Exhibit 10.4.4
FIFTH AMENDMENT TO EMPLOYMENT AND
NON-COMPETITION AGREEMENT
This Fifth Amendment is made on the 20 day of April 2004, by and between
HAVEN XXXXX XXXXX, XX. ("Xxxxx"), and USA TECHNOLOGIES, INC., a Pennsylvania
corporation ("USA").
Background
USA and Xxxxx entered into an Employment And Non-Competition Agreement
dated May 1, 1994, a First Amendment thereto dated May 1, 1995, a Second
Amendment thereto dated March 20, 1996, a Third Amendment thereto dated February
22, 2000, and a Fourth Amendment thereto dated April 15, 2002 (collectively, the
"Agreement"). As more fully set forth herein, the parties desire to amend the
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. Subparagraph A. of Section 1. Employment. is hereby deleted and the
following new subparagraph A. is substituted in its place:
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A. USA shall employ Xxxxx as Senior Vice President, Research &
Development, commencing on the date hereof and continuing through June 30,
2005 (the "Employment Period"), and Xxxxx 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 June 30, 2005 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. The Company
will deliver to Xxxxx an incentive cash compensation payment of $60,000
upon Xxxxx' signing of this Fifth Amendment. If during the Employment
Period a USA Transaction (as such term is defined in the Employment
Agreement of Xxxxxx X. Xxxxxx, Xx.) shall occur, then Xxxxx may upon
thirty days prior notice to the Company, terminate the Employment Period.
Upon such termination by Xxxxx, neither party shall have any further
duties or obligations hereunder, provided, however, that Xxxxx'
obligations under Sections 5 and 6 hereof shall survive any such
termination.
B. The following new subparagraph C. shall be added to Section 1.
Employment. of the Agreement:
C. In the event that Xxxxx shall agree to extend the Employment Period to
June 30, 2006 (provided that such extension is accomplished at anytime
between July 1, 2004 and December 31, 2004), Xxxxx shall receive from USA
an incentive cash compensation payment of $70,000.
C. Subparagraph A. of Section 2. Compensation and Benefits. of the
Agreement is hereby deleted and the following new subparagraph A. is hereby
substituted in its place:
A. In consideration of his services rendered, commencing January 1, 2004,
USA shall pay to Xxxxx a base salary of $165,000 per year during the
Employment Period, subject to any withholding required by law. Xxxxx" base
salary may be increased from time to time in the discretion of the Board
of Directors.
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D. The following new subparagraph F. shall be added to Section 2.
Compensation and Benefits. of the Agreement:
F. From and after the date of this Fifth Amendment and during the
Employment Period, USA shall pay to Xxxxx (i) the sum of $5,000 for
any new patent application filed on behalf of USA during the
Employment Period for which Xxxxx is listed as the inventor; and
(ii) the further sum of $5,000 upon the grant and issuance during
the Employment Period of any such patent application; and (iii) the
sum of $5,000 upon the grant and issuance during the Employment
Period of any pending patent application that was filed on behalf of
USA at any time prior to the date of this Fifth Amendment and
whether or not Xxxxx is listed as the inventor. Any amount due to
Xxxxx by USA shall at the option of USA be payable in either cash or
USA Common Stock; provided that any such amount shall be subject to
and reduced by any applicable tax withholding. The issuance by USA
of any USA Common Stock to Xxxxx shall at the option of USA (i) be
registered under the Securities Act of 1933, as amended, pursuant to
a Form S-8 registration statement, all at the sole cost and expense
of USA; or (ii) represent restricted stock issued as part of a
private placement by USA and in such event Xxxxx shall participate
in the offering on the same terms as any other investor (including
any registration rights); or (iii) represent a separate private
placement of restricted Common Stock involving only Xxxxx, provided
that the stock shall have standard "piggyback" registration rights.
2. Modification. Except as otherwise specifically set forth in Paragraph
1, the Agreement shall not be amended or modified in any respect whatsoever and
shall continue in full force and effect.
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3. Capitalized Terms. Except as specifically provided otherwise herein,
all capitalized terms used herein shall have the meanings ascribed to them in
the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment
on the day and year first above written.
USA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
President
/s/ Haven Xxxxx Xxxxx, Xx.
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HAVEN XXXXX XXXXX, XX.
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