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STOCK PURCHASE AGREEMENT
This
Stock Purchase Agreement is made this 13 th day of
December 2006, by and between USA TECHNOLOGIES, INC., a
Pennsylvania corporation ("USA" or "Company"), and the buyers
identified in the signature pages hereto and detailed in the
attached Schedule A (each, a "Buyer", collectively, the
"Buyers").
Background
As more
fully set forth herein, the Buyers are purchasing from the Company
an aggregate of 1,000,000 shares of Common Stock of USA (the
"Shares") for $6 per share, for an aggregate subscription price of
$6,000,000, and warrants to purchase up to an aggregate of 500,000
shares of Common Stock of the Company at $6.40 per share at any
time through December 13, 2011(the "Warrants"). The form of Warrant
is attached hereto as Exhibit "A". The Warrants and Shares shall be
referred to hereinafter collectively as the "Securities". The
shares of Common Stock underlying the Warrants shall be referred to
hereinafter collectively as the "Warrant Shares".
Agreement
NOW
THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1.
Subscription . The Buyers hereby purchase the
Securities from the Company and the Company hereby sells and issues
the Securities to the Buyers. USA will deliver to the Buyers
certificates representing an aggregate of 1,000,000 shares of USA
Common Stock and all of the Warrants registered in the name of the
respective Buyer as detailed in Schedule A. In full payment for the
Securities, the Buyers will deliver to USA, upon receipt of the
Securities, checks payable to USA or wire transfers of immediately
available funds in the aggregate amount of $6,000,000.
No later
than thirty days following the date hereof, USA shall at its cost
and expense prepare and file and thereafter use its best efforts to
have declared effective within ninety (90) days from the date
hereof, an appropriate Registration Statement with the Securities
and Exchange Commission ("SEC") registering all of the Shares and
Warrant Shares for resale by the holder under the Securities Act of
1933, as amended ("Act"). The registration statement shall be
prepared as a "shelf" registration statement under Rule 415, and
the Company shall use its best efforts to have the registration
statement maintained effective until the earlier of (i) one year
from the date hereof, or (ii) the
date that all of
the Shares and Warrant Shares 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 (90) days from the
date hereof, then the Company will pay to each Buyer as liquidated
damages for such failure and not as a penalty a cash payment equal
to one percent (1%) of the aggregate subscription price paid by
each such Buyer for each month beyond such ninety (90) day period
that the registration statement is not effective. The foregoing
penalty payments shall be pro-rated for any periods of less than
one month. The payment of such liquidated damages shall not relieve
the Company from its obligations to register the Shares and Warrant
Shares pursuant to this Agreement. The maximum aggregate penalty
payable to any Buyer shall be twelve percent (12%) of the aggregate
subscription price paid by any such Buyer.
2. Verification of Status as "Accredited
Investor" .
Each Buyer hereby represents to USA that it qualifies as an
"accredited investor" as such term is defined in Rule 501
promulgated under the Act because each Buyer is a corporation or
partnership not formed for the specific purpose of acquiring the
Securities with total assets in excess of $5,000,000.
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.
2
(d) Warrant Stock . There has been reserved,
and the Company shall at all times keep reserved out of the
authorized and unissued shares of Common Stock, a number of shares
of Common Stock sufficient to provide for the exercise of the right
of purchase represented by the Warrants. All shares of Common Stock
issued upon exercise of the Warrants shall be, at the time of
delivery of the certificates for such Common Stock, validly issued
and outstanding, fully paid and non-assessable.
4.
Representations by Buyer . Each Buyer
represents and warrants to the Co
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