SECOND AMENDMENT TO EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit
10.27
SECOND AMENDMENT TO
EMPLOYMENT AND
NON-COMPETITION
AGREEMENT
This
Second Amendment is made on the 22nd day of September 2008, by and between
XXXXXX X. XXXXXX, XX. ("Xxxxxx"), and USA TECHNOLOGIES, INC., a Pennsylvania
corporation ("USA").
Background
USA and
Xxxxxx entered into an Amended and Restated Employment And Non-Competition
Agreement dated May 11, 2006, and a First Amendment thereto dated March 13, 2007
(collectively, the "Employment Agreement"). As more fully set forth herein, the
parties desire to amend the Employment Agreement in certain
respects.
Agreement
NOW,
THEREFORE, in consideration of the covenants set forth herein, and intending to
be legally bound hereby, the parties agree as follows:
1.
Amendments.
A. The
date “June 30, 2009” appearing in the first and second sentences of subparagraph
(a) of Section 1. Employment of the
Agreement is hereby deleted and the date “June 30, 2011” is hereby substituted
in its place.
B. The
first sentence of subparagraph (a) of Section 2. Compensation and
Benefits of the Agreement is hereby deleted and the following sentence
substituted in its place:
In
consideration of his services rendered, USA shall pay to Xxxxxx, from and after
October 1, 2008, a base salary of $365,000 per year during the Employment
Period, subject to any withholding required by law.
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C. The
following new subparagraph (g) shall be added to Section 2. Compensation and
Benefits of the Agreement:
(g) On
the date of the execution and delivery by each of USA and Xxxxxx of this Second
Amendment, USA shall issue to Xxxxxx 110,000 shares of Common Stock as a bonus.
These shares shall vest as follows: 36,000 on the date of this Agreement; 37,000
on January 15, 2009; and 37,000 on June 30, 2009. The shares shall be issued
pursuant to USA’s 2008 Stock Incentive Plan and shall be registered under the
Securities Act of 1933, as amended, pursuant to a Form S-8 Registration
Statement. Xxxxxx acknowledges that the vesting of the shares will represent
taxable income to him and that he (and not USA) shall be responsible for the
payment of any and all income or other taxes (including any withholding tax
obligations of USA) attributable to the vesting of the shares. Not later than
the business day following the date on which any of the shares are included in
the taxable income of Xxxxxx, Xxxxxx shall satisfy USA’s withholding tax
obligations in connection with such shares by either (a) the delivery by Xxxxxx
to USA of a cash payment equal to the amount of the withholding tax obligations,
or (b) the assignment and transfer by Xxxxxx to USA of that number of shares of
Common Stock (which may consist of the vested shares issued hereunder as a bonus
to Xxxxxx or any other shares of Common Stock owned by Xxxxxx) having a value
equal to the withholding tax obligations required to be withheld by law, or (c)
such other payment method that shall be satisfactory to USA.
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D.
Subsection H of Section 3.A. Long-Term Equity
Compensation Plan of the Agreement is hereby deleted and the following
new Subsection H substituted in its place:
X. Xxxxxx
shall be responsible for any and all applicable federal, state or local income
and other tax withholding obligations of USA in connection with the Shares. Not
later than the business day immediately following the date on which any Shares
are included in the taxable income of Xxxxxx, Xxxxxx shall satisfy USA’s
withholding tax obligations in connection with such Shares by either (a) the
delivery by Xxxxxx to USA of a cash payment in the amount of the withholding tax
obligations, or (b) the assignment and transfer by Xxxxxx to USA of that number
of shares of Common Stock (which may consist of Shares or any other shares of
Common Stock owned by Xxxxxx) having a value equal to the withholding tax
obligations required to be withheld by law, or (c) such other payment method
that shall be satisfactory to USA.
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2.
Modification. Except
as otherwise specifically set forth in Paragraph 1, the Employment Agreement
shall not be amended or modified in any respect whatsoever and shall continue in
full force and effect.
3. Effective
Time. The amendments to the Employment Agreement made in
Paragraph 1 hereof shall be effective from and after the date
hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Second Amendment on the
day and year first above written.
/s/Xxxxxx X. Xxxxxx,
Xx.
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XXXXXX
X. XXXXXX, XX.
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USA
TECHNOLOGIES, INC.
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By:
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/s/Xxxxxxx X.
Xxxxxxx
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Xxxxxxx
X. Xxxxxxx,
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President
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