Attached files
| file | filename |
|---|---|
| EX-99.1 - EXHIBIT 99.1 - CANTALOUPE, INC. | ex99_1.htm |
| EX-10.1 - EXHIBIT 10.1 - CANTALOUPE, INC. | ex10_1.htm |
| EX-3.II - EXHIBIT 3(II) - CANTALOUPE, INC. | ex3ii.htm |
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
Current
Report Pursuant to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
report (Date of earliest event reported): February 4, 2010
USA
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Pennsylvania
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001-33365
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23-2679963
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(State
or other jurisdiction of incorporation or organization)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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100
Deerfield Lane, Suite 140
Malvern,
Pennsylvania 19355
(Address
of principal executive offices and zip code)
Registrant’s
telephone number, including area code: 610-989-0340
n/a
Former
name or former address, if changed since last report
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry into a Material Definitive Agreement
On
February 4, 2010, USA Technologies, Inc. (the “Company”), and Shareholder
Advocates For Value Enhancement, Bradley M. Tirpak, and Craig W. Thomas (jointly
and severally, the “SAVE Group”), and each of the directors of the Company,
entered into a Settlement Agreement (the “Settlement Agreement”) to settle the
proxy contest pertaining to the election of directors to the Company’s Board of
Directors (the “Board”) at the Company’s annual meeting of shareholders
originally scheduled for December 15, 2009 and to be held, as postponed, on June
15, 2010 (the “2010 Annual Meeting”).
Pursuant
to the Settlement Agreement, among other things:
- The
size of the Board was increased from 8 to 9 members creating a vacancy on the
Board.
- The
Company accepted the resignation of William L. Van Alen, Jr., as a director
effective February 4, 2010, resulting in another vacancy on the
Board.
- Peter
A. Michel and Bradley M. Tirpak, nominees of the SAVE Group, were appointed by
the Board to fill the two vacancies. The Board also appointed Mr. Tirpak to
serve on the Nominating Committee and appointed Mr. Michel to serve on the Audit
Committee and the Compensation Committee.
- If
the Company does not (i) achieve positive earnings before interest, taxes,
depreciation and amortization (“EBITDA”) in the quarter ending December 31, 2010
and (ii) have at least 100,000 connections to its network as of December 31,
2010, the SAVE Group shall have the right to name a third nominee to serve on
the Board, and the Company shall cause one director who is not a SAVE Group
nominee to resign or be removed as a director, and the number of directors shall
remain at nine.
- The
Company amended certain provisions of its By-Laws, as further set forth under
item 5.03 below. The Company agreed that such By-law amendments shall
not be repealed, amended or modified by the Board unless (i) at least 66% of the
independent directors of the corporation then in office shall have approved such
amendment, repeal or modification, and (ii) during the period of time up to and
including the June 2012 annual meeting of shareholders that any SAVE Nominee is
a member of the Board, at least one SAVE Nominee approves such repeal, amendment
or modification.
- At
the 2010 Annual Meeting to be held on June 15, 2010, the Company will nominate
three classes of directors consisting of three Class I directors, three Class II
directors, and three Class III directors. Mr. Michel shall be nominated as a
Class I director and Mr. Tirpak shall be nominated as a Class II director. The
initial term of the Class I directors shall be one year, the initial term of the
Class II directors shall be two years, and the initial term of the Class III
directors shall be three years.
- At
the 2011 annual meeting of shareholders, only the three Class I directors shall
be elected.
- At
the 2012 annual meeting of shareholders, all of the directors of the Company
shall stand for election as one class (notwithstanding the initial term of the
Class III directors or the Class I directors elected at the 2011 annual
meeting), the composition of the board shall consist of only one class of
directors and upon election, all directors shall serve for one year
terms.
- The
SAVE Group has irrevocably withdrawn the notice to the Company of the intention
to nominate three individuals at the 2010 Annual Meeting, and has agreed to
immediately cease all efforts related to their proxy solicitation with respect
to the 2010 Annual Meeting.
- Through
December 31, 2011 (or an earlier date upon the occurrence of certain events),
each member of the SAVE Group and the SAVE Group nominees to the Board will not,
directly or indirectly, take certain actions, including any of the following
without the consent of the Board: (i) collectively acquire or seek to acquire,
in the aggregate, more than ten percent (10%) of the then outstanding voting
securities of the Company; (ii) solicit proxies, become a participant in a
solicitation, or join in or participate in any group soliciting proxies in each
case with respect to any voting securities of the Company in opposition to the
recommendation or proposal of the Board with respect to the election of
directors, any shareholder proposals to be voted on at an annual or special
meeting of shareholders, the amendment of any provision of the Company’s
articles of incorporation or By-laws, or a change in control of the Company;
(iii) nominate persons for election to, or seek to remove any person from, the
Board or propose any other business at any annual or special meeting of
shareholders; (iv) seek to initiate or join in, directly or indirectly, any
merger, consolidation, recapitalization, liquidation or other business
combination that would result in a change in control of the Company; or (v) seek
to become officers or the Chairman of the Board of the Company; provided,
however, that the Settlement Agreement shall not prevent any member of the SAVE
Group or any SAVE Group nominees from, among other things, exercising his rights
and fiduciary duties as a director or voting any Company shares owned by him in
his discretion.
- The
Company and the SAVE Group agreed to a mutual release of claims, including those
arising in respect of, or in connection with, the proxy contest relating to the
2010 Annual Meeting.
- The
Company and the SAVE Group voluntarily dismissed with prejudice the litigation
pending in the United States District Court for the Eastern District of
Pennsylvania entitled Bradley M. Tirpak and Craig
W. Thomas d/b/a Shareholder Advocates For Value Enhancement vs. USA
Technologies, Inc., et al., Civil Action No. 09-5920.
- The
Company reimbursed the SAVE Group for actual out-of-pocket expenses in the
aggregate amount of $1,160,441 incurred in connection with the proxy contest of
which $450,000 will be contributed by the Company’s insurance
carrier.
A copy of
the Settlement Agreement is filed with this Form 8-K and attached hereto as
Exhibit 10.1. The foregoing description of the Settlement Agreement is qualified
in its entirety by reference to the full text of the Settlement Agreement, which
is incorporated herein by reference. On February 5, 2010, the Company and SAVE
issued a joint press release announcing the signing of the Settlement Agreement.
A copy of the press release is filed with this Form 8—K and attached hereto as
Exhibit 99.1.
Item
5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers
(b) William L. Van Alen,
Jr., resigned as a director of the Company effective February 4, 2010. Mr. Van
Alen had served on the Board since 1993, and had been a member of the Audit
Committee and Compensation Committee of the Board of Directors.
(d) On February 4, 2010,
pursuant to the Settlement Agreement, the Board appointed Bradley M. Tirpak and
Peter A. Michel as directors of the Company. Mr. Tirpak was appointed to serve
on the Nominating Committee and Mr. Michel was appointed to serve on the Audit
Committee and Compensation Committee.
Messrs.
Tirpak and Michel will, for their service on the Board and committees of the
Board, receive the same compensation payable by the Company to its other
non-employee directors for their service on the Board and committees and will be
provided with the same indemnification/reimbursement of expenses made available
by the Company to its other non-employee directors.
Pursuant
to the Settlement Agreement, the Board has agreed to nominate Mr. Michel as a
Class I director and Mr. Tirpak as a Class II director for election at the 2010
Annual Meeting, and recommend that the shareholders vote to elect them. As
described in the Settlement Agreement and in Item 1.01 above, the SAVE Group and
Mr. Michel have also agreed to certain other arrangements, including the
standstill provisions described in Section 1.01.
As
described in the Settlement Agreement and in Item 1.01 above, the Company
reimbursed the SAVE Group for their actual out-of-pocket expenses incurred in
connection with the proxy contest, a portion of which will be contributed by the
Company’s insurance carrier.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
(a)
On February 4, 2010, the Board approved various amendments to the Company’s
Bylaws which became effective immediately. These amendments include the
following:
- increasing
the number of individuals serving on the Board from eight to nine.
- providing
that the Board shall consist of one class of directors after December 31, 2011,
and that the term of office of any director whose term would otherwise extend
beyond the 2012 annual meeting of shareholders of the Company shall expire at
such annual meeting.
- providing
that the 2010 Annual Meeting shall be held on June 15, 2010, the 2011 annual
meeting shall be held on June 13, 2011, and thereafter each annual meeting shall
be held on a date to be set by the Board which shall be no earlier than June 8
and no later than June 30 of each calendar year. The annual meeting shall be
held to elect directors and to transact such other business as may be properly
brought before the annual meeting.
- providing
that in addition to the Chairman, Chief Executive Officer, and Board of
Directors, special shareholder meetings may also be called by the holders of at
least 20% of the combined voting power of the then outstanding shares entitled
to vote at such meeting; provided, that a special shareholder’s meeting may not
be called by any shareholder or shareholders for the purpose of electing or
removing any director or directors of the Company.
- providing
that the Bylaw amendments adopted by the Board as part of the Settlement
Agreement may not be amended, repealed or modified by the board of directors
unless at least 66% of the independent directors shall have approved such
amendment, repeal or modification and, through the date of the 2012 annual
meeting of shareholders, if a SAVE Group nominee is then serving on the Board,
unless at least one SAVE Group nominee shall also have approved such amendment,
repeal or modification.
The
foregoing summary is qualified in its entirety by reference to the full
amendments to the Bylaws which are attached as Exhibit 3(ii) to this Form 8-K
and are incorporated herein by reference.
Item
5.05. Amendments to the Registrant’s Code of Ethics or Waiver of a Provision of
the Code of Ethics
On
February 4, 2010, the Company approved an amendment (the “Amendment”) to its
Code of Business Conduct and Ethics which had been adopted on April 11, 2006
(the “Code”). The Amendment clarifies and amends the definition of confidential
information set forth in the Code. The Amendment also states that non-employee
directors of the Company are prohibited from contacting or communicating with
the Company’s customers, suppliers or business partners without prior written
approval of the Board of Directors of the Company. The foregoing summary is
qualified by reference to the Amendment which is attached as Exhibit “D” to the
Settlement Agreement which is attached as Exhibit 10.1 to this Form
8-K.
Item
9.01. Financial Statements and Exhibits
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Exhibit
3(ii)
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Amendments
to Bylaws effective February 4,
2010
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Exhibit
10.1
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Settlement
Agreement dated February 4, 2010 by and among USA Technologies, Inc.,
Shareholder Advocates For Value Enhancement, Bradley M. Tirpak, Craig W.
Thomas, and certain other parties
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Exhibit
99.1
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Press
Release dated February 5, 2010
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SIGNATURES
Pursuant
to the Securities Exchange Act of 1934, the Company has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
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USA
TECHNOLOGIES, INC.
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Dated:
February 5, 2010
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By:
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/s/ George R. Jensen,
Jr.
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George
R. Jensen, Jr.,
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Chief
Executive Officer
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Index to
Exhibits
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Exhibit No.
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Description of Exhibit
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Amendments
to Bylaws effective February 4, 2010
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Settlement
Agreement dated February 4, 2010 by and among USA Technologies, Inc.,
Shareholder Advocates For Value Enhancement, Bradley M. Tirpak, Craig W.
Thomas, and certain other parties
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Press
Release dated February 5, 2010
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