THIRD AMENDMENT TO EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit
10.29
THIRD AMENDMENT TO
EMPLOYMENT AND
NON-COMPETITION
AGREEMENT
This
Third Amendment is made on the 22nd day of September 2008, by and between XXXXX
X. XxXXXXX (“XxXxxxx"), and USA TECHNOLOGIES, INC., a Pennsylvania corporation
("USA").
Background
USA and
XxXxxxx entered into an Employment And Non-Competition Agreement dated April 12,
2005, a First Amendment thereto dated May 11, 2006, and a Second 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.
Amendment.
A. The
following new subparagraph (f) shall be added to Section 2. Compensation and
Benefits of the Agreement:
(f) On
the date of the execution and delivery by each of USA and XxXxxxx of this Third
Amendment, USA shall issue to XxXxxxx 25,000 shares of Common Stock as a bonus.
These shares shall vest as follows: 8,000 on the date of this Agreement; 8,000
on January 15, 2009; and 9,000 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. XxXxxxx 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 XxXxxxx, XxXxxxx shall satisfy USA’s withholding tax
obligations in connection with such shares by either (a) the delivery by XxXxxxx
to USA of a cash payment equal to the amount of the withholding tax obligations,
or (b) the assignment and transfer by XxXxxxx to USA of that number of shares of
Common Stock (which may consist of the vested shares issued hereunder as a bonus
to XxXxxxx or any other shares of Common Stock owned by XxXxxxx) 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.
C.
Subsection I of Section 2.A. Long-Term Equity
Compensation Plan of the Agreement is hereby deleted and the following
new Subsection I substituted in its place:
X.
XxXxxxx 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 XxXxxxx, XxXxxxx shall satisfy
USA’s withholding tax obligations in connection with such Shares by either (a)
the delivery by XxXxxxx to USA of a cash payment in the amount of the
withholding tax obligations, or (b) the assignment and transfer by XxXxxxx to
USA of that number of shares of Common Stock (which may consist of Shares or any
other shares of Common Stock owned by XxXxxxx) 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.
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 Third Amendment on the
day and year first above written.
/s/Xxxxx X.
XxXxxxx
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XXXXX
X. XxXXXXX
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USA
TECHNOLOGIES, INC.
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By:
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/s/Xxxxxx X. Xxxxxx,
Xx.
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Xxxxxx
X. Xxxxxx, Xx.,
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Chief
Executive Officer
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