Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration of Securities by a Small-Business 88 373K
Issuer
2: EX-3 Exhibit 3.1.6 3 14K
3: EX-4 Exhibit 4.1 25 60K
4: EX-4 Exhibit 4.2 4 20K
5: EX-5 Exhibit 5.1 2± 12K
6: EX-10 Exhibit 10.1.2 2 12K
11: EX-10 Exhibit 10.14.2 3 12K
12: EX-10 Exhibit 10.15.1 3 16K
13: EX-10 Exhibit 10.18.1 6 29K
7: EX-10 Exhibit 10.2.1 2 12K
15: EX-10 Exhibit 10.28 10 26K
16: EX-10 Exhibit 10.29 7 31K
8: EX-10 Exhibit 10.3.1 2 12K
17: EX-10 Exhibit 10.30 10 27K
18: EX-10 Exhibit 10.31 7 31K
19: EX-10 Exhibit 10.32 2 16K
20: EX-10 Exhibit 10.33 2 13K
9: EX-10 Exhibit 10.6.1 6 30K
10: EX-10 Exhibit 10.7.1 6 30K
14: EX-10.26 Remarketing Agreement 9 51K
21: EX-23 Exhibit 23.1 1 8K
EX-4 — Exhibit 4.1
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Exhibit 4.1
USA TECHNOLOGIES, INC.
1996 COMMON STOCK PURCHASE WARRANTS
WARRANT AGREEMENT
1996 Warrant AGREEMENT dated as of the 1st day of May, 1996,
by and between USA TECHNOLOGIES, INC., a Pennsylvania corporation (hereinafter
called the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, as warrant
agent (hereinafter called the "1996 Warrant Agent").
WHEREAS, the Company at or about the same time that it is
entering into this Agreement, is issuing 1996 Common Stock Purchase Warrants
("1996 Warrants") to purchase up to 5,200,000 shares of Common Stock, no par
value of the Company ("Common Stock"). Each 1996 Warrant represents the right to
purchase from the Company one (1) share of Common Stock at the purchase price
("Purchase Price") of $.40 per share for a period commencing on June 1, 1996 and
ending at 5:00 p.m., December 31, 1996, and $.50 per share commencing on January
1, 1997 and ending on 5:00 p.m., May 31, 2001, subject to the terms and
conditions hereinafter set forth; and
WHEREAS, the Company desires the 1996 Warrant Agent to act on
behalf of the Company, and the 1996 Warrant Agent is willing so to act, in
connection with the issuance, registration, transfer, exchange and replacement
of the certificates evidencing the 1996 Warrants (the " 1996 Warrant
Certificate") and the exercise of the 1996 Warrants, and to act as depository
for the 1996 Warrant Certificates.
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NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Appointment of 1996 Warrant Agent. The Company
hereby appoints the 1996 Warrant Agent to act as agent for the Company in
accordance with the terms and conditions hereinafter in this Agreement set
forth, and the 1996 Warrant Agent hereby accepts such appointment.
Section 2. Form of 1996 Warrant Certificates. The text of the
1996 Warrant Certificates (and the form of election to purchase shares to be
printed on the reverse thereof) shall be substantially as set forth in Exhibit
"A" attached hereto, and may have such letters, numbers,or other marks of
identification or designation and such legends, summaries, or endorsements
printed, lithographed, or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this 1996 Warrant Agreement,
or as may be required to comply with any law or with any rules or regulations of
any stock exchange. The 1996 Warrant Certificates may bear such notice of
restriction on transfer and/or exercise as the Company's counsel may deem
necessary or appropriate for the Company to comply with all federal or state
laws or regulations, including securities laws. The 1996 Warrant Certificates
shall be dated as of the date of issuance thereof by the 1996 Warrant Agent,
either upon initial issuance or upon transfer or exchange, and on their face
shall entitle the holders thereof to purchase such number of shares of Common
Stock
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at the Purchase Price, subject to all of the terms and conditions
hereof. 1996 Warrant Certificates shall be numbered serially with
the letter W for the 1996 Warrants.
Section 3. Countersignature and Registration. The 1996 Warrant
Agent shall keep, or cause to be kept, at its principal office, books for the
transfer and registration of the 1996 Warrant Certificates issued hereunder.
Such books shall show the names and addresses of the respective holders of the
1996 Warrant Certificates, the number of 1996 Warrants evidenced on its face by
each of the 1996 Warrant Certificates, and the date of each of the 1996 Warrant
Certificates.
The 1996 Warrant Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its President, or any Vice President,
by facsimile signature, and have affixed thereto a facsimile of the Company's
seal which shall be attested by the Secretary or an Assistant Secretary of the
Company by facsimile signature. The 1996 Warrant Certificates shall be
countersigned manually or by facsimile by the 1996 Warrant Agent (or by any
successor to the 1996 Warrant Agent then acting as 1996 Warrant Agent under this
Agreement) and shall not be valid for any purpose unless so countersigned. 1996
Warrant Certificates may be so countersigned, however, by the 1996 Warrant Agent
(or by its successor as 1996 Warrant Agent) and be delivered by the 1996 Warrant
Agent, notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to be such
officers at the time of such
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countersignature or delivery.
Section 4. Transfers and Exchanges.
Subject to the provisions of Section 10 hereof, any 1996
Warrant Certificate, with or without other 1996 Warrant Certificates, may be
transferred, split up, combined, or exchanged for another 1996 Warrant
Certificate or 1996 Warrant Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock as the 1996 Warrant Certificate
or 1996 Warrant Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring to transfer, split up, combine, or exchange any
1996 Warrant Certificates shall make such request in writing delivered to 1996
Warrant Agent, and shall surrender the 1996 Warrant Certificate or 1996 Warrant
Certificates to be transferred, split up, combined,or exchanged at the principal
office of 1996 Warrant Agent. Subject to Section 4.B, 1996 Warrant Agent shall
countersign and deliver to the person entitled thereto a 1996 Warrant
Certificate, or 1996 Warrant Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover all taxes and other
governmental charges that may be imposed in connection with any transfers, split
up, combination, or exchange of 1996 Warrant Certificates.
As a condition to the transfer, split up, combination, or
exchange of any 1996 Warrant Certificate or 1996 Warrant Certificates, pursuant
to Section 4.A, the holder and/or proposed holder of such 1996 Warrant
Certificate or 1996 Warrant
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Certificates, shall execute and deliver such representations, 1996 Warranties,
and covenants, that may be required by applicable federal and state securities
law, or that the Company determines is reasonably necessary in connection with
the transfer, split up, combination or exchange of such 1996 Warrant Certificate
or 1996 Warrant Certificates, and the 1996 Warrant Certificate or 1996 Warrant
Certificates to be issued by the 1996 Warrant Agent shall contain such legends,
or restrictive legends, or stop transfer instructions, as shall be required by
applicable federal or state securities laws, or as shall be reasonably required
by the Company.
Section 5. Exercise of the 1996 Warrants.
A. Subject to the provisions of this Agreement, each
registered holder of a 1996 Warrant Certificate shall have the right which may
be exercised commencing at the opening of business on June 1, 1996 (the "1996
Warrant Date"), and which shall terminate at 5:00 p.m. on May 31, 2001, or such
later date or dates as the Company may determine (the "1996 Warrant Termination
Date"), to purchase from the Company, and the Company shall issue and sell to
such registered holder of the 1996 Warrant Certificate, the number of fully paid
and non-assessable shares of Common Stock specified in such 1996 Warrant
Certificate, upon surrender to the Company at the office of the 1996 Warrant
Agent of such 1996 Warrant Certificate, with the form of election to purchase on
the reverse thereof duly filled in and signed and upon payment to the Company of
the Purchase Price, determined in accordance with the provisions of Sections 8
and 9 of this Agreement, for the number of
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Common Shares in respect of which such 1996 Warrants are then exercised. Payment
of such Purchase Price shall be made in cash or by certified check or bank draft
payable to the order of the Company. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of a 1996 Warrant.
B. Upon the surrender of the 1996 Warrant Certificate, with
the form of election to purchase duly executed, and payment of the Purchase
Price as aforesaid, the 1996 Warrant Agent shall issue and cause to be delivered
with all reasonable dispatch to or upon the written order of the registered
holder of such 1996 Warrant Certificate and in such name or names as such
registered holder may designate, a certificate or certificates for the number of
full shares of Common Stock so purchased upon the exercise of such 1996
Warrants. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Common Stock as of the date of the surrender of such
1996 Warrant Certificate and payment of the Purchase Price as aforesaid;
provided, however, that if, at the date of surrender of such 1996 Warrant
Certificate and payment of such Purchase Price, the transfer books for the
Common Stock purchasable upon the exercise of such 1996 Warrants shall be
closed, the certificates for the Common Stock in respect to which such 1996
Warrants are then exercised shall be issuable as of the next date on which such
books shall be opened, and until such date the Company shall be under no duty to
deliver any certificate for such Common Stock.
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C. The rights of purchase represented by the 1996 Warrant
Certificate shall be exercisable, at the election of the registered holders
thereof, either as an entirety or from time to time for part only of the Common
Stock specified therein and, in the event that any 1996 Warrant Certificate is
exercised in respect of less than all of the Common Stock specified therein at
any time prior to the 1996 Warrant Termination Date, a new 1996 Warrant
Certificate or 1996 Warrant Certificates will be issued to such registered
holder for the remaining number of shares of Common Stock specified in the 1996
Warrant Certificate so surrendered, and the 1996 Warrant Agent is hereby
irrevocably authorized to countersign and to deliver the required new 1996
Warrant Certificate pursuant to the provisions of this Section and of Section 3
of this Agreement.
D. No 1996 Warrant is exercisable by a holder unless, at the
time of exercise by such holder, (1) there is either (a) a registration
statement or prospectus covering the shares of Common Stock underlying the 1996
Warrant that is effective under (I) the Securities Act of 1933, as amended, and
(ii) the securities laws of the state of the address of record of such holder,
or (b) an exemption is available from registration for the exercise of the 1996
Warrant and issuance of the shares of Common Stock in the opinion of counsel to
the Company; and (2) such exercise and issuance would otherwise be in compliance
with applicable law in the opinion of counsel to the Company. No 1996 Warrant
may be, directly or indirectly, transferred to, or exercised by, any person
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in any state where such transfer or exercise would violate any law, including
securities law, of such state in the opinion of counsel to the Company.
E. Prior to the exercise of the 1996 Warrants evidenced
thereby, the holder of a 1996 Warrant Certificate shall not be entitled to any
rights of a shareholder of the Company with respect to the shares for which the
1996 Warrants are exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.
F. To the extent that any 1996 Warrant Certificates remain
outstanding and unexercised at 5:00 p.m. on the 1996 Warrant Expiration Date,
such outstanding 1996 Warrant Certificates, and any and all rights to purchase
Common stock associated therewith, shall automatically become null and void and
shall have no further force or effect whatsoever.
Section 6. Mutilated or Missing 1996 Warrants. In case any of
the 1996 Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue and the 1996 Warrant Agent shall countersign
and deliver in exchange and substitution for and upon cancellation of the
mutilated 1996 Warrant Certificate, or in lieu of and substitution for the 1996
Warrant Certificate lost, stolen or destroyed, a new 1996 Warrant Certificate of
like tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the
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Company and the 1996 Warrant Agent of such loss, theft or destruction of such
1996 Warrant Certificate and indemnity, if requested, also satisfactory to them.
Applicants for such substitute 1996 Warrant Certificates shall also comply with
such other reasonable regulations and pay such reasonable charges as the Company
or the 1996 Warrant Agent may prescribe.
Section 7. Reservation of Common Stock.
A. There have been reserved, and the Company shall at all
times keep reserved out of the authorized and unissued Common Stock, a number of
shares of Common Stock sufficient to provide for the exercise of the rights of
purchase represented by the 1996 Warrants. The Company agrees that all Common
Stock issued upon exercise of the 1996 Warrants shall be, at the time of
delivery of the certificates for such Common Stock, validly issued and
outstanding, fully paid and non-assessable.
B. The Company will keep a copy of this Agreement on file with
the transfer agent for the Common Stock and with every subsequent transfer agent
for any Common Stock or of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the 1996 Warrants. The 1996
Warrant Agent is hereby irrevocably authorized to requisition from such transfer
agent stock certificates required to honor outstanding 1996 Warrants. The
Company will supply such transfer agent with duly executed stock certificates
for such purpose and will itself provide or otherwise make available any cash
which may be issuable only if so provided in Section 10 of this Agreement.
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C. All 1996 Warrant Certificates surrendered in the exercise
of the rights thereby evidenced shall be canceled by the 1996 Warrant Agent and
shall thereafter be delivered to the Company, and such canceled 1996 Warrant
Certificates shall constitute sufficient evidence of the number of shares of
Common Stock which have been issued upon the exercise of such 1996 Warrants.
Promptly after the 1996 Warrant Expiration Date, the 1996 Warrant Agent shall
certify to the Company the total aggregate amount of 1996 Warrant Certificates
then outstanding, and thereafter no Common Stock shall be subject to reservation
in respect to such 1996 Warrants which shall have expired.
Section 8. Purchase Price. The Purchase Price at which Common
Stock shall be purchasable pursuant to the 1996 Warrants shall be $.40 per share
at any time from the 1996 Warrant Date until 5:00 p.m. on December 31, 1996, and
$.50 per share at any time thereafter until the 1996 Warrant Expiration Date;
provided, such price shall be subject to adjustment as provided in Section 9
hereof. In addition to the adjustments required by Section 9, the Company may,
at any time or from time to time prior to the 1996 Warrant Termination Date,
reduce the Purchase Price for such period or periods of time as the Company
deems appropriate.
Section 9. Adjustments. Subject and pursuant to the provisions
of this Section 9, the Purchase Price, the number of shares of Common Stock
covered by each 1996 Warrant, and the number of 1996 Warrants outstanding, shall
be subject to adjustment from time to time only as set forth hereinafter:
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A. In case the Company shall declare a Common Stock dividend
on the Common Stock, then the Purchase Price shall be proportionately decreased
as of the close of business on the date of record of said Common Stock dividend
in proportion to such increase of outstanding shares of Common Stock.
B. If the Company shall at any time subdivide its outstanding
Common Stock by recapitalization, reclassification or split-up thereof, the
Purchase Price immediately prior to such subdivision shall be proportionately
decreased, and, if the Company shall at any time combine the outstanding shares
of Common Stock by recapitalization, reclassification, or combination thereof,
the Purchase Price immediately prior to such combination shall be
proportionately increased. Any such adjustment to the Purchase Price shall
become effective at the close of business on the record date for such
subdivision or combination. The Purchase Price shall be proportionately
increased or decreased, as the case may be, in proportion to such increase or
decrease, as the case may be, of outstanding shares of Common Stock.
C. Upon any adjustment of the Purchase Price as hereinabove
provided, the number of shares of Common Stock issuable upon exercise of the
1996 Warrants remaining unexercised immediately prior to such adjustment, shall
be changed to the number of shares determined by dividing (I) the aggregate
Purchase Price payable for the purchase of all shares of Common Stock issuable
upon exercise of all the 1996 Warrants remaining unexercised immediately prior
to such adjustment, by (ii) the
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Purchase Price per share of Common Stock in effect immediately after such
adjustment. Pursuant to this formula, the total sum payable to the Company upon
the exercise of the 1996 Warrants remaining unexercised immediately prior to
such adjustment shall remain constant.
D. (I) If any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company with
another corporation, person, or entity, or the sale of all or substantially all
of its assets to another corporation, person, or entity, shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities, cash, property, or assets with respect to or in exchange for Common
Stock, and provided no election is made by the Company pursuant to subsection
(ii) hereof, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, the Company or such successor or purchasing
corporation, person, or entity, as the case may be, shall execute with the 1996
Warrant Agent a supplemental 1996 Warrant Agreement providing that each
registered holder of a 1996 Warrant Certificate shall have the right thereafter
and until the 1996 Warrant Expiration Date to exercise such 1996 Warrants for
the kind and amount of stock, securities, cash, property, or assets receivable
upon such reorganization, reclassification, consolidation, merger, or sale by a
holder of the number of shares of Common Stock for the purchase of which such
1996 Warrant might have been exercised immediately prior to such reorganization,
reclassification, consolidation,
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merger or sale, subject to subsequent adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
9.
(ii) Notwithstanding subsection (I) hereof and in
lieu thereof, the Company may elect by written notice to the registered holder
of the 1996 Warrant Certificates, to require such registered holder to exercise
all of the 1996 Warrants remaining unexercised prior to any such reorganization,
reclassification, consolidation, merger or sale. If the holder of any 1996
Warrant Certificate shall not exercise all or any part of the 1996 Warrants
remaining unexercised prior to such event, such unexercised 1996 Warrants shall
automatically become null and void upon the occurrence of any such event, and of
no further force and effect. The Common Stock issued pursuant to any such
exercise shall be deemed to be issued and outstanding immediately prior to any
such event, and shall be entitled to be treated as any other issued and
outstanding share of Common Stock in connection with such event.
E. The form of 1996 Warrant Certificate need not be changed
because of any change pursuant to this Section 9, and 1996 Warrant Certificates
issued after such change may state the same Purchase Price and the same number
of shares of Common Stock as is stated in the 1996 Warrant Certificates
initially issued pursuant to this 1996 Warrant Agreement. However, the Company
may at any time in its sole discretion (which shall be conclusive) make any
change in the form of 1996 Warrant Certificates that the Company may deem
appropriate and that does not affect the substance
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thereof; and any 1996 Warrant Certificates thereafter issued or countersigned,
whether in exchange or substitution for an outstanding 1996 Warrant Certificate
or otherwise, may be in the form as so changed.
Section 10. Fractional Interest.
A. The Company shall not be required to issue fractions of
1996 Warrants or to distribute 1996 Warrant Certificates which evidence
fractional 1996 Warrants.
B. Upon the exercise of the 1996 Warrants, the Company shall
not be required to issue fractional shares of its Common Stock, or to distribute
certificates which evidence fractional shares. In lieu of the issuance of any
such fractional shares on the exercise of the 1996 Warrants, and provided that
the holder of the 1996 Warrant Certificates being exercised has exercised all of
the 1996 Warrants then held by such holder, the Company shall pay cash to the
registered holder of the 1996 Warrants in an amount equal to the value of such
fractional shares based on the market value of the Common Stock on the last
trading day prior to the exercise date. If the holder of such 1996 Warrant
Certificates has not exercised all of the 1996 Warrants then held by such
holder, the Company shall not be required to purchase any such fraction.
Section 11. Notices to 1996 Warrant Holders. Upon any
adjustment of the Purchase Price, the number of shares of Common Stock issuable
on exercise of each 1996 Warrant, or the number of 1996 Warrants are adjusted as
provided in Section or if the Purchase Price is reduced by the Company, or the
1996 Warrant Date
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or 1996 Warrant Expiration Date are adjusted by the Company, then and in each
such case the Company shall give written notice thereof to the 1996 Warrant
Agent, which notice shall state the Purchase Price resulting from such
adjustment, the increase or decrease, if any, in the number of shares of Common
Stock purchasable at such price upon the exercise of each 1996 Warrant, and the
increase or decrease, if any, in the number of 1996 Warrants, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
Section 12. Disposition of Proceeds on Exercise of 1996
Warrants.
A. The 1996 Warrant Agent shall account promptly to the
Company with respect to 1996 Warrants exercised and shall forward to the Company
all monies received by the 1996 Warrant Agent for the purchase of shares of
Common Stock through the exercise of such 1996 Warrants.
B. The 1996 Warrant Agent shall keep copies of this Agreement
available for inspection by holders of 1996 Warrant Certificates during normal
business hours.
Section 13. Merger or Consolidation or Change of Name of 1996
Warrant Agent. Any corporation or company which may succeed to the business of
the 1996 Warrant Agent by any merger or consolidation or otherwise to which the
1996 Warrant Agent shall be a party, or any corporation or company succeeding to
the corporate trust business of the 1996 Warrant Agent, shall be the successor
1996 Warrant Agent hereunder without the execution or filing of any
15
paper or any further act on the part of any of the parties hereto. In case at
the time such successor to the 1996 Warrant Agent shall succeed to the agency
created by this 1996 Warrant Agreement, any of the 1996 Warrant Certificates
shall have been countersigned but not delivered, any such successor to the 1996
Warrant Agent may adopt the countersignature of the original 1996 Warrant Agent
and deliver such 1996 Warrant Certificates so countersigned; and in case at that
time any of the 1996 Warrant Certificates shall not have been countersigned, any
successor to the 1996 Warrant Agent may countersign such 1996 Warrant
Certificates either in the name of the predecessor 1996 Warrant Agent or in the
name of the successor 1996 Warrant Agent; and in all such cases such 1996
Warrant Certificates shall have the full force provided in the 1996 Warrant
Certificates and in this 1996 Warrant Agreement. In the event the name of the
1996 Warrant Agent shall be changed and at such time any of the 1996 Warrant
Certificates shall have been countersigned but not delivered, the 1996 Warrant
Agent may adopt the countersignature under its prior name and deliver 1996
Warrant Certificates so countersigned; and in case at that time any of the 1996
Warrant Certificates shall not have been countersigned, the 1996 Warrant Agent
may countersign such 1996 Warrant Certificates either in its prior name or in
its changed name; and in all such cases such 1996 Warrant Certificates shall
have the full force provided in the 1996 Warrant Certificates and in this 1996
Warrant Agreement.
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Section 14. Duties of 1996 Warrant Agent. The 1996 Warrant
Agent undertakes the duties and obligations imposed by this 1996 Warrant
Agreement upon the following terms and conditions, by all of which the Company
and the holders of 1996 Warrant Certificates, by their acceptance thereof, shall
be bound.
A. The statements of facts and recitals contained herein and
in the 1996 Warrant Certificates shall be taken as statements of the Company,
and the 1996 Warrant Agent assumes no responsibility for the correctness of any
of the same except such as describe the 1996 Warrant Agent or action taken or to
be taken by it. The 1996 Warrant Agent assumes no responsibility with respect to
the distribution of the 1996 Warrant Certificates except as herein expressly
provided.
B. The 1996 Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained in this
Agreement or in the 1996 Warrant Certificates to be complied with by the
Company.
C. The 1996 Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the 1996 Warrant
Agent shall incur no liability or responsibility to the Company or to any holder
of any 1996 Warrant Certificate in respect to any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
D. The 1996 Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any 1996 Warrant
Certificate for any action taken in reliance on any notice,
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resolution, waiver, consent, order, certificate, or other paper, document or
instrument believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
E. To the extent, and in the amounts agreed upon between the
Company and the 1996 Warrant Agent, the Company agrees to pay to the 1996
Warrant Agent reasonable compensation for all services rendered by the 1996
Warrant Agent in connection with this 1996 Warrant Agreement, to reimburse the
1996 Warrant Agent for all expenses, taxes and governmental charges and other
charges of any kind and nature incurred by the 1996 Warrant Agent in connection
with this 1996 Warrant Agreement. The Company also agrees to indemnify the 1996
Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by
the 1996 Warrant Agent in connection with the 1996 Warrant Agreement except as a
result of the 1996 Warrant Agent's negligence, willful misconduct, or bad faith.
F. The 1996 Warrant Agent shall be under no obligation to
institute any action, suit or legal proceedings or to take any other action
likely to involve expenses unless the Company or one or more registered holders
of 1996 Warrant Certificates shall furnish the 1996 Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be
incurred, but this provision shall not affect the power of the 1996 Warrant
Agent to take such action as the 1996 Warrant Agent may consider proper, whether
with or without any security or indemnity. All rights of
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action under this 1996 Warrant Agreement or under any of the 1996 Warrants may
be enforced by the 1996 Warrant Agent without the possession of any of the 1996
Warrant Certificates or production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the 1996
Warrant Agent shall be brought in its name as 1996 Warrant Agent, and any
recovery or judgment shall be for the ratable benefit of the registered holders
of the 1996 Warrant Certificates, as their respective rights or interests may
appear.
G. The 1996 Warrant Agent shall act hereunder solely as agent
and not in a ministerial capacity, and its duties shall be determined solely by
the provisions hereof. The 1996 Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this 1996 Warrant
Agreement except for its own negligence, willful misconduct or bad faith.
H. The 1996 Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys, agents or employees, and the 1996 Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys, agents or employees or for any loss to the
Company resulting from such neglect or misconduct, provided reasonable care had
been exercised in the selection and continued employment thereof.
I. Any request, direction, election, order or demand of
the Company shall be sufficiently evidenced by an instrument signed
19
in the name of the Company by its President or Vice President or its Secretary
or an Assistant Secretary or its Treasurer or Assistant Treasurer (unless other
evidence in respect thereof be herein specifically prescribed); any resolution
of the Board of Directors may be evidenced to the 1996 Warrant Agent by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company.
Section 15. Change of 1996 Warrant Agent. The 1996 Warrant
Agent may resign and be discharged from its duties under this 1996 Warrant
Agreement by giving to the Company notice in writing, and to the holders of the
1996 Warrant Certificates notice by mailing such notice to holders at their
addresses appearing on the 1996 Warrant register, of such resignation,
specifying a date when such resignation shall take effect. The 1996 Warrant
Agent may be removed by like notice to the 1996 Warrant Agent from the Company
and by like mailing of notice to the holders of the 1996 Warrant Certificates.
If the 1996 Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the 1996 Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated 1996 Warrant Agent
or by the registered holder of a 1996 Warrant Certificate (who shall, with such
notice, submit his 1996 Warrant Certificate for inspection by the Company), then
the registered holder of any 1996 Warrant Certificate may apply to any court of
20
competent jurisdiction for the appointment of a successor to the 1996 Warrant
Agent. Any successor 1996 Warrant agent, whether appointed by the Company or by
such a court, shall be a bank or trust company, in good standing, incorporated
under the laws of the Commonwealth of Pennsylvania or any other state in the
United States of America. After appointment, the successor 1996 Warrant agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as 1996 Warrant Agent without further act or deed;
but the former 1996 Warrant Agent shall deliver and transfer to the successor
1996 Warrant agent all canceled 1996 Warrants, records and property at the time
held by it hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Failure to file or mail any notice
provided for in this Section, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the 1996 Warrant Agent
or the appointment of the successor 1996 Warrant agent, as the case may be.
Section 16. Right of Action. All rights of action in respect
of this Agreement are vested in the respective registered holders of the 1996
Warrant Certificates; and any registered holder of any 1996 Warrant Certificate,
without the consent of 1996 Warrant Agent or of the holder of any other 1996
Warrant Certificate, may, in such holder's own behalf and for such holder's own
benefit, enforce, and may institute and maintain any suit, action, or proceeding
against the Company to enforce,or otherwise
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in respect of, such holder's right to exercise the 1996 Warrants evidenced by
such 1996 Warrant Certificate in the manner provided in such 1996 Warrant
Certificate and in this Agreement.
Section 17. Agreement of 1996 Warrant Certificate Holders.
Every holder of a 1996 Warrant Certificate, by accepting same, consents and
agrees with Company, 1996 Warrant Agent, and with every other holder of a 1996
Warrant Certificate that:
A. The 1996 Warrants are transferable only on the
registry books of 1996 Warrant Agent upon surrender of the 1996
Warrant Certificates at the principal office of 1996 Warrant Agent
and only as provided in Section 4; and
B. The Company and 1996 Warrant Agent may deem and treat the
person in whose name the 1996 Warrant Certificate is registered as the absolute
owner thereof and of the 1996 Warrants evidenced thereby (notwithstanding any
notations of ownership or writing on the 1996 Warrant Certificates made by
anyone other than the Company or 1996 Warrant Agent) for all purposes
whatsoever, and neither the Company nor 1996 Warrant Agent shall be affected by
any notice to the contrary.
Section 18. Identity of Transfer Agent. Forthwith upon the
appointment of any transfer agent for the Common Stock (other than 1996 Warrant
Agent) or any subsequent transfer agent for Common Stock or other shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the 1996 Warrants, the Company will file with the 1996 Warrant
Agent a statement setting forth the name and address of such transfer agent.
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Section 19. Notices. Any notice pursuant to this 1996 Warrant
Agreement to be given or made by the 1996 Warrant Agent or by the registered
holder of any 1996 Warrant Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the
1996 Warrant Agent) as follows:
USA Technologies, Inc.
3 Glenhardie Corporate Center
1265 Drummers Lane, Suite 306
Wayne, Pennsylvania 19087
Attn: George R. Jensen, Jr.,
President
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any 1996 Warrant Certificate to or on the 1996 Warrant
Agent shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the 1996
Warrant Agent with the Company) as follows:
American Stock Transfer &
Trust Company
40 Wall Street
New York, New York 10005
Section 20. Supplements and Amendments. The Company and the
1996 Warrant Agent may from time to time supplement or amend the 1996 Warrant
Agreement without the approval of any holders of 1996 Warrant Certificates in
order to cure any ambiguity or to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provision herein,
or to
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make any other provisions in regard to matters or questions arising hereunder
which the Company and the 1996 Warrant Agent may deem necessary or desirable and
which shall not be inconsistent with the provisions of the 1996 Warrant
Certificates and which shall not adversely affect the interests of the holders
of 1996 Warrant Certificates.
Section 21. Successors. All the covenants and provisions of
this 1996 Warrant Agreement by or for the benefit of the Company or the 1996
Warrant Agent shall bind and inure to the benefit of their respective successors
and assigns hereunder.
Section 22. Interpretation. This 1996 Warrant Agreement and
each 1996 Warrant Certificate issued hereunder shall be deemed to be a contract
made under the laws of the Commonwealth of Pennsylvania and for all purposes
shall be constructed in accordance with the laws of said Commonwealth.
Section 23. Benefits of this Agreement. Nothing in this 1996
Warrant Agreement shall be construed to give to any person or corporation other
than the Company, the 1996 Warrant Agent and the registered holders of the 1996
Warrant Certificates any legal or equitable right, remedy or claim under this
1996 Warrant Agreement; but this 1996 Warrant Agreement shall be for the sole
and exclusive benefit of the Company, the 1996 Warrant Agent and the registered
holders of the 1996 Warrant Certificates.
Section 24. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
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counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant Agreement to be duly executed as of the day and year first above
written.
USA TECHNOLOGIES, INC.
Attest: /s/Keith Sterling By: /s/George R.Jensen,Jr.
--------------------- ------------------------------
George R. Jensen, Jr.,
President
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest: /s/Joe Alicia By: /s/Joe Wolf
--------------------- ------------------------------
Authorized Officer
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Dates Referenced Herein and Documents Incorporated by Reference
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