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
