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-10 — Exhibit 10.30
EX-10 | 1st Page of 10 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 10.30
EMPLOYMENT AND NON-COMPETITION AGREEMENT
Agreement made this 4th day of April, 1996, by and between STEPHEN P.
HERBERT, an individual residing at 21 Creamery Lane, Ridgefield, Connecticut
06877 ("Herbert"), and USA TECHNOLOGIES, INC., a Pennsylvania corporation
("USA"), with a place of business at 3 Glenhardie Corporate Center, 1265
Drummers Lane, Suite 306, Wayne, Pennsylvania 19087.
BACKGROUND
USA is in the principal business of owning and licensing credit card
activated control systems for the vending, copying, debit card and personal
computer industries. USA desires to engage Herbert and Herbert desires to be
engaged by USA as Executive Vice President of Sales and Marketing of USA.
Because of, among other matters, the decreased value of the business of USA that
will result if Herbert would compete with USA or use or divulge certain
confidential information, Herbert has further agreed that he will be subject to
certain restrictions during and after his being an employee of USA.
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 Herbert for a one year period commencing
on April 15, 1996 and continuing through April 14, 1997
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(the "Employment Period") and Herbert 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 April 14, 1997, 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, Herbert 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, Herbert 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 President or Board of Directors of USA.
(c) Nothing contained in subparagraph (b) hereof shall be
construed as preventing Herbert from investing his personal assets in businesses
which do not compete with USA, (i) where the form or manner of such investments
will not require any management duties or time, or any other substantial
services or time, on the part of Herbert in connection with the businesses in
which such investments are made, or (ii) in which his participation is solely
that of a passive investor.
(d) The Board of Directors of USA shall nominate and recommend
to its stockholders the election of Herbert to the Board
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of Directors of USA at USA's next Annual Meeting of Stockholders which is
presently scheduled for April 10, 1996.
SECTION 2. Compensation and Benefits
(a) In consideration of his services rendered, USA shall pay
to Herbert a base salary of $81,000 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, and in
any event, shall at all times during the Employment Period (or any extension
thereof) be no less than 90% of the base salary of the Chairman and Chief
Executive Officer of USA.
(b) In addition to the base salary provided for in
subparagraph (a), Herbert shall be eligible to receive such bonus or bonuses as
the Board of Directors of USA may, in their discretion, pay to Herbert from time
to time.
(c) Herbert shall be entitled to be reimbursed by USA for all
reasonable expenses reasonably incurred by Herbert in connection with his
employment duties hereunder. Such expenses shall include but not be limited to
all reasonable business travel expenses such as tolls, gasoline and mileage.
Herbert shall reasonably document all requests for expense reimbursements.
(d) At the commencement of the Employment Period, USA will
issue to Herbert nonvested options to acquire up to 400,000 shares of Common
Stock, no par value, of the Company ("Common Stock") for an exercise price of
$.65 per share. The vesting schedule of such options as well as all the other
terms and
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conditions thereof are set forth in the Option Certificate evidencing such
options which will be delivered to Herbert by the Company at the commencement of
the Employment Period. The form of such Option Certificate is attached hereto as
Exhibit "A". Herbert acknowledges that such options are not incentive stock
options as such term is defined in Section 422 of the Internal Revenue Code of
1986, as amended, and such options, if and when vested, may constitute taxable
compensation to Herbert. Herbert also acknowledges that neither the options nor
the Common Stock underlying the options have been registered under the
Securities Act of 1933, as amended (the "Act"), or under any state securities
laws, and neither the options nor the Common Stock underlying the options can be
sold or transferred unless such options or Common Stock have been registered
under the Act or such state securities laws, or unless the Company has received
an opinion of counsel that such registration is not required.
(e) USA shall pay Herbert's reasonable moving expenses up to
the amount of $5,000. The expenses to be paid by USA will be for the actual
charges of Herbert's moving company in connection with Herbert's move to the
Philadelphia, Pennsylvania area.
SECTION 3. Termination. Notwithstanding anything else contained herein,
USA may terminate the employment of Herbert at any time upon notice delivered to
Herbert in the event that (i) Herbert commits any criminal or fraudulent act; or
(ii) Herbert breaches any term or condition of this Agreement; or (iii) Herbert
willfully abandons his duties hereunder. Upon such termination
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neither party hereto shall have any further duties or obligations hereunder
whatsoever; provided, however, that Herbert's obligations under Sections 5 and 6
hereof shall survive any such termination.
SECTION 4. Death and Disability.
(a) If Herbert shall die during the Employment Period, this
Agreement shall terminate as of the date of such death and except for any base
salary or bonuses accrued as of such date USA shall have no further duties or
obligations hereunder whatsoever.
(b) If USA determines in good faith that Herbert 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, upon the expiration of such period or
at any time thereafter, by action of USA, Herbert's employment hereunder may be
terminated immediately, upon giving him notice to that effect, and upon such
termination except for any base salary or bonuses accrued as of such date
neither party hereto shall have any further duties or obligations hereunder;
provided, however, that Herbert's obligations under Sections 5 and 6 hereof
shall survive any such termination. 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.
SECTION 5. Business Secrets.
(a) Except in connection with his duties hereunder, Herbert
shall not, directly or indirectly, at any time from and after the date hereof,
and for a one (1) year period following the
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termination of the Employment Period, or for a one (1) year period following the
termination of Herbert's employment hereunder if earlier, make any use of,
exploit, disclose, or divulge to any other person, firm or corporation, any
trade or business secret, customer or supplier information, documents, know-how,
data, marketing information, method or means, or any other confidential (i.e.
not already otherwise disseminated to or available to the public) information
concerning the business or policies of USA, that Herbert 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.
(b) From and after the date hereof, except in connection with
his duties hereunder, and for a one (1) year period following the termination of
the Employment Period, or for a one (1) year period following the termination of
Herbert's employment hereunder if earlier, Herbert shall not solicit, or divert
business from, or serve, or sell to, any customer or account of USA of which
Herbert is or becomes aware, or with which Herbert 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. Notwithstanding
the prior sentence, following the termination of Herbert's employment with USA,
Herbert shall be permitted to sell products to customers or accounts of USA,
provided such products are not competitive with, or similar to, any products of
USA, whether such products are offered now or at any time in the future by USA.
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(c) All documents, data, know-how, designs, inventions, names,
marketing information, method or 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 Herbert by USA, or developed by Herbert 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, are and shall remain the sole and exclusive property of USA, and
Herbert 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, Herbert
shall immediately deliver the same to USA.
SECTION 6. Restrictive Covenant. From and after the date hereof, and
for a one (1) year period following the termination of the Employment Period, or
for a one (1) year period following the termination of Herbert's employment
hereunder if earlier, Herbert shall be prohibited from competing in the United
States with the business of USA as presently or as hereinafter conducted,
including but not limited to the ownership and licensing of credit card
activated control systems in the vending, copying, debit card, or personal
computer industries. 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
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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 7. Remedies. Herbert acknowledges that any breach by him of the
obligations set forth in Sections 5 or 6 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, Herbert
agrees that in the event of any breach or any threatened breach by Herbert of
any of the provisions of Section 5 or 6 hereof, USA shall be entitled in
addition to monetary damages or other remedies, to equitable relief, including
injunctive relief, and to the payment by Herbert 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 8. Waiver of Breach. The waiver by USA of a breach of any
provision of this Agreement by Herbert shall not operate or be construed as a
waiver of any other or subsequent breach by Herbert of such or any other
provision.
SECTION 9. 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:
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To USA:
USA Technologies, Inc.
3 Glenhardie Corporate Center
1265 Drummers Lane, Suite 306
Wayne, Pennsylvania 19087
Attn: George R. Jensen, Jr., President
To Herbert:
Mr. Stephen P. Herbert
21 Creamery Lane
Ridgefield, Connecticut 06877
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 10. 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 11. Governing Law. The implementation and interpretation of
this Agreement shall be governed by and enforced
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in accordance with the laws of the Commonwealth of Pennsylvania without regard
to its conflict of laws rules.
SECTION 12. Binding Effect and Assignability. 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 Herbert.
SECTION 13. Entire Agreement. This Agreement constitutes the entire
agreement with respect to the subject matter hereof between the parties hereto
and except as provided herein there are no other agreements between the parties
relating to the subject matter hereof. This Agreement completely replaces and
supersedes the letter dated March 1, 1996, between Herbert and USA, and such
letter shall be void and of no further force or effect. This Agreement may only
be modified by an agreement in writing executed by both USA and Herbert.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
USA TECHNOLOGIES, INC.
By: /s/ George R. Jensen, Jr.
-------------------------------
George R. Jensen, Jr., Chairman
and Chief Executive Officer
/s/ Stephen P. Herbert
-------------------------------
STEPHEN P. HERBERT
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Dates Referenced Herein
| Referenced-On Page |
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This ‘SB-2’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 4/14/97 | | 1 | | 2 | | | None on these Dates |
Filed on: | | 8/2/96 |
| | 4/15/96 | | 1 |
| | 4/10/96 | | 3 |
| | 3/1/96 | | 10 |
| List all Filings |
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