceptable to USA.

C. Termination Without Cause.

(i) USA, in its sole discretion, may terminate Herbert’s employment hereunder without Cause (as defined below), at any time by giving Xxxxxxx at least 30 days’ (and not more than 90 days’) prior written notice of USA’s intent to terminate Herbert’s employment as of a specified date; provided, during all or any part of the remaining Employment Period, USA, in its sole discretion, may modify, reduce or eliminate Herbert’s duties hereunder.

(ii) If USA terminates Herbert’s employment hereunder without Cause at any time during the Employment Period, or if Herbert’s employment is terminated upon the expiration of the Employment Period as a result of USA providing a notice of non-renewal to Xxxxxxx pursuant to Section 1.A hereof, Xxxxxxx will be entitled to receive the following compensation and benefits:

(a)	On or before the termination of Herbert’s employment, USA shall pay to Xxxxxxx a lump sum equal to two years of his base salary at the time of the termination date;

(b)	all bonuses earned or vested on or before the date of termination;

(c)	All restricted stock awards or stock options shall become immediately vested on the date of termination; and

(d)	any other benefit or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

D. Termination With Cause.

(i) USA may immediately terminate Herbert’s employment hereunder for Cause (as defined below) at any time during the Employment Period upon delivery of written notice to Xxxxxxx.

(ii) If USA terminates Herbert’s employment hereunder with Cause at any time during the Employment Period, Xxxxxxx will only be entitled to receive the following compensation and benefits:

(a)	On or before the termination of Herbert’s employment, USA shall pay Xxxxxxx his base salary through the date of termination;

(b)	all bonuses earned or vested on or before the date of termination; and

(c)	any other benefit or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

(iii) For purposes of this Agreement, “Cause” means any of the following have occurred or exist as determined by the USA Board of Directors (or its designee): (A) Herbert’s fraud, gross malfeasance, or willful misconduct, with respect to USA’s business; (B) any material breach by Xxxxxxx of this Agreement, which breach is not cured (if curable) by Xxxxxxx within thirty (30) days after written notice of such breach is delivered to Xxxxxxx by USA; (C) any willful violation by Xxxxxxx of any law, rule or regulation, which violation results or could reasonably be expected to result, in material harm to the business or reputation of USA; (D) conviction of or the entry of a guilty plea or plea of no contest to any felony or to any other crime involving moral turpitude; or (E) any intentional misapplication by Xxxxxxx of USA’s funds, or any material act of dishonesty committed by Xxxxxxx.

E. Termination Due to Death or Disability.

(i) Herbert’s employment with USA will end upon Herbert’s death. Upon Herbert’s death, his designated beneficiary shall be entitled to receive the proceeds of the life insurance policy paid for by USA that is referred to in Section 2.E, and USA will pay to Herbert’s personal representative only (A) Herbert’s annual base salary earned through the date of death, (B) all bonuses earned and vested on or before the date of death, and (C) any benefit or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

(ii) If Xxxxxxx becomes disabled during the Employment Period, USA may terminate Herbert’s employment under this Agreement upon giving Xxxxxxx or Xxxxxxx’x legal representative written notice upon the expiration of or at any time following the ninety (90) day period referred to in the next sentence and at least 30 days before the termination date. For purposes of this Agreement, “disabled” means if USA shall determine in good faith that Xxxxxxx is incapacitated by accident, sickness or otherwise so as to render him mentally or physically incapable of performing the services required of him hereunder for an aggregate of ninety (90) consecutive days, and USA shall be entitled to rely upon the advice and opinion of any physician of its choosing in making any determination with respect to any such disability. If Herbert’s employment hereunder is terminated due to Herbert’s disability, USA will pay to Xxxxxxx or his personal representative only (A) Herbert’s annual base salary earned through the date of termination, (B) all bonuses earned and vested on or before the date of termination, and (C) any benefit or compensation provided under the terms of any benefit plan or other provisions of this Agreement.

F. In addition to any other terms or conditions that survive the termination of Herbert’s employment with USA, all of the terms and conditions of Sections 4, 5 and 6 shall survive the termination of Herbert’s employment with USA for any reason whatsoever, including under this Section 3.

G. Except as specifically provided otherwise herein, Xxxxxxx shall not be required to mitigate the amount of any payment provided for in this Section 3 by seeking other employment or otherwise, nor shall the amount of such payment be reduced by reason of compensation or other income Xxxxxxx receives for services rendered after Herbert’s termination of employment with USA.

SECTION 4. Business Secrets.

A. Except in connection with his duties hereunder, Xxxxxxx shall not, directly or indirectly, at any time from and after the date hereof, and whether or not the Employment Period has terminated, or whether or not Herbert’s employment has terminated for any reason whatsoever, make any use of, exploit, disclose, or divulge to any other person, firm or corporation, any confidential information, including but not limited to, proprietary information, trade secret, business secret, documents, process, procedures, know-how, data, marketing information, marketing method, marketing means, software information, intellectual property, special arrangement, or any other confidential information concerning the business or policies of USA, or concerning USA’s customers, clients, accounts or suppliers, that Xxxxxxx learned as a result of, in connection with, through his employment with, or through his affiliation with USA, whether or not pursuant to this Agreement, and whether prior to or after the date hereof, but not information that can be shown through documentary evidence to be in the public domain, or information that falls into the public domain, unless such information falls into the public domain by Herbert’s direct or indirect disclosure or other acts. Xxxxxxx agrees to use his best endeavors to prevent the unauthorized disclosure or publication of confidential information and not to copy nor remove confidential information from USA’s premises, whether physically or electronically, without the express written permission of USA.

B. From and after the date hereof, except in connection with his duties hereunder, and for a two (2) year period following the termination of the Employment Period, or for a two (2) year period following the termination of Herbert's employment hereunder if earlier, Xxxxxxx shall not solicit, or divert business from, or serve, or sell to, any customer or account of USA of which Xxxxxxx is or becomes aware, or with which Xxxxxxx has had personal contact as a result of, in connection with, through his employment with, or through his affiliation with USA, whether or not pursuant to this Agreement and whether prior to or after the date hereof.

C. All documents, data, know-how, designs, inventions, names, marketing information, marketing method, marketing means, materials, software programs, hardware, configurations, information, data processing reports, lists and sales analyses, price lists or information, or any other materials or data of any kind furnished to Xxxxxxx by USA, or by USA’s customers, clients, accounts, or suppliers, or developed by Xxxxxxx on behalf of USA or at USA's direction or for USA's use, or otherwise devised, developed, created, or invented in connection with Herbert's employment hereunder or his affiliation with USA (whether or not during normal working hours), are and shall remain the sole and exclusive property of USA, and Xxxxxxx shall have no right or interest whatsoever thereto, including but not limited to, any copyright or patent interest whatsoever. If USA requests the return of any such items (including all copies) at any time whatsoever, Xxxxxxx shall immediately deliver the same to USA.

D. All documents, data, know-how, designs, products, ideas, equipment, inventions, names, devices, marketing information, marketing method, marketing means, materials, software programs, hardware, configurations, information, or any other materials or data of any kind developed by Xxxxxxx on behalf of USA or at its direction or for USA's use, or otherwise devised, developed, created, or invented in connection with Herbert’s employment with USA or Herbert’s affiliation with USA (whether or not during normal working hours), and whether before or after the date of this Agreement, are and shall remain the sole and exclusive property of USA, and Xxxxxxx agrees to apprise USA of the existence of such, and Xxxxxxx does not and shall not have any right, title, or interest whatsoever thereto. Xxxxxxx hereby acknowledges that all such rights to intellectual property shall belong exclusively to USA and not to Xxxxxxx. Any and all rights of ownership in connection with any of the foregoing shall belong solely to USA, and all copyright, patent, trademark, or similar rights or interests shall be the sole and exclusive property of USA. Xxxxxxx hereby assigns, transfers, and conveys to USA all of Herbert’s right, title and interest in and to any and all such inventions, discoveries, improvements, modifications and other intellectual property rights to effectuate, confirm, or evidence such assignment, transfer and conveyance, including but not limited to, executing and delivering any and all applicable forms, documents, or applications required under any applicable copyright, patent, trademark, or other law, rule or regulation.

E. At any and all times from and after the date hereof, and for a two (2) year period following the termination of Herbert’s employment with USA for any reason whatsoever, Xxxxxxx shall not (a) directly or indirectly, attempt to hire, or hire, any person employed by USA; or (b) directly or indirectly, interfere with USA's relations with any person employed by it.

SECTION 5. Restrictive Covenant. From and after the date hereof, and for a two (2) year period following the termination of the Employment Period, or for a two (2) year period following the termination of Herbert's employment hereunder if earlier, Xxxxxxx shall be prohibited from competing in all fifty states of the United States, and in each foreign country, possession, or territory in which USA is engaged in or actively pursuing business as of the termination or at any time during the preceding twelve month period, with the business of USA as presently or as hereinafter conducted, including but not limited to, the ownership or licensing or development of a cashless system which controls, monitors, and/or networks devices, including beverage vending machines. For the purposes hereof, the term "competing" shall mean acting, directly or indirectly, as a partner, principal, stockholder, joint venturer, associate, independent contractor, creditor of, consultant, trustee, lessor to, sublessor to, employee or agent of, or to have any other involvement with, any person, firm, corporation, or other business organization which is engaged in the businesses described in this Section.

SECTION 6. Remedies. Xxxxxxx acknowledges that any breach by him of the obligations set forth in Sections 4 or 5 hereof would substantially and materially impair and irreparably harm USA's business and goodwill; that such impairment and harm would be difficult to measure; and, therefore, total compensation in solely monetary terms would be inadequate. Consequently, Xxxxxxx agrees that in the event of any breach or any threatened breach by Xxxxxxx of any of the provisions of Sections 4 or 5 hereof, USA shall be entitled in addition to monetary damages or other remedies, to equitable relief, including injunctive relief, and to the payment by Xxxxxxx of all costs and expenses incurred by USA in enforcing the provisions thereof, including attorneys' fees. The remedies granted to USA in this Agreement are cumulative and are in addition to remedies otherwise available to USA at law or in equity.

SECTION 7. Waiver of Breach. The waiver by USA of a breach of any provision of this Agreement by Xxxxxxx shall not operate or be construed as a waiver of any other or subsequent breach by Xxxxxxx of such or any other provision.

SECTION 8. Notices. All notices required or permitted hereunder shall be in writing and shall be sent by certified or registered mail, return receipt requested, postage prepaid, as follows:

To USA:

USA Technologies, Inc.

000 Xxxxxxxxx Xxxx, Xxxxx 000

Xxxxxxx, Xxxxxxxxxxxx 00000

Attn: Xxxxx X. XxXxxxx, Chief Financial Officer

To Xxxxxxx:

Xx. Xxxxxxx X. Xxxxxxx

00 Xxxxx Xxxx

Xxxxxxxxx, Xxxxxxxxxxxx 00000

or to such other address as either of them may designate in a written notice served upon the other party in the manner provided herein. All notices required or permitted hereunder shall be deemed duly given and received on the second day next succeeding the date of mailing.

SECTION 9. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of any such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, scope, activity or subject, it shall be construed by limiting and reducing it, so as to be valid and enforceable to the extent compatible with the applicable law.

SECTION 10. Governing Law. The implementation and interpretation of this Agreement shall be governed by and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws rules.

SECTION 11. Binding Effect and Assignability.

A. The rights and obligations of both parties under this Agreement shall inure to the benefit of and shall be binding upon their personal representatives, heirs, successors and assigns. This Agreement, or any part thereof, may not be assigned by Xxxxxxx.

B. At the time of the consummation of a USA Transaction, and as a condition thereof, USA shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of USA expressly to assume and agree to perform this Agreement to the same extent that USA would be required to perform it if no such USA Transaction had taken place. Failure of USA to obtain an assumption of this Agreement at or prior to the consummation of such USA Transaction shall result in the termination of Herbert’s employment on the date of the consummation of the USA Transaction. In the event of the termination of Herbert’s employment, Xxxxxxx shall receive from USA all of the compensation and benefits described in subparagraphs (a), (b), (c), and (d) of Section 3.C (ii) as if Herbert’s employment had been terminated by USA without Cause on the date of the consummation of the USA Transaction. In addition to any other terms or conditions that survive the termination of Herbert’s employment with USA, all of the terms and conditions of Sections 4, 5 and 6 shall survive the termination of Herbert’s employment with USA. Except as specifically provided otherwise herein, Xxxxxxx shall not be required to mitigate the amount of any payment provided for in this Section 11.B by seeking other employment or otherwise, nor shall the amount of such payment be reduced by reason of compensation or other income Xxxxxxx receives for services rendered after Herbert’s termination of employment with USA. As used in this Agreement, USA shall mean USA and any successor to its business or assets as aforesaid which assumes and agrees to perform this Agreement, by operation of law or otherwise.

C. For purposes of this Agreement, the term "USA Transaction" shall mean:

(i) the acquisition by any person, entity or group required to file (or which would be required to file if USA had been subject to such provisions) a Schedule 13D or Schedule 14d-1 promulgated under the Securities Exchange Act of 1934 ("Exchange Act") or any acquisition by any person entitled to file (or which would be entitled to file if USA had been subject to such provisions) a Form 13G under the Exchange Act with respect to such acquisition of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 51% or more of USA’s then outstanding voting securities entitled to vote generally in the election of Directors (the "Outstanding Shares"); or

(ii) a change in the composition of the Board of Directors of USA over a period of twelve (12) months or less such that the Continuing Directors (as defined below) fail to constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to USA), where the term “Continuing Director” means at any date a member of the Board (i) who was a member of the Board on the date of the execution of this Agreement or (ii) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election; or

(iii) approval by the shareholders of USA of a reorganization, merger, consolidation, liquidation, or dissolution of USA, or the sale, transfer, lease or other disposition of all or substantially all of the assets of USA ( "Business Combination").

Notwithstanding subsection (iii) above, and other than in connection with a liquidation or dissolution of USA, a Business Combination described in subsection (iii) above shall not constitute a USA Transaction if following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Shares immediately prior to such Business Combination beneficially own, directly or indirectly , more than 51% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of Directors of the entity resulting from such business combination (including without limitation, an entity which as a result of such transactions owns USA or all or substantially all of USA’s assets either directly or through one or more subsidiaries), and (B) no person owns, directly or indirectly, 49% or more of the combined voting power of the then outstanding voting securities of the entity resulting from such Business Combination except to the extent that such ownership existed prior to the Business Combination.

SECTION 12. Special Tax Provision. Notwithstanding any provision to the contrary in this Agreement, no payments or benefits to which Xxxxxxx may become entitled under Section 3 or 11.B of this Agreement shall be made or provided to him prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of his “separation from service” with the Company (as determined in accordance with the provisions of Code Section 409A and the Treasury Regulations thereunder) or (ii) the date of his death, if Xxxxxxx is deemed at the time of such separation from service to be a “key employee” within the meaning of that term under Code Section 416(i) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 12 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to Xxxxxxx in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

SECTION 13. Entire Agreement. This Agreement constitutes the entire agreement with respect to the subject matter hereof between the parties hereto and there are no other agreements between the parties relating to the subject matter hereof. This Agreement completely replaces and supersedes the prior employment agreements entered into between Xxxxxxx and USA. This Agreement shall become effective from and after the date hereof. This Agreement may only be modified by an agreement in writing executed by both USA and Xxxxxxx.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

	USA TECHNOLOGIES, INC.

	By:	/s/ Xxxxx X. XxXxxxx
		Xxxxx X. XxXxxxx
		Chief Financial Officer


		/s/ Xxxxxxx X. Xxxxxxx
		XXXXXXX X. XXXXXXX

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EMPLOYMENT AND NON-COMPETITION AGREEMENT

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