SEC Comment Letter for CANTALOUPE, INC. (CTLP, CTLPP) (CIK 0000896429) (CTLP) — Apr 15, 2020
CANTALOUPE, INC. (CTLP, CTLPP) (CIK 0000896429)
Date: April 15, 2020 · CIK: 0000896429 · Accession: 0000000000-20-003231
AI Filing Summary & Sentiment
File numbers found in text: 001-33365
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE April 14 , 2020 Donald W. Layden, Jr. President and Chief Executive Officer USA Technologies , Inc. One Broadway, 14th Floor Cambridge, MA 02142
Re: USA Technologie s, Inc. DEFA 14A preliminary proxy statement filing s made on Schedule 14A Filed on February 21 and April 14 , 2020 by USA Technologie s, Inc. File No. 001-33365
Dear M r. Layden ,
We have reviewed the above -captioned filing s, and have the following comments. Some of our comments may ask for additional information so that we may better understand the disclosure.
Please respond to this letter by amending the filing s and/or by providing the requested information. If you do not believe our comments apply to your facts and circumstances , and/or do not believe an amendment is appropriate, please tell us why in a written response. After reviewing any amendment s to the filing s or any information provide d in response to these comments, we may have additional comments.
Definitive Additional Materials filed under cover of Schedule 14A on April 14, 2020
Investor Presentation April 2020
1. The disclosure indicates “USAT and HEC reached [a] tentative agreement ”, but then asserts that “HEC refused to honor the agreement. ” The contention that HEC “refused to honor ” a tentative agreement suggests HEC defaulted on an obligation . Given that the agreement was not finalized according to the registrant ’s own characterization, please confirm that USAT will refrain from creating the implication in future filings that HEC breached a contract .
2. USAT represents that HEC has demanded the “effective control ” of the registrant ’s Board and “made clear ” that it will not settle unless it receives “control of the Company. ” The shareholder nominees, if elected, will owe fiduciary duties and otherwise be accountable to all shareholders. While HEC has proposed for election eight nominees, each of whom ha s been described as being independent from the registrant , HEC itself, as a matter of law and fact, will not be obtaining " control" of the Board or the registrant in the event that its proxy solicitation is successful. Please refrain from using this inexact formulation in future filings .
Donald W. Layden, Jr. USA Technologie s, Inc. April 14, 2020 Page 2
Definitive Additional Materials filed under c over of Schedule 14A on February 21 , 2020
Conference call and webcast to review its second quarter fiscal year 2020 financial results
3. The public remarks indicated that the “Board has remained steadfast in their position that if there is going to be a change in the majority of the board, then USAT shareholders deserve a premium for their shares to allow for a change of control. ” The reference to a "control premium" implies that HEC is in fact acquiring control of the registrant as opposed to simply exercising its rights as a stockholder to nominate and vote upon a slate of new di rectors. Given that HEC will not own a control ling position in the registrant even if its solicitati on is successful, it remains unclear why any control premium would be due. We also are unaware of any legal requirement that obligates a non -management party to pay a control premium or any proxy solicitation undertaken in compliance with Section 14(a) an d corresponding Regulation 14A in which a person soliciting proxies paid a “premium” or "control premium" to security holders in exchange for a vote in favor of their candidates. In future filings, please refrain from creating the impression that a “premium” is legally or o therwise required to be paid given the Rule 14a -9 prohibition against omissions of material fact necessary to accurately make statement s in light of the circumstances under which they are made.
We remind you that the registrant is responsible for the accuracy and adequacy of its disclosures, notwithstanding any review, comments, action or absence of action by the staff.
You may contact me at (202) 551 -3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
April 14 , 2020
Donald W. Layden, Jr.
President and Chief Executive Officer
USA Technologies , Inc.
One Broadway, 14th Floor
Cambridge, MA 02142
Re: USA Technologie s, Inc.
DEFA 14A preliminary proxy statement filing s made on Schedule 14A
Filed on February 21 and April 14 , 2020 by USA Technologie s, Inc.
File No. 001-33365
Dear M r. Layden ,
We have reviewed the above -captioned filing s, and have the following comments. Some
of our comments may ask for additional information so that we may better understand the disclosure.
Please respond to this letter by amending the filing s and/or by providing the requested
information. If you do not believe our comments apply to your facts and circumstances , and/or do
not believe an amendment is appropriate, please tell us why in a written response. After reviewing
any amendment s to the filing s or any information provide d in response to these comments, we may
have additional comments.
Definitive Additional Materials filed under cover of Schedule 14A on April 14, 2020
Investor Presentation April 2020
1. The disclosure indicates “USAT and HEC reached [a] tentative agreement ”, but then asserts
that “HEC refused to honor the agreement. ” The contention that HEC “refused to honor ” a
tentative agreement suggests HEC defaulted on an obligation . Given that the agreement was
not finalized according to the registrant ’s own characterization, please confirm that USAT
will refrain from creating the implication in future filings that HEC breached a contract .
2. USAT represents that HEC has demanded the “effective control ” of the registrant ’s Board
and “made clear ” that it will not settle unless it receives “control of the Company. ” The
shareholder nominees, if elected, will owe fiduciary duties and otherwise be accountable to
all shareholders. While HEC has proposed for election eight nominees, each of whom ha s
been described as being independent from the registrant , HEC itself, as a matter of law and
fact, will not be obtaining " control" of the Board or the registrant in the event that its proxy
solicitation is successful. Please refrain from using this inexact formulation in future filings .
Donald W. Layden, Jr.
USA Technologie s, Inc.
April 14, 2020
Page 2
Definitive Additional Materials filed under c over of Schedule 14A on February 21 , 2020
Conference call and webcast to review its second quarter fiscal year 2020 financial results
3. The public remarks indicated that the “Board has remained steadfast in their position that if
there is going to be a change in the majority of the board, then USAT shareholders deserve a
premium for their shares to allow for a change of control. ” The reference to a "control
premium" implies that HEC is in fact acquiring control of the registrant as opposed to simply
exercising its rights as a stockholder to nominate and vote upon a slate of new di rectors.
Given that HEC will not own a control ling position in the registrant even if its solicitati on is
successful, it remains unclear why any control premium would be due. We also are unaware
of any legal requirement that obligates a non -management party to pay a control premium or
any proxy solicitation undertaken in compliance with Section 14(a) an d corresponding
Regulation 14A in which a person soliciting proxies paid a “premium” or "control premium"
to security holders in exchange for a vote in favor of their candidates. In future filings,
please refrain from creating the impression that a “premium” is legally or o therwise required
to be paid given the Rule 14a -9 prohibition against omissions of material fact necessary to
accurately make statement s in light of the circumstances under which they are made.
We remind you that the registrant is responsible for the accuracy and adequacy of its
disclosures, notwithstanding any review, comments, action or absence of action by the staff.
You may contact me at (202) 551 -3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Nicholas P. Panos
Senior Special Counsel
Office of Mergers & Acquisitions
cc: Eduardo Gallardo, Esq.
James J. Moloney, Esq.