Exhibit 10.1
THIS DEBENTURE AND THE COMMON STOCK ("SHARES") ISSUABLE UPON CONVERSION OF THIS
DEBENTURE (COLLECTIVELY THE "SECURITIES") HAVE NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE "SEC") UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES COMMISSION OF
ANY STATE UNDER ANY STATE SECURITIES LAW. THEY ARE BEING OFFERED AND SOLD
PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION S ("REGULATION S")
PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN
REGULATION S) DURING THE RESTRICTED PERIOD, AND THEREAFTER ONLY IF THESE
SECURITIES ARE REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, OR
SUCH OFFERS, SALES AND TRANSFERS ARE MADE PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
Debenture Certificate No. U.S. $
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USA TECHNOLOGIES, INC.
6% CONVERTIBLE DEBENTURE DUE JUNE 22, 2002
FOR VALUE RECEIVED, USA Technologies, Inc., a Pennsylvania corporation
(the "Company") promises to pay to ("Purchaser"), or any
subsequent registered holder hereof (the "Holder"), the principal sum of
U.S. Dollars (U.S. $ ), together with interest on the
principal sum outstanding at the rate of six (6%) percent per annum payable in
U.S. Dollars. Accrual of interest on this Debenture shall commence on the date
hereof and shall continue to accrue until the Maturity Date or if earlier, the
Conversion Date or Redemption Date, as the case may be. This Debenture is being
issued pursuant to the Regulation S Subscription Agreement between the Holder
and the Company ("Subscription Agreement"), and this Debenture is subject to all
of the terms and conditions thereof, all of which are hereby incorporated by
reference.
Section 1. Payment of Debenture. Subject to all of the terms and
conditions hereof, the Company shall pay to the Holder the entire principal
amount hereof and all interest accrued thereon on June 22, 2002 (the "Maturity
Date"). All interest or principal shall be paid to the person and at the address
in whose name this Debenture is registered on the records of the Company on the
business day immediately preceding the applicable payment date. As provided
herein, the principal and interest due hereunder may be converted into or
redeemed for shares of Common Stock, no par value, of the Company ("Shares"),
and such Shares shall be in the name of and forwarded to the person and at the
address in whose name this Debenture is registered on the business day
immediately preceding the issuance date.
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Section 2. Sale, Transfer or Exchange. This Debenture may be
transferred, exchanged or converted only in compliance with the Act, including
Regulation S and any applicable state securities laws. Any Holder of this
Debenture, by acceptance hereof, agrees to the representations, warranties and
covenants herein and in the Subscription Agreement. Prior to due presentment to
the Company for transfer of this Debenture, the Company and any agent of the
Company may treat the person in whose name this Debenture is duly recorded on
the Company's records as the owner hereof for the purpose of receiving payment
as herein provided and for all other purposes.
Section 3. Holder Conversion.
A. Right to Convert; Conversion Rate. The Holder of this Debenture
shall be entitled to convert the entire principal amount of this Debenture at
any time during the period beginning forty-five (45) days after the date hereof
and prior to the Maturity Date into that number of Shares calculated in
accordance with the following formula:
Number of Shares issued upon Conversion = Principal (+ Interest, if
applicable)/Conversion Price, where
Principal = The Principal amount of the Debenture.
Interest = Principal x (N/365) x .06, where
N = the number of days between the date hereof and the Conversion Date
for the Debenture.
Conversion Price = the lesser of (x) 100% of the average Closing Bid
Price, as that term is defined below, of the Shares for the five (5) trading
days immediately preceding the date hereof (the "Fixed Conversion Price"), or
(y) 65% of the average Closing Bid Price, as that term is defined below, of the
Shares for the five (5) trading days immediately preceding the day prior to the
Conversion Date (the "Variable Conversion Price").
For purposes hereof, the term "Closing Bid Price" shall mean the
closing bid price on the market as reported by the OTC Bulletin Board or
NASDAQ's National Market System or Small Capitalization System (NASDAQ) or
American Exchange Emerging Company Marketplace or if then traded on a different
national securities exchange, the closing sales price on the principal national
securities exchange on which it is so traded and if not available, the mean of
the daily high and low sales prices on such securities exchange on which it is
traded.
B. Mechanics of Conversion. In order to convert the Debenture into
Shares, the Holder shall (i) fax a copy of an executed notice of conversion
("Notice of Conversion") to the Company at the office of the Company, which
notice shall specify that the Debenture shall be converted and shall contain a
calculation of the number of Shares to be issued in connection with the
conversion, and (ii) surrender the original Debenture to a common courier for
delivery to the office of the Company; provided, however, that the Company shall
not be obligated to issue certificates evidencing the Shares issuable upon such
conversion unless either the original Debenture is delivered to the Company, or
the Holder notifies the Company that such Debenture have been lost, stolen or
destroyed and the Holder has complied with Section 3.D. below. Upon receipt by
the Company of a facsimile copy of a Notice of Conversion, the Company shall
immediately send, via facsimile, confirmation of receipt of the Notice of
Conversion to Holder which shall specify that the Notice of Conversion has been
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received and the name of a contact person at the Company whom the Holder should
contact regarding information related to the conversion. In the case of a
dispute as to the calculation of the Conversion Price or any other issues
related thereto, the Company shall promptly issue the number of Shares that are
not disputed. The Company shall submit the disputed calculations to its
independent auditors within two (2) business days of receipt of Holder's Notice
of Conversion. The Company shall cause the auditors to perform the calculations
and notify the Company and Holder of the results no later than five (5) business
days from the time such accountant receives the disputed calculations. The
auditor's calculation shall be deemed conclusive absent manifest error.
C. Interest. Upon receipt of the Notice of Conversion, the Company
shall at its option either pay all interest accrued on the Debenture through the
Conversion Date in U.S. Dollars, or shall issue Shares in full satisfaction of
the accrued interest. The number of Shares to be issued shall be determined
pursuant to the formula described in Section 3.A. The Company shall notify the
Holder of its decision within two (2) business days following its receipt of the
Notice of Conversion.
D. Lost or Stolen Debentures. Upon receipt by the Company of evidence
of the loss, theft, destruction or mutilation of this Debenture, and (in case of
loss, theft or destruction) indemnity or security reasonably satisfactory to the
Company, and upon surrender and cancellation of the Debenture, if mutilated, the
Company shall execute and deliver a new Debenture of like tenor and date without
charge to Holder.
X. Xxxxxxxx of Shares upon Conversion. The transfer agent or the
Company (as applicable) shall, no later than the close of business on the fifth
(5th) business day after delivery to the Company of the Debenture to be
converted (or after provision for security or indemnification, if required),
issue a certificate for the number of Shares to which the Holder shall be
entitled as aforesaid and surrender such original certificate to a common
courier for either overnight or (if delivery is outside the United States, then
two (2) day delivery) to the Holder at the address of the Holder on the books of
the Company.
F. No Fractional Shares. No fractional Shares shall be issued upon
conversion of this Debenture. If any conversion of the Debenture would create a
fractional share or a right to acquire a fractional share, such fractional
shares, on an aggregate basis, shall be disregarded and the number of Shares
issuable upon conversion shall be, on an aggregate basis, the next lower number
of whole shares.
G. Date of Conversion. The date on which conversion occurs (the
"Conversion Date") shall be deemed to be the date (utilizing Philadelphia,
Pennsylvania time) the Notice of Conversion is faxed to the Company, and,
provided, that the original Debenture is surrendered by depositing such
Debenture with a common courier, as provided above, and received by the Company
within three (3) business days from the Conversion Date. The person or persons
entitled to receive the Shares issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Shares on the
Conversion Date. If the original Debenture is not received by the Company within
three (3) business days after the Conversion Date, the Notice of Conversion, at
the Company's option, may be declared null and void.
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Section 4. Company Redemption. The Company may at its sole option, at
any time following the first annual anniversary of the date hereof and prior to
the Maturity Date, redeem this Debenture in full by notice to the Holder. Such
notice shall state that the Debenture is being redeemed by the Company and shall
contain a calculation of the number of Shares to be issued in connection with
the redemption. The date on which such notice shall be delivered to the Holder
shall be the effective date of the redemption ("Redemption Date"). The Company
shall issue to Holder that number of Shares which would have been issued to
Holder pursuant to Section 3.A. hereof, provided that the term Redemption Date
shall be substituted for the term Conversion Date in such formula. The Shares
shall be delivered to the Holder within five (5) business days following the
receipt by the Company from the Holder of this Debenture or in the case of loss,
theft, destruction, or mutilation hereof upon compliance with Section 3.D.
hereof. All interest accrued on this Debenture through the Redemption Date shall
be satisfied at the Company's option, either through the issuance of Shares
pursuant to the formula set forth in Section 3.A. or by payment thereof by the
Company to the Holder in U.S. Dollars. Such election shall be set forth in the
notice of redemption delivered to the Holder.
Section 5. Automatic Conversion. If the Debenture has not been redeemed
or converted prior to the Maturity Date pursuant to either Section 3 or Section
4 above, the entire principal amount of the Debenture shall be automatically
converted into Shares on and as of such date. The number of Shares into which
the Debenture shall be converted shall be calculated in accordance with the
formula in Section 3.A. above as if the Maturity Date were the Conversion Date
of the Debenture. All interest accrued on the Debenture through the Maturity
Date shall be satisfied, at the Company's option, either through the issuance of
Shares pursuant to the formula set forth in Section 3.A. or by payment thereof
by the Company to the Holder in U.S. Dollars. The Company shall notify the
Holder of such election within two (2) business days after the Maturity Date.
The Company shall promptly deliver the Shares and, if applicable, the interest
payment, within five (5) business days following receipt of this Debenture from
the Holder.
Section 6. Reservation of Shares Issuable Upon Conversion or
Redemption. The Company shall at all times reserve and keep available out of its
unissued Shares, solely for the purpose of effecting the conversion or
redemption of the entire principal amount of this Debenture, such number of its
Shares as shall from time to time be sufficient to effect the conversion or
redemption of this Debenture; and if at any time the number of authorized but
unissued Shares shall not be sufficient to effect the conversion or redemption
of this Debenture, the Company will immediately take such corporate action as
may be necessary to increase its authorized but unissued Shares to such number
of shares as shall be sufficient for such purpose. If such action shall not be
taken within sixty (60) days after notice from the Holder, then the Company
shall only at the option of the Holder deliver full payment in U.S. Dollars of
the outstanding principal amount of this Debenture and all accrued interest
thereon to the Holder within thirty (30) days following the expiration of such
sixty (60) day period.
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Section 7. Adjustment to Conversion Price.
A. Adjustment to Fixed Conversion Price Due to Stock Split, Stock
Dividend, Etc. If at any time when the Debenture is issued and outstanding, the
number of outstanding Shares is increased by a stock split, stock dividend, or
other similar event, the Fixed Conversion Price shall be proportionately
reduced, or if the number of outstanding Shares is decreased by a combination or
reclassification of shares, or other similar event, the Fixed Conversion Price
shall be proportionately increased.
B. Adjustment to Variable Conversion Price. If, at any time when the
Debenture is issued, the number of outstanding Shares is increased by a stock
split, stock dividend, or other similar event, which event shall have taken
place during the reference period for determination of the Conversion Price for
any conversion or redemption of the Debentures, then the Variable Conversion
Price shall be calculated giving appropriate effect to the stock split, stock
dividend, combination, reclassification or other similar event for all five (5)
trading days immediately preceding the date prior to Conversion Date, Redemption
Date, or Maturity Date, as the case may be.
C. Adjustment Due to Merger, Consolidation, Etc. If at any time when
the Debenture is issued, there shall be any merger, consolidation, exchange of
shares, recapitalization, reorganization, or other similar event, as a result of
which Shares shall be changed into the same or a different number of shares of
another class or classes of stock or securities of the Company or another entity
or there is a sale of all or substantially all the Company's assets, then the
Holder shall thereafter have the right to receive upon conversion or redemption
of the Debenture, upon the basis and upon the terms and conditions specified
herein and in lieu of the Shares immediately theretofore issuable upon
conversion or redemption, such Common Stock, securities and/or other assets
which the holder would have been entitled to receive in such transaction had the
Debenture been converted and redeemed immediately prior to such transaction, and
in such case appropriate provisions shall be made with respect to the rights and
interests of the Holders to the end that the provisions hereof (including,
without limitation provisions for adjustment of the Conversion Price and of the
number of Shares issuable upon conversion or redemption of the Debenture) shall
thereafter be applicable, as nearly as may be practicable in relation to any
securities thereafter deliverable upon the exercise hereof. The Company shall
not effect any transaction described in this subsection 7.C. unless it first
gives fifteen (15) days prior notice of such merger, consolidation, exchange of
shares, recapitalization, reorganization, or other similar event (during which
time the Holder shall be entitled to convert its Debentures into Shares).
Section 8. Exercise. The Holder hereof acknowledges that the Debenture
has been issued pursuant to Regulation S promulgated under the Act and neither
the Debenture nor the Shares have been registered under the Act or under any
state securities law. This Debenture may not be exercised by or on behalf of any
U.S. Person unless the Shares are registered under the Act or an exemption from
such registration is available. As required by Regulation S, at the time of any
exercise hereof, the Holder must deliver to the Company a written certification
that the Holder is not a U.S. Person and the Debenture is not being exercised on
behalf of a U.S. Person, or a written opinion of counsel, which opinion is
satisfactory to the Company, to the effect that the Debenture and the Shares
delivered upon the exercise of the Debenture have been registered under the Act
or are exempt from registration thereunder.
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This Debenture may not be exercised within the United States and the
Shares may not be delivered within the United States upon exercise, other than
in connection with offerings deemed to meet the definition of Offshore
Transactions pursuant to paragraph (i)(3) of Rule 902 of Regulation S, unless
registered under the Act or an exemption from such registration is available. In
this regard, as a condition of the issuance of Shares upon the conversion or
redemption of the Debenture, the Holder shall execute and deliver to the Company
such representations, warranties, and covenants, that may be required by
applicable federal and state securities law, or that the Company determines is
reasonably necessary in connection with the issuance of such Shares. In
addition, the certificates representing the Shares shall contain such legends,
or restrictive legends, or be subject to such stop transfer instructions, as
shall be required by applicable Federal or state securities laws, or as shall be
reasonably required by the Company or its transfer agent.
It is the intent of Holder that upon the conversion of the Debenture by
Holder pursuant to Section 3, the issuance of the Shares to Holder would be
pursuant to Regulation S. If on the Conversion Date the issuance of the Shares
by the Company to the Holder would have qualified under Regulation S as in
effect on the date hereof but does not qualify thereunder on such date because
of an amendment to Regulation S promulgated after the date hereof, the Company
shall use its best efforts to register the Shares under the Act for resale by
the Holder. Such registration shall be at the cost and expense of the Company.
Except as specifically described in this paragraph, the Company shall have no
obligations whatsoever to register the Shares under the Act.
Section 9. No Voting Rights. Except as specifically provided herein,
this Debenture shall not entitle the Holder hereof to any of the rights of a
stockholder of the Company, including without limitation, the right to vote, to
receive dividends and other distributions, or to receive any notice of, or to
attend, meetings of stockholders or any other proceedings of the Company.
Section 10. Status of Redeemed or Converted Debentures. Upon the first
to occur of the Conversion Date, Redemption Date, or Maturity Date, as the case
may be, this Debenture shall no longer be deemed to be outstanding and all
rights hereof, shall forthwith terminate as of such date except only the right
of the Holder hereof to receive Shares in exchange for such Debenture and, if
applicable, a cash payment of any accrued interest.
Section 11. Events of Default. (i) Upon the occurrence of and during
the continuation of an Event of Default (as defined below), the Company shall
pay to the Holder an amount equal to the sum of (x) the unpaid principal amount
of this Debenture plus (y) the accrued and unpaid interest on the unpaid
principal amount of this Debenture to the date of payment, and such amounts
shall immediately become due and payable, all without demand, presentment, or
notice, all of which hereby are expressly waived, together with all costs,
including, without limitation, reasonable legal fees and expenses of collection,
and the Holder shall be entitled to exercise all other rights and remedies
available at law or equity.
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If the Company fails to pay any amounts due pursuant to this Section 11
with five (5) business days of such amounts being due and payable, then the
Holder shall have the right at any time, so long as the Company remains in
default, to require the Company, upon written notice, to immediately issue, in
lieu of such amounts, the number of Shares equal to the amounts owned divided by
the Conversion Price then in effect.
The Company shall be required promptly upon its knowledge of an Event
of Default hereunder to give notice of such Event of Default to the Holder
hereof.
An "Event of Default" shall mean the following:
A. Conversion. If the Company fails to issue Shares to Holder upon
conversion of this Debenture by the Holder in accordance with the terms of this
Debenture, fails to transfer any certificate for Shares issued to the Holder
upon conversion of this Debenture and when required by this Debenture or fails
to remove any restrictive legend on any certificate or any stop transfer order
on any Shares issued to the Holder upon conversion of this Debenture as and when
required in accordance with applicable law and by this Debenture or any
Subscription Agreement by and by and between Company and Holder, and any such
failure shall continue uncured for five (5) business days;
B. Breach of Covenant. If the Company breaches any material or other
material terms or condition of this Debenture (other than as specifically
provided in subsection 11.A. hereof), or any Subscription Agreement by and
between Company and Holder (including the failure to have enough Shares
available for issuance upon conversion), and the breach of which would have a
material adverse effect on the Company or the prospects of the Company or a
material adverse effect on the Holder or the rights of the Holder with respect
to this Debenture or the Shares issuable upon conversion of this Debenture, and
such breach continues for a period of five (5) business days after written
notice thereof to the Company from the Holder;
X. Xxxxxx of Representations and Warranties. Any representation or
warranty of the Company made herein or in any agreement, statement or
certificate given in writing pursuant hereto or in connection herewith
(including, without limitation, any Subscription Agreement by and between
Company and Holder), shall be false or misleading in any material respect when
made and the breach of which would have a material adverse effect on the Company
or the prospects of the Company or a material adverse effect on the Holder or
the rights of the Holder with respect to this Debenture or the Shares issuable
upon conversion of this Debenture.
D. Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceeding for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against the Company.
Section 12. Governing Law. This Debenture shall be governed by and
construed in accordance with the laws of the United States and the Commonwealth
of Pennsylvania without giving effect to the principles of conflicts of laws.
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Section 13. Business Day Definition. For purposes hereof, the term
"business day" shall mean any day on which banks are generally open for business
in the Commonwealth of Pennsylvania, USA excluding any Saturday and Sunday.
Section 14. Notices. Any notices or other communication required or
permitted to be given hereunder shall be given as provided herein or delivered
against receipt, if to (i) the Company at 000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxx
00000, Attn.: Xxxxxx X. Xxxxxx, Xx., Chief Executive Officer, Telephone No.
(000) 000-0000, Telecopy No. (000) 000-0000; or (ii) the Holder of this
Debenture, to such holder at (or to such
other address as the party shall have furnished in writing as its new address in
accordance with the provisions of this Section 13). Any notice or other
communication may be made by facsimile and delivery shall be deemed given,
except as otherwise required herein, at the time of transmission of said
facsimile. Any notice given on a day that is not a business day shall be
effective upon the next business day.
Section 15. Waiver of any Breach to be in Writing. Any waiver by the
Company or the Holder hereof of a breach of any provision of the Debenture shall
not operate as, or be construed to be a waiver of any breach of such provision
or any breach of any other provision of the Debenture. The failure of the
Company or the Holder hereof to insist upon strict adherence to any term of the
Debenture on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any term of the Debenture. Any waiver must be in writing.
Section 16. Unenforceable Provisions. If any provision of this
Debenture is invalid, illegal or unenforceable, the balance of this Debenture
shall remain in effect, and if any provision is applicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons and
circumstances.
Section 17. Withholding. The Company shall be entitled to withhold all
payments of principal and interest on this Debenture for any amounts required to
be withheld under the applicable provisions of the Internal Revenue Code of the
United States of America, or other applicable laws, at the time of such
payments. Holder shall, prior to any transfer hereof, deliver to the Company, a
fully completed Form W-8 for such transferee if required under applicable law.
The Holder shall pay any other taxes, charges or levies in connection with the
issuance and transfer thereof.
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed by an officer thereunto duly authorized.
USA TECHNOLOGIES, INC.
Dated: June 23, 1997 By:
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Xxxxxx X. Xxxxxx, Xx., Chief Executive Officer
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