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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
U.S. WIRELESS DATA, INC.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
No Par Value Class A Common Stock
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
912 899 101
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
John M. Liviakis, 2420 "K" St., Suite 220, Sacramento, CA 95816, (916) 448-6084
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
August 6, 1997
- --------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1: and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
CUSIP No. 912 899 101 SCHEDULE 13D Page 2 of 47 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
Liviakis Financial Communications, Inc.
68-0311399
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(2) Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
State of California
---------------------------------------------------------------------
(7) Sole Voting Power
Number of -0-
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With -0-
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
-0-
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [X]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
-0-
---------------------------------------------------------------------
(14) Type of Reporting Person*
CO
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
CUSIP No.912 899 101 SCHEDULE 13D Page 3 of 47 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
John M. Liviakis
###-##-####
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(2) Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
PF
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States
---------------------------------------------------------------------
(7) Sole Voting Power
Number of 2,625,000
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 2,625,000
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,625,000
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [X]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
28.8%
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
CUSIP No. 912 899 101 SCHEDULE 13D Page 4 of 47 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
Renee A. Liviakis
###-##-####
---------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States
---------------------------------------------------------------------
(7) Sole Voting Power
Number of -0-
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With -0-
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
-0-
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [X]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
-0-
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
CUSIP No. 912 899 101 SCHEDULE 13D Page 5 of 47 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
Robert B. Prag
###-##-####
---------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
PF
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States
---------------------------------------------------------------------
(7) Sole Voting Power
Number of 875,000
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 875,000
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
875,000
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [X]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
9.6%
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
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1. SECURITY AND ISSUER.
The title of the class of equity securities to which this statement
relates is No Par Value Class A Common Stock (the "Common Stock"), issued by
U.S. Wireless Data, Inc., a Colorado corporation (the "Corporation"). The
principal offices of the Corporation are located at 4851 Independence Street,
Suite 189, Wheat Ridge, Colorado 80033.
2. IDENTITY AND BACKGROUND.
This statement is filed by Liviakis Financial Communications, Inc., a
California corporation ("LFC"), John M. Liviakis ("JML"), Renee A. Liviakis
("RAL"), and Robert B. Prag ("RBP"). LFC's principal business is as a consultant
in the areas of investor communications, financial and investor public relations
and corporate finance. LFC's principal business and principal office address is
2420 "K" Street, Suite 220, Sacramento, California 95816.
LFC's President is JML, its Senior Vice President is RBP, and its Chief
Financial Officer, Treasurer and Secretary is RAL. JML, RBP and RAL are the only
executive officers of LFC. The activities associated with these positions
constitute the principal occupation and employment of JML, RBP and RAL,
respectively. JML, RBP and RAL are LFC's only directors, and JML and RAL are its
sole stockholders. JML, RBP and RAL are citizens of the United States, and their
business address is LFC's principal business address listed above.
During the last five years, none of LFC, JML, RBP and RAL has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), and during such period none of them has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction, the
result of which was to subject such person to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to a Consulting Agreement dated as of July 25, 1997 by and
between the Corporation and LFC (the "Consulting Agreement"), the Corporation
has agreed to issue an aggregate of 300,000 shares of the Corporation's Common
Stock. Of such shares, 165,000 are to be issued on November 15, 1997, and the
balance of 135,000 shares is to be issued in monthly increments of 15,000 shares
each on the first day of each month from
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December 1997 through August 1998. Seventy-five percent of each increment of
shares so issued shall be issued to LFC, and twenty-five percent of each such
increment shall be issued to RBP. Under the Consulting Agreement, LFC undertakes
to perform certain investor communications, financial and investor public
relations, corporate finance and related services for the Corporation. A copy of
the Consulting Agreement is filed herewith as Exhibit 1.
In addition, JML and RBP have each purchased shares of Common Stock and
warrants to purchase shares of Common Stock from the Corporation in private
transactions. Pursuant to a Subscription Agreement between the Corporation and
JML entered into August 6, 1997 (the "JML Subscription Agreement"), on August 6,
1997 JML purchased, for an aggregate purchase price of $375,000, 2,625,000
shares of Common Stock and warrants first exercisable on January 15, 1998 and
expiring August 1, 2002 to purchase up to 1,200,000 additional shares of Common
Stock at an exercise price of One Cent ($0.01) per share ("Warrants"). Pursuant
to a Subscription Agreement between the Corporation and RBP entered into August
6, 1997 (the "RBP Subscription Agreement" and collectively with the JML
Subscription Agreement, the "Subscription Agreements"), on August 6, 1997 RBP
purchased, for an aggregate purchase price of $125,000, 875,000 shares of Common
Stock and Warrants to purchase up to 400,000 additional shares of Common Stock.
Copies of the JML Subscription Agreement, the RBP Subscription Agreement, and
the certificate representing Warrants are filed herewith as Exhibits 2, 3 and 4,
respectively.
This Schedule 13D is being filed to report 2,625,000 shares of the
Corporation's Common Stock owned by JML and 875,000 shares of the Corporation's
Common Stock owned by RBP. In addition, LFC, JML and RBP have the rights to
acquire 225,000, 1,200,000, and 475,000 shares of Common Stock, respectively,
pursuant to the Consulting Agreement, Warrants or both, which rights are first
exercisable or enforceable more than sixty days after the date of this Schedule
13D.
The 225,000 shares of Common Stock which LFC has the right to receive
in the future will be issued by the Corporation to LFC in consideration of
services rendered and to be rendered by LFC. 75,000 of the shares of Common
Stock which RBP has the right to receive in the future will be issued by the
Corporation to RBP in consideration of services rendered and to be rendered by
LFC.
The 2,625,000 shares of Common Stock owned by JML were acquired,
together with 1,200,000 Warrants, by JML from the Corporation at an aggregate
cost of Three Hundred Seventy-Five Thousand Dollars ($375,000). The source of
funds used in purchasing such securities was JML's personal funds.
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Page 8 of 47
The 875,000 shares of Common Stock owned by RBP were acquired, together
with 400,000 Warrants, by RBP from the Corporation at an aggregate cost of One
Hundred Twenty-Five Thousand Dollars ($125,000). The source of funds used in
purchasing such securities was RBP's personal funds.
JML and RBP believe that the source of funds to be utilized by them,
respectively, to exercise Warrants will be their respective personal funds.
4. PURPOSE OF TRANSACTION.
JML and RBP hold the shares of Common Stock presently owned by them,
respectively, for investment purposes. LFC, JML and RBP intend to acquire and
hold any shares of Common Stock they acquire, respectively, under the Consulting
Agreement or through the exercise of Warrants for investment purposes. LFC, JML,
RAL and RBP may acquire additional shares of Common Stock for investment
purposes from time to time, although they do not have any present plans to do
so.
Except as hereinafter stated, LFC, JML, RAL and RBP have no plans or
proposals which relate to or would result in: any extraordinary corporate
transaction, such as a merger, reorganization or liquidation involving the
Corporation or any subsidiary of the Corporation; the sale or transfer of a
material amount of assets of the Corporation or any of its subsidiaries; any
change in the Corporation's present Board of Directors or management; any
material change in the present capitalization or dividend policy of the
Corporation; any material change in the Corporation's business or corporate
structure; any changes in the Corporation's charter, bylaws, or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Corporation by any person; a class of securities of the
Corporation being delisted from a national securities exchange or ceasing to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; a class of equity securities of the Corporation
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended; or any similar action.
The Company has advised JML and RBP that it is seeking qualified
candidates to serve as chief executive officer, chief financial officer, vice
president-sales and non-employee directors. Pursuant to the Subscription
Agreements, the Company has agreed to afford JML and RBP the opportunity to meet
with any candidate to whom the Company proposes to offer such a position and to
offer such a position (or nomination therefor) to such a candidate only if such
candidate is approved by JML.
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Page 9 of 47
5. INTEREST IN SECURITIES OF THE ISSUER.
JML has the sole power to direct the vote or disposition of the
2,625,000 shares of Common Stock of the Corporation owned by JML. RBP has the
sole power to direct the vote or disposition of the 875,000 shares of Common
Stock of the Corporation owned by RBP.
LFC and RBP disclaim any beneficial interest in any shares of Common
Stock owned by JML or which JML has the right to acquire. LFC, JML and RAL
disclaim any beneficial interest in any shares of Common Stock owned by RBP or
which RBP has the right to acquire.
The 2,625,000 shares of Common Stock that JML owns, and as to which JML
has the sole power to direct the vote or disposition, represent approximately
28.8% of that class of securities. The 875,000 shares of Common Stock that RBP
owns, and as to which RBP has the sole power to direct the vote or disposition,
represent approximately 9.6% of that class of securities. The 3,500,000 shares
of Common Stock which JML and RBP in the aggregate presently own, and as to
which either JML or RBP has the sole power to direct the vote or disposition,
represent approximately 38.4% of that class of securities. In each case, the
calculation of the percentage of the class of Common Stock is based on the
advice received by JML and RBP from the Corporation that prior to the issuance
of shares of Common Stock to JML and RBP pursuant to the Subscription Agreements
5,616,252 shares of Common Stock were outstanding.
During the past sixty days, LFC, JML, RAL and RBP have not engaged in
any transactions in Common Stock, other than pursuant to the Subscription
Agreements and the Consulting Agreement as described herein.
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
In the Consulting Agreement, the Subscription Agreements and the
certificates representing the Warrants, the Corporation has granted to LFC, JML
and RBP certain rights to have shares of Common Stock registered under the
Securities Act of 1933, as amended.
Except as described above, there are no contracts, arrangements,
understandings or relationships between any of the persons named in Item 2 above
and any other person with respect to any securities of the Corporation.
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7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Consulting Agreement between the Corporation and LFC dated
July 25, 1997.
Exhibit 2 - Subscription Agreement between the Corporation and JML
entered into August 6, 1997.
Exhibit 3 - Subscription Agreement between the Corporation and RBP
entered into August 6, 1997.
Exhibit 4 - Certificate representing Warrants to purchase shares of the
Corporation's Common Stock.
Exhibit 5 - Joint Filing Agreement of LFC, JML, RAL and RBP pursuant to
Rule 13d-1(f).
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: August 15, 1997
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/John M. Liviakis
------------------------------------
John M. Liviakis, President
/s/John M. Liviakis
---------------------------------------
John M. Liviakis
/s/Renee A. Liviakis
---------------------------------------
Renee A. Liviakis
/s/Robert B. Prag
---------------------------------------
Robert B. Prag
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EXHIBIT "1"
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") effective as of July 25, 1997 is
entered into by and between U.S. WIRELESS DATA, INC., a Colorado corporation
(herein referred to as the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS,
INC., a California corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded through the OTC Bulletin Board; and
WHEREAS, Consultant has experience in the area of corporate finance,
investor communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult to the Company in matters concerning corporate finance and to represent
the company in investors' communications and public relations with existing
shareholders and brokers, dealers and other investment professionals as to the
Company's current and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant
to act in a consulting capacity to the Company, and the Consultant hereby agrees
to provide services to the Company commencing July 31, 1997 and ending on July
31, 1998.
2. Duties of Consultant. The Consultant agrees that it will generally
provide the following specified consulting services through it's officers and
employees during the term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an
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awareness during the term of this Agreement of the Company's plans, strategy and
personnel, as they may evolve during such period, and advise and assist the
Company in communicating appropriate information regarding such plans, strategy
and personnel to the financial community;
(d) Assist and advise the Company with respect to its (i) stockholder
and investor relations, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to investor/stockholder
relations and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred to the
Consultant by the Company); preparing press releases for the Company with the
Company's involvement and approval or reviewing press releases, reports and
other communications with or to shareholders, the investment community and the
general public; advising with respect to the timing, form, distribution and
other matters related to such releases, reports and communications; and
consulting with respect to corporate symbols, logos, names, the presentation of
such symbols, logos and names, and other matters relating to corporate image;
(f) Upon the Company's approval, disseminate information regarding the
Company to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of the Company's plans, goals and activities, and assist the Company
in preparing for press conferences and other forums involving the media,
investment community professionals and the general investment public;
(h) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the purpose of
advising the Company of the investment community implications thereof; and
(i) Otherwise perform is the Company's financial relations and public
relations consultant.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and investor public relations and communications activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required,
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Consultant and the Company agree that Consultant will perform the duties set
forth hereinabove in a diligent and professional manner. The parties acknowledge
and agree that a disproportionately large amount of the effort to be expended
and the costs to be incurred by the Consultant and the benefits to be received
by the Company are expected to occur upon and shortly after, and in any event,
within two months of the effectiveness of this Agreement. It is explicitly
understood that Consultant's performance of its duties hereunder will in no way
be measured by the price of the Company's common stock, nor the trading volume
of the Company's common stock. It is also understood that the Company is
entering into this Agreement with Liviakis Financial Communications, Inc.
("LFC"), a corporation and not any individual member of LFC, and with such,
Consultant will not be deemed to have breached this Agreement if any member,
officer or director of LFC leaves the firm or dies or becomes physically unable
to perform any meaningful activities during the term of the Agreement, provided
the Consultant otherwise performs its obligations under this Agreement.
4. Remuneration. As full and complete compensation for services
described in this Agreement, the Company shall compensate Consultant as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the Consultant
and Robert B. Prag, its Senior Vice President, hereinafter referred to as
"Prag", an aggregate of Ten Thousand Dollars ($10,000.00) cash and 300,000
unregistered, restricted shares of the Company's common stock (the "Common
Stock"). Said shares will be delivered to Consultant on the following
basis:
150,000 shares on November 15, 1997 for specific services to be rendered in
the first 60 days of the Consulting Agreement which include assisting the
company in the recruitment of officers and directors, assisting the company
in formulating its business plan and introducing the company to investment
bankers, such shares being fully paid and nonassessable when delivered to
Consultant and Prag, with the installments due on the following dates:
15,000 shares and $1,000.00 on November 15, 1997;
15,000 shares and $1,000.00 on December 1, 1997;
15,000 shares and $1,000.00 on January 1, 1998;
15,000 shares and $1,000.00 on February 1, 1998;
15,000 shares and $1,000.00 on March 1, 1998;
15,000 shares and $1,000.00 on April 1, 1998;
15,000 shares and $1,000.00 on May 1, 1998;
15,000 shares and $1,000.00 on June 1, 1998;
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Page 14 of 47
15,000 shares and $1,000.00 on July 1, 1998; and
15,000 shares and $1,000.00 on August 1, 1998.
This Compensation shall be delivered to the Consultant and Prag promptly on the
dates outlined above and shall, when issued and delivered to Consultant and
Prag, be fully paid and non-assessable. The Company understands and agrees that
Consultant has foregone significant opportunities to accept this Engagement and
that the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with Consultant. If the
Company decides to terminate this Agreement prior to July 31, 1998 for any
reason whatsoever, it is agreed and understood that Consultant or Prag will not
be requested or demanded by the Company to return any of the shares or cash paid
and delivered to it hereunder, and the Company agrees to accelerate and pay the
Consultant and Prag in full the entire balance of the 300,000 shares of Common
Stock and Ten Thousand Dollars ($10,000.00) due hereunder. One hundred (100%)
percent of the cash payable to Consultant hereunder shall be paid to Liviakis
Financial Communications, Inc. Seventy-five percent (75%) of each increment of
the Common Stock issued pursuant to this Agreement shall be evidenced by a stock
certificate(s) issued in the name of Liviakis Financial Communications, Inc. and
twenty-five percent (25%) of the Common Stock issued pursuant to this Agreement
shall be evidenced by a stock certificate(s) issued in the name of Robert B.
Prag. The Common Stock issued to the Consultant and Prag hereunder shall have
"piggyback" registration rights and will be included in the next appropriate
registration done by the Company. All registration costs shall be borne by
solely by the Company. In the event the Company for any reason, including
without limitation the unavailability of authorized but unissued shares, does
not deliver certificates representing shares of the Company's Common Stock as
and when required hereunder, the Company shall, unless the time for performance
is extended in writing by the Consultant, pay to Consultant and Prag in lieu of
delivery of the shares of Common Stock with respect to which the Company is in
default, an amount per undelivered share equal to the average closing asked
price per share of Common Stock during the five trading days ending with the day
on which the Company was required hereunder to deliver but failed to deliver
such shares of Common Stock.
4.2 Consultant and Prag (hereinafter referred to as "Consultants") acknowledge
that the shares of Common Stock to be issued pursuant to this Agreement
(collectively, the "Shares") have not been registered under the Securities
Act of 1933, and accordingly are "restricted securities" within the meaning
of Rule 144 of the Act. As such, the Shares may
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Page 15 of 47
not be resold or transferred unless the Company has received an opinion of
counsel reasonably satisfactory to the Company that such resale or transfer
is exempt from the registration requirements of that Act.
4.3 In connection with the acquisition of Shares hereunder, the Consultants
represent and warrants to the Company as follows:
(a) Consultants acknowledge that the Consultants have been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment
in the Shares, and any additional information which the Consultant has
requested.
(b) Consultants' investment in restricted securities is reasonable in
relation to the Consultants' net worth, which is in excess of ten (10)
times the Consultants' cost basis in the Shares. Consultants have had
experience in investments in restricted and publicly traded securities, and
Consultants have had experience in investments in speculative securities
and other investments which involve the risk of loss of investment.
Consultants acknowledge that an investment in the Shares is speculative and
involves the risk of loss. Consultants have the requisite knowledge to
assess the relative merits and risks of this investment without the
necessity of relying upon other advisors, and Consultants can afford the
risk of loss of his entire investment in the Shares. Consultants are (i) an
accredited investor, as that term is defined in Regulation D promulgated
under the Securities Act of 1933, and (ii) a purchaser described in Section
25102 (f) (2) of the California Corporate Securities Law of 1968, as
amended.
(c) Consultants are acquiring the Shares for the Consultants' own account
for long-term investment and not with a view toward resale or distribution
thereof except in accordance with applicable securities laws.
5. Financing "Finder's Fee". It is understood that in the event Consultant
introduces Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom Company,
or its nominees, ultimately finances or causes the completion of such financing,
Company agrees to compensate Consultant for such services with a "finder's fee"
in the amount of 2.5% of total gross funding provided by such lender or equity
purchaser, such fee to be payable in cash. This will be in addition to any fees
payable by Company to any other intermediary, if any, which shall
<PAGE> 16
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be per separate agreements negotiated between Company and such
other intermediary.
5.1 It is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender
or equity purchaser introduced to it by Consultant under this
Agreement, prior to Company receiving funds. However, Consultant
will not introduce any parties to Company about which Consultant
has any prior knowledge of questionable, unethical or illicit
activities.
5.2 Company agrees that said compensation to Consultant shall be
paid in full at the time said financing is closed. Moreover, said
compensation, will be a condition precedent to the closing of
such funding or financing and Company shall execute any and all
documents necessary to effect said compensation.
5.3 As further consideration to Consultant, Company, or its nominees,
agrees to pay with respect to any financing provided directly or
indirectly to the Company by any lender or equity purchaser
covered by this Section 5 during the period of five years from
the date of this Agreement, a fee to Consultant equal to that
outlined in section "5" herein.
5.4 Consultant will notify Company of introductions it makes for
potential sources of financing in a timely manner (within
approximately 3 days of introduction) via facsimile memo. If
Company has a preexisting relationship with such nominee and
believes such party should be excluded from this Agreement, then
Company will notify Consultant immediately of such circumstances
via facsimile memo.
6. Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company, luncheons or dinners to large groups of investment
professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, print advertisements in publications,
etc.) approved by the Company prior to its incurring an obligation for
reimbursement.
7. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials, other than those designated by
the Company to the Consultant as "confidential" or "Company private", furnished
to Consultant by
<PAGE> 17
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the Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees with
respect thereto resulting from Consultant's communication or dissemination of
any said information, documents or materials not designated by the Company to
the Consultant as "confidential" or "Company private", excluding any such claims
or litigation resulting from Consultant's communication or dissemination of
information not provided or authorized by the Company. To the extent feasible,
the Company agrees to make Consultant an additional insured on any and all
commercial liability and directors and officers liability insurance policies and
to provide Consultant with current Certificates of Insurance reflecting the
same.
8. Representations. Consultant represents that he is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of his knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of his
knowledge, Consultant is not the subject of any investigation, claim, decree or
judgment involving any violation of the SEC or securities laws. Consultant
further acknowledges that it is not a securities Broker Dealer or a registered
investment advisor. Company acknowledges that, to the best of its knowledge,
that it has not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. Company acknowledges that, to the best of its
knowledge, Company is not the subject of any investigation, claim, decree or
judgment involving any violation of the SEC or securities laws.
9. Legal Representation. The Company acknowledges that it has been
represented by independent legal counsel in the preparation of this Agreement.
Consultant represents that they have consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent the Consultant deemed
necessary.
10. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant
<PAGE> 18
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further acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company or the Consultant possess the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
11. Attorney's Fee. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
12. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. Notices. All notices, requests, and other communications hereunder shall
be deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to
the other party at the address as set forth herein below:
To the Company U.S. Wireless Data, Inc.
Mr. Rod Stambaugh, President
4851 Independence Street, Suite 189
Wheat Ridge, CO 80033
To the Consultant: Liviakis Financial Communications, Inc.
John M. Liviakis, President
2420 "K" Street; Suite 220
Sacramento, CA 95816
It is understood that either party may change the address to which notices
for it shall be addressed by providing notice of such change to the other party
in the manner set forth in this paragraph.
<PAGE> 19
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14. Choice of Law, Jurisdiction and Venue. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of
California. The parties agree that Sacramento County, CA. will be the venue of
any dispute and will have jurisdiction over all parties.
15. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding Arbitration in
California, in accordance with the applicable rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrators shall be
binding on the parties and may be entered in any court having jurisdiction
thereof. The provisions of Title 9 of Part 3 of the California Code of Civil
Procedure, including section 1283.05, and successor statutes, permitting
expanded discovery proceedings shall be applicable to all disputes that are
arbitrated under this paragraph.
16. Miscellaneous Conditions. Company and Consultant each agree to the
following terms and conditions:
a) The Company shall arrange that all insiders and large shareholders
agree to a one year lockup agreement, which would include all officers and
directors; and,
b) Company will provide an Opinion Letter from the Company's Corporate
Counsel that there are no "Opt Outs" in the class action lawsuit settlement and
further that there are no other outstanding or pending legal actions against the
Company.
17. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension
discharge is sought.
AGREED TO:
"Company" U.S. WIRELESS DATA, INC.
Date: 8/6/97 By: /s/Rod Stambaugh
------------------------------
Rod Stambaugh, CEO
& Its duly Authorized Officer
<PAGE> 20
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"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 8/4/97 By: /s/John M. Liviakis
------------------------------------
John M. Liviakis
President
By: /s/Robert B. Prag
------------------------------------
Robert B. Prag
Sr. Vice President
<PAGE> 21
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EXHIBIT "2"
U.S. WIRELESS DATA, INC.
SUBSCRIPTION AGREEMENT
For the Purchase of Units
Each Consisting of
875,000 Shares of Common Stock
and
400,000 Stock Purchase Warrants
U.S. Wireless Data, Inc.
1123 Western Avenue
Mill Valley, California 94914
Ladies and Gentlemen:
1. General. U.S. Wireless Data, Inc., a Colorado corporation (the
"Company"), is offering, pursuant to Regulation D ("Regulation D") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), an
aggregate of up to four (4) units (the "Units"), each consisting of eight
hundred seventy-five thousand (875,000) share of the Company's Common Stock
("Common Stock"), and warrants ("Warrants") expiring August 1, 2002,
substantially in the form of warrant attached hereto as Exhibit A, to purchase
up to four hundred thousand (400,000) shares of Common Stock at an exercise
price of One Cent ($0.01) per share. The Units are being offered at a price of
One Hundred Twenty-Five Thousand Dollars ($125,000) per Unit.
2. Subscription. The undersigned subscriber (the "Purchaser") hereby
irrevocably subscribes for and agrees to purchase three ( 3 ) Unit(s) for an
aggregate purchase price of Three-Hundred Seventy-Five thousand Dollars
($375,000.00) (the "Subscription Price"). Funds representing the Subscription
Price shall be paid by the Purchaser to the Company against issuance of the
securities constituting the Units.
3. Representations, Warranties and Covenants of Purchaser. The Purchaser
hereby acknowledges, represents and warrants to and covenants and agrees with
the Company that:
(a) Purchaser is an "accredited investor", as defined in Rule 501 of
Regulation D promulgated under the Securities Act. Purchaser is acquiring the
Units for Purchaser's own account and not for the account or benefit of any
other person. The Units, and the shares of Common Stock and the Warrants
constituting the Units and the shares of Common Stock for which the Warrants may
be exercised (collectively, the "Securities") will be acquired by
<PAGE> 22
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the Subscriber in good faith for investment and not with a view to the
distribution thereof. The Purchaser does not presently intend to sell or
otherwise dispose of all or any part of the Securities upon the occurrence or
nonoccurrence of any predetermined event;
(b) The Purchaser is willing and able to bear the economic risk of an
investment in the Units in an amount equal to the amount the Purchaser has
subscribed to purchase, and the Purchaser has adequate means of providing for
current needs and reasonably anticipated contingencies and has no need for
liquidity in such investment. In making these statements, the Purchaser has
taken into account (i) that Purchaser may have to hold the Securities for an
indefinite period and (ii) that the Purchaser could experience a complete loss
of Purchaser's investment in the Units;
(c) Purchaser:
(i) has been provided with copies of all of the reports and other
documents filed by the Company with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), during the past twelve months;
(ii) has been given the opportunity to ask questions of the
Company and its management concerning the Company, the Units, the
terms and conditions of the offering and other matters pertaining to
this investment, in order for Purchaser to evaluate the merits and
risks of an investment in the Units, and Purchaser has received
satisfactory responses to all such questions; and
(iii) acknowledges that the Units were not offered to Purchaser
by way of any general solicitation or advertising and at no time was
the Purchaser presented with or solicited by means of any leaflet,
public promotional meeting, circular, radio or television
advertisement, newspaper or magazine article;
(d) Since the offer and sale of the Units and of the Common Stock
issuable upon exercise of the Warrants have not been registered under the
Securities Act in reliance upon Regulation D among other provisions, Purchaser
will only offer or resell the Securities in compliance with the provisions of
all applicable securities laws and regulations. Purchaser will offer or resell
the Securities only if the Securities are registered under the Securities Act or
an exemption from such registration, including without limitation the exemption
afforded under Rule 144, is available. Unless such registration has been
effected or such an
<PAGE> 23
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exemption is available, the Company shall not permit the transfer
of the Securities.
The Purchaser understands and agrees that the Company may take
such reasonable steps as it deems appropriate to ensure compliance with the
offer, resale and other restrictions on transfer and conversion contained in
this Subscription Agreement (the "Agreement") or arising under applicable
securities laws, including instituting "stop transfer" instructions with respect
to the Securities and endorsing restrictive legends, such as the following, on
certificates representing the Securities:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") and are "restricted securities" as that term is
defined in Rule 144 under the Securities Act. The securities may not be
offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Securities Act or pursuant
to an exemption from registration under the Securities Act."
(e) The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated by this Agreement
will not violate any statute or law or any judgment, decree, order, regulation
or rule of any court or governmental authority by which Purchaser is bound or,
if Purchaser is other than a natural person, the charter, bylaws or other
instruments under which Purchaser is formed and its activities are governed.
4. Representations and Warranties of Company. The Company
hereby represents and warrants to the Purchaser as follows:
(a) The Company has filed all reports and other materials required by
the Exchange Act to be filed with the Securities and Exchange Commission during
the past 12 months. All such reports and materials have been complete and
accurate and have complied with the requirements of the Exchange Act in all
material respects and did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing at such dates, not
misleading.
(b) The Company is, and at the time of the issuance and sale of the
Units will be, a corporation duly organized, validly existing and in good
standing under the laws of Colorado. The Company has, and at the Closing Date
will have, full power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and to conduct its
<PAGE> 24
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business as described in the reports referred to in paragraph (a)
above.
(c) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company and
is enforceable against the Company in accordance with the terms hereof.
(d) The Securities to be delivered at the Closing have been duly
authorized and when issued for consideration as contemplated in this Agreement
will be validly issued and outstanding, fully paid and non-assessable.
5. Covenants of Company. The Company covenants and agrees with the
Purchaser as follows:
(a) Following an exercise of the Warrants, the Company will cause its
transfer agent promptly, at the Company's expense, to issue certificates
evidencing the shares of Common Stock being purchased through such exercise. In
the event the Company for any reason, including without limitation the
unavailability of authorized but unissued shares, does not cause the prompt
issuance of such certificates, the Company shall upon the written demand of the
Purchaser redeem from the Purchaser the Warrants the Purchaser attempted to
exercise or otherwise pay to the Purchaser by way of liquidated damages for such
breach against cancellation of such Warrants an amount per Warrant equal to the
remainder calculated by subtracting (i) the Warrant exercise price from (ii)
average closing asked price per share of Common Stock during the five trading
days ending with the day on which the Purchaser exercises or attempts to
exercise the Warrant.
(b) Promptly following the written request of the purchasers of a
majority of the Units, the Company, at its expense, will prepare, file and
prosecute diligently to effectiveness a registration statement under the
Securities Act, which registration statement shall provide for the resale by the
Purchaser of the shares of Common Stock (i) constituting part of the Units, (ii)
for which the Warrants had been or may be exercised, (iii) which are otherwise
held by Purchaser, or (iv) which Purchaser then has the right to acquire. The
Company shall also prepare and file such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to make available a prospectus meeting the requirements of the Securities Act on
as continuous a basis as practicable for such period as any Warrants issued
pursuant hereto remain outstanding and for two years thereafter.
(c) So long as any Warrants issued pursuant hereto remain
outstanding and for two years thereafter, the Company (i) will
<PAGE> 25
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timely file all reports and other materials it is required to file pursuant to
the Exchange Act and (ii) will not take any action to terminate the registration
of its Common Stock pursuant to the Exchange Act.
(d) Diligently seek qualified candidates to serve as (i) chief
executive officer, (ii) chief financial officer, (iii) vice president-sales, and
(iv) at least two non-employee directors for the Company; afford Purchaser an
opportunity to meet with any candidate to whom the Company proposes to offer
such a position; and offer such a position (or nomination therefor) to such a
candidate only if such candidate is approved by purchasers of a majority of the
Units.
(e) Extend the registration rights provided in the Warrants to all
shares of Common Stock which the Purchaser at the time of any such registration
owns or has the right to acquire.
6. Survival. The representations and warranties contained in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by any party hereto, or acceptance of any of the Units and
payment therefor.
7. Acceptance. It is understood and agreed that the Company shall
have the right to accept or reject this subscription, in whole or in part, for
any reason and that this Agreement shall not be binding upon the Company until
so accepted. Purchaser understands that the Company will notify it promptly upon
acceptance or rejection of this subscription.
8. Closing. Following acceptance of this subscription, the Units
subscribed for hereunder shall be delivered to the Purchaser against payment of
the aggregate Subscription Price therefor at a Closing which shall be held no
later than August 8, 1997.
9. Irrevocability. The Purchaser hereby agrees that this
subscription is irrevocable.
10. Miscellaneous.
(a) All notices or other communications given or made hereunder shall
be in writing and shall be delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the Purchaser at its address set
forth on the signature page below and to the Company at its principal executive
office.
(b) This Agreement may be amended only by a writing executed by all
parties.
<PAGE> 26
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(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(d) All pronouns contained herein and any variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the parties hereto may require.
(e) This Agreement may be executed in several counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
ALTERNATIVE SIGNATURE PAGES FOLLOW
The Purchaser should complete and sign one of the following signature
pages. One signature page is for use by individuals and the other is for use by
entities (e.g., corporation, partnership, trust).
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED
BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY
OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
<PAGE> 27
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U.S. Wireless Data, Inc.
Offering of Units Consisting of
875,000 Shares of Common Stock and
Warrants to Purchase up to 400,000 Shares of Common Stock
(Signature Page for Subscription by INDIVIDUALS)
(Check One)
[X] INDIVIDUAL OWNERSHIP
(One Signature Required Below)
[ ] JOINT TENANTS
(Two Signatures Required Below)
[ ] TENANTS IN COMMON
(Two Signatures Required Below)
[ ] COMMUNITY PROPERTY
(Two Signatures Required Below)
Number of Units subscribed for: three
---------
Aggregate Subscription Price for Units subscribed for: $375,000
---------
(Please print or type all information exactly as you wish it to
appear on the Company's records)
John M. Liviakis
- --------------------------------------------------------------------------
Name(s) of Subscriber(s)
3521 E. Curtis Park Drive Sacramento, CA 95818
- --------------------------------------------------------------------------
Residence Address
LFC: 2420 K Street, Suite 220, Sacramento, CA 95816
- --------------------------------------------------------------------------
Mailing Address (if different from above)
(916) 448-6084 (916) 448-6089 (916) 456-8808
- --------------------------------------------------------------------------
Telephone: (Business) (Facsimile) (Residential)
DATED: August 4, 1997 /s/John M. Liviakis
-- -------------------------
(Signature of Subscriber)
-------------------------
(Signature of Subscriber)
ACCEPTED BY:
U.S. Wireless Data, Inc.
By: /s/Rod Stambaugh Dated: August 6, 1997
---------------------------- --
<PAGE> 28
Page 28 of 47
U.S. Wireless Data, Inc.
Offering of Units Consisting of
875,000 Shares of Common Stock and
Warrants to Purchase up to 400,000 Shares of Common Stock
(Signature Page for Subscription by Entities)
The Subscriber is (complete one):
[ ] CORPORATION incorporated in ___________________________
[ ] PARTNERSHIP formed under laws of ______________________
[ ] TRUST established under laws of _______________________
[ ] Other (describe) ______________________________________
Amount subscribed for:_________________ $____________________
(Number of Units) (Subscription Price)
(Please print or type all information exactly as you wish it to
appear on the Company's records)
- --------------------------------------------------------------------------------
Name of Subscriber
- --------------------------------------------------------------------------------
Principal Office Address
- --------------------------------------------------------------------------------
Mailing Address (if different from above)
- --------------------------------------------------------------------------------
Telephone (Voice Communications) (Facsimile)
The undersigned signatory certifies that he or she has full power and authority
to execute this Subscription Agreement on behalf of Purchaser and that the
purchase of Units has been duly authorized and is not prohibited by the
governing instrument of Purchaser.
DATED: August __, 1997
--------------------------------------
Name of Purchaser
By:
-----------------------------------
(Signature)
-----------------------------------
(print name and title of signatory)
ACCEPTED BY:
U.S. Wireless Data, Inc.
By: Dated: August __, 1997
--------------------------------
<PAGE> 29
Page 29 of 47
EXHIBIT "3"
U.S. WIRELESS DATA, INC.
SUBSCRIPTION AGREEMENT
For the Purchase of Units
Each Consisting of
875,000 Shares of Common Stock
and
400,000 Stock Purchase Warrants
U.S. Wireless Data, Inc.
1123 Western Avenue
Mill Valley, California 94914
Ladies and Gentlemen:
1. General. U.S. Wireless Data, Inc., a Colorado corporation (the
"Company"), is offering, pursuant to Regulation D ("Regulation D") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), an
aggregate of up to four (4) units (the "Units"), each consisting of eight
hundred seventy-five thousand (875,000) share of the Company's Common Stock
("Common Stock"), and warrants ("Warrants") expiring August 1, 2002,
substantially in the form of warrant attached hereto as Exhibit A, to purchase
up to four hundred thousand (400,000) shares of Common Stock at an exercise
price of One Cent ($0.01) per share. The Units are being offered at a price of
One Hundred Twenty-Five Thousand Dollars ($125,000) per Unit.
2. Subscription. The undersigned subscriber (the "Purchaser") hereby
irrevocably subscribes for and agrees to purchase one ( 1 ) Unit(s) for an
aggregate purchase price of One-Hundred Twenty-five Thousand Dollars
($125,000.00) (the "Subscription Price"). Funds representing the Subscription
Price shall be paid by the Purchaser to the Company against issuance of the
securities constituting the Units.
3. Representations, Warranties and Covenants of Purchaser. The Purchaser
hereby acknowledges, represents and warrants to and covenants and agrees with
the Company that:
(a) Purchaser is an "accredited investor", as defined in Rule 501 of
Regulation D promulgated under the Securities Act. Purchaser is acquiring the
Units for Purchaser's own account and not for the account or benefit of any
other person. The Units, and the shares of Common Stock and the Warrants
constituting the Units and the shares of Common Stock for which the Warrants may
be exercised (collectively, the "Securities") will be acquired by
<PAGE> 30
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the Subscriber in good faith for investment and not with a view to the
distribution thereof. The Purchaser does not presently intend to sell or
otherwise dispose of all or any part of the Securities upon the occurrence or
nonoccurrence of any predetermined event;
(b) The Purchaser is willing and able to bear the economic risk of an
investment in the Units in an amount equal to the amount the Purchaser has
subscribed to purchase, and the Purchaser has adequate means of providing for
current needs and reasonably anticipated contingencies and has no need for
liquidity in such investment. In making these statements, the Purchaser has
taken into account (i) that Purchaser may have to hold the Securities for an
indefinite period and (ii) that the Purchaser could experience a complete loss
of Purchaser's investment in the Units;
(c) Purchaser:
(i) has been provided with copies of all of the reports and
other documents filed by the Company with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), during the past twelve months;
(ii) has been given the opportunity to ask questions of the
Company and its management concerning the Company, the Units, the terms
and conditions of the offering and other matters pertaining to this
investment, in order for Purchaser to evaluate the merits and risks of
an investment in the Units, and Purchaser has received satisfactory
responses to all such questions; and
(iii) acknowledges that the Units were not offered to Purchaser
by way of any general solicitation or advertising and at no time was
the Purchaser presented with or solicited by means of any leaflet,
public promotional meeting, circular, radio or television
advertisement, newspaper or magazine article;
(d) Since the offer and sale of the Units and of the Common Stock
issuable upon exercise of the Warrants have not been registered under the
Securities Act in reliance upon Regulation D among other provisions, Purchaser
will only offer or resell the Securities in compliance with the provisions of
all applicable securities laws and regulations. Purchaser will offer or resell
the Securities only if the Securities are registered under the Securities Act or
an exemption from such registration, including without limitation the exemption
afforded under Rule 144, is available. Unless such registration has been
effected or such an
<PAGE> 31
Page 31 of 47
exemption is available, the Company shall not permit the transfer
of the Securities.
The Purchaser understands and agrees that the Company may take
such reasonable steps as it deems appropriate to ensure compliance with the
offer, resale and other restrictions on transfer and conversion contained in
this Subscription Agreement (the "Agreement") or arising under applicable
securities laws, including instituting "stop transfer" instructions with respect
to the Securities and endorsing restrictive legends, such as the following, on
certificates representing the Securities:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") and are "restricted securities" as that term is
defined in Rule 144 under the Securities Act. The securities may not be
offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Securities Act or pursuant
to an exemption from registration under the Securities Act."
(e) The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated by this Agreement
will not violate any statute or law or any judgment, decree, order, regulation
or rule of any court or governmental authority by which Purchaser is bound or,
if Purchaser is other than a natural person, the charter, bylaws or other
instruments under which Purchaser is formed and its activities are governed.
4. Representations and Warranties of Company. The Company
hereby represents and warrants to the Purchaser as follows:
(a) The Company has filed all reports and other materials required by
the Exchange Act to be filed with the Securities and Exchange Commission during
the past 12 months. All such reports and materials have been complete and
accurate and have complied with the requirements of the Exchange Act in all
material respects and did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing at such dates, not
misleading.
(b) The Company is, and at the time of the issuance and sale of the
Units will be, a corporation duly organized, validly existing and in good
standing under the laws of Colorado. The Company has, and at the Closing Date
will have, full power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and to conduct its
<PAGE> 32
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business as described in the reports referred to in paragraph (a) above.
(c) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company and
is enforceable against the Company in accordance with the terms hereof.
(d) The Securities to be delivered at the Closing have been duly
authorized and when issued for consideration as contemplated in this Agreement
will be validly issued and outstanding, fully paid and non-assessable.
5. Covenants of Company. The Company covenants and agrees
with the Purchaser as follows:
(a) Following an exercise of the Warrants, the Company will cause its
transfer agent promptly, at the Company's expense, to issue certificates
evidencing the shares of Common Stock being purchased through such exercise. In
the event the Company for any reason, including without limitation the
unavailability of authorized but unissued shares, does not cause the prompt
issuance of such certificates, the Company shall upon the written demand of the
Purchaser redeem from the Purchaser the Warrants the Purchaser attempted to
exercise or otherwise pay to the Purchaser by way of liquidated damages for such
breach against cancellation of such Warrants an amount per Warrant equal to the
remainder calculated by subtracting (i) the Warrant exercise price from (ii)
average closing asked price per share of Common Stock during the five trading
days ending with the day on which the Purchaser exercises or attempts to
exercise the Warrant.
(b) Promptly following the written request of the purchasers of a
majority of the Units, the Company, at its expense, will prepare, file and
prosecute diligently to effectiveness a registration statement under the
Securities Act, which registration statement shall provide for the resale by the
Purchaser of the shares of Common Stock (i) constituting part of the Units, (ii)
for which the Warrants had been or may be exercised, (iii) which are otherwise
held by Purchaser, or (iv) which Purchaser then has the right to acquire. The
Company shall also prepare and file such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to make available a prospectus meeting the requirements of the Securities Act on
as continuous a basis as practicable for such period as any Warrants issued
pursuant hereto remain outstanding and for two years thereafter.
(c) So long as any Warrants issued pursuant hereto remain
outstanding and for two years thereafter, the Company (i) will
<PAGE> 33
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timely file all reports and other materials it is required to file pursuant to
the Exchange Act and (ii) will not take any action to terminate the registration
of its Common Stock pursuant to the Exchange Act.
(d) Diligently seek qualified candidates to serve as (i) chief
executive officer, (ii) chief financial officer, (iii) vice president-sales, and
(iv) at least two non-employee directors for the Company; afford Purchaser an
opportunity to meet with any candidate to whom the Company proposes to offer
such a position; and offer such a position (or nomination therefor) to such a
candidate only if such candidate is approved by purchasers of a majority of the
Units.
(e) Extend the registration rights provided in the Warrants to all
shares of Common Stock which the Purchaser at the time of any such registration
owns or has the right to acquire.
6. Survival. The representations and warranties contained
in this Agreement shall remain operative and in full force and
effect regardless of any investigation made by any party hereto,
or acceptance of any of the Units and payment therefor.
7. Acceptance. It is understood and agreed that the Company shall
have the right to accept or reject this subscription, in whole or in part, for
any reason and that this Agreement shall not be binding upon the Company until
so accepted. Purchaser understands that the Company will notify it promptly upon
acceptance or rejection of this subscription.
8. Closing. Following acceptance of this subscription, the Units
subscribed for hereunder shall be delivered to the Purchaser against payment of
the aggregate Subscription Price therefor at a Closing which shall be held no
later than August 8, 1997.
9. Irrevocability. The Purchaser hereby agrees that this
subscription is irrevocable.
10. Miscellaneous.
(a) All notices or other communications given or made hereunder shall
be in writing and shall be delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the Purchaser at its address set
forth on the signature page below and to the Company at its principal executive
office.
(b) This Agreement may be amended only by a writing executed by all
parties.
<PAGE> 34
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(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(d) All pronouns contained herein and any variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the parties hereto may require.
(e) This Agreement may be executed in several counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
ALTERNATIVE SIGNATURE PAGES FOLLOW
The Purchaser should complete and sign one of the following signature
pages. One signature page is for use by individuals and the other is for use by
entities (e.g., corporation, partnership, trust).
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED
BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY
OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
<PAGE> 35
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U.S. Wireless Data, Inc.
Offering of Units Consisting of
875,000 Shares of Common Stock and
Warrants to Purchase up to 400,000 Shares of Common Stock
(Signature Page for Subscription by INDIVIDUALS)
(Check One)
[X] INDIVIDUAL OWNERSHIP
(One Signature Required Below)
[ ] JOINT TENANTS
(Two Signatures Required Below)
[ ] TENANTS IN COMMON
(Two Signatures Required Below)
[ ] COMMUNITY PROPERTY
(Two Signatures Required Below)
Number of Units subscribed for: one
----------
Aggregate Subscription Price for Units subscribed for: $125,000
----------
(Please print or type all information exactly as you wish it to appear on the
Company's records)
Robert B. Prag
- --------------------------------------------------------------------------------
Name(s) of Subscriber(s)
1 Sable Court, Sacramento, CA 95816
- --------------------------------------------------------------------------------
Residence Address
2420 K Street, Suite 220, Sacramento, CA 95816
- --------------------------------------------------------------------------------
Mailing Address (if different from above)
(916) 448-6084 (916) 448-6089 (916) 481-7779
- --------------------------------------------------------------------------------
Telephone: (Business) (Facsimile) (Residential)
DATED: August 4, 1997 /s/Robert B. Prag
-- -------------------------
(Signature of Subscriber)
-------------------------
(Signature of Subscriber)
ACCEPTED BY:
U.S. Wireless Data, Inc.
By: /s/Rod Stambaugh Dated: August 6, 1997
-----------------------------
<PAGE> 36
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U.S. Wireless Data, Inc.
Offering of Units Consisting of
875,000 Shares of Common Stock and
Warrants to Purchase up to 400,000 Shares of Common Stock
(Signature Page for Subscription by Entities)
The Subscriber is (complete one):
[ ] CORPORATION incorporated in ___________________________
[ ] PARTNERSHIP formed under laws of ______________________
[ ] TRUST established under laws of _______________________
[ ] Other (describe) ______________________________________
Amount subscribed for:________________ $_________________
(Number of Units) (Subscription Price)
(Please print or type all information exactly as you wish it to
appear on the Company's records)
- --------------------------------------------------------------------------------
Name of Subscriber
- --------------------------------------------------------------------------------
Principal Office Address
- --------------------------------------------------------------------------------
Mailing Address (if different from above)
- --------------------------------------------------------------------------------
Telephone (Voice Communications) (Facsimile)
The undersigned signatory certifies that he or she has full power and authority
to execute this Subscription Agreement on behalf of Purchaser and that the
purchase of Units has been duly authorized and is not prohibited by the
governing instrument of Purchaser.
DATED: August __, 1997 ----------------------------------
Name of Purchaser
By:
----------------------------------
(Signature)
-----------------------------------
(print name and title of signatory)
ACCEPTED BY:
U.S. Wireless Data, Inc.
By: Dated: August __, 1997
--------------------------------
<PAGE> 37
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EXHIBIT "4"
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
U.S. WIRELESS DATA, INC., A COLORADO CORPORATION.
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON THE EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATES AND THUS MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER THAT ACT AND REGISTERED OR
QUALIFIED UNDER APPLICABLE SECURITIES LAW OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION OR QUALIFICATION IS AVAILABLE.
This Common Stock Purchase Warrant, made as of the 4th day of August,
1997, by and between U.S. WIRELESS DATA, INC., a Colorado corporation, having
its principal executive offices at 4851 Independence Street; Suite 189; Wheat
Ridge, CO 80033 (the "Company"), and John M. Liviakis, having a principal
business address at 2420 "K" Street; Suite 220, Sacramento, California 95816.
WITNESSETH:
This Warrant is exercisable at any time, or from time to time, from
January 15, 1998 up to and including 5:00 p.m., Pacific daylight time, on August
4, 2002.
1. Warrant.
This certifies that, __________________________ , or assigns ("Warrant
Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company up to____________________________________________________________
( ) fully paid and nonassessable shares of Common Stock of the Company
("Common Stock") at an exercise price of One Cent ($0.01) per share ("Exercise
Price"). The Exercise Price and number of shares of Common Stock issuable upon
exercise hereof shall be subject to adjustment as provided in this Warrant.
2. Exercise Price.
The exercise price shall be One Cent ($.01) per share of Common Stock.
The Company shall pay all original issue or transfer taxes on the exercise of
this Warrant and all other fees and expenses incurred by the Company in
connection herewith.
3. Exercise of Warrant.
All of the Warrants granted hereby shall first become exercisable on
January 15, 1998. Subject to the provisions of
<PAGE> 38
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Paragraph 4 hereof, such Warrants shall be exercisable in whole or in part at
any time and from time to time from January 15, 1998 through 5:00 p.m. Pacific
daylight time on August 4, 2002.
In order to exercise the purchase right represented by this Warrant in
whole or in part, the Warrant Holder shall deliver to the Company a written
notice substantially in the form of Notice of Exercise of Warrants to Purchase
Shares attached hereto, delivery to be effected by personal delivery, by
overnight courier or by registered or certified mail, return receipt requested,
addressed to the Company at its principal office. Such notice shall specify the
number of shares which Warrant Holder is purchasing under this Warrant Agreement
and shall be accompanied by the Warrant certificate and payment (in the form of
cash or certified or bank cashier's check) for the shares so being purchased at
the Exercise Price of One Cent ($0.01) per share of Common Stock.
As soon as practicable thereafter but in any event within five (5)
business days, Company shall cause to be delivered to the Warrant Holder
certificates issued in the Warrant Holder's name evidencing the full number of
Shares as to which this Warrant was exercised by the Warrant Holder. Warrant
Holder shall be considered to be the holder and owner of the Shares to be
evidenced by such certificates as of the close of business on the date Company
received the notice of exercise accompanied by payment, as contemplated herein,
without regard to the date of actual issuance of the certificate(s) representing
such Shares.
4. Divisibility and Assignability of the Warrant.
(a) The Warrant Holder may elect to exercise the right to purchase
shares under this Warrant in whole or in part at any time and from time to time,
subject to the provisions of Paragraph 3 above, with respect to any whole number
of Shares included therein, but in no event may an election be may to purchase
less than ten thousand (10,000) shares at any one time, unless the remaining
shares covered by this Warrant number less than ten thousand (10,000), in which
case this Warrant may be exercised for such remaining balance.
(b) This Warrant can be transferred or assigned in whole or in part in
increments of no less rights to purchase ten thousand (10,000) shares if the
transferor delivers an opinion of counsel reasonably acceptable to the Company
(which counsel may be the counsel for the Company), stating that such transfer
is exempt from the registration requirements of the Securities Act of 1933, as
amended, and the registration and qualification requirements under applicable
state law.
<PAGE> 39
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Upon due presentment for transfer or exchange of this Warrant certificate at the
principal office of the Company, a new Warrant certificate or certificates of
like tenor and evidencing in the aggregate a like number of Warrants shall be
issued in exchange for this Warrant certificate. Subject to the terms hereof,
the Company shall deliver Warrant certificates in required whole number
denominations to Warrant Holders in connection with any transfer, exchange or
partial exercise permitted hereunder.
5. Stock as Investment.
By accepting this Warrant, the Warrant Holder agrees that it is Warrant
Holder's intention to purchase Shares hereunder for investment and without any
view towards the resale or distribution thereof. In the event Shares to be
issued upon the election to purchase shares under this Warrant have not been
registered at the time of proposed issuance under the Securities Act of 1933, as
amended (the "Securities Act"), the Warrant Holder shall deliver to the Company
at the time of such issuance a written representation that warrant holder is
acquiring such Shares in good faith for investment purposes only and not for
resale or distribution. Company may place a "stop transfer" order with respect
to such Shares with its transfer agent and place an appropriate restrictive
legend on the stock certificate(s) evidencing such Shares, in order to prevent
transfers unless such Shares are registered under the Securities Act or an
exemption from the registration requirements of the Securities Act is
applicable.
6. Conditions to Issuance of Shares.
The Company shall issue and deliver certificates for Shares purchased
upon the exercise of any portion of the Warrant granted hereunder.
7. Registration Rights.
(a) If, at any time during the exercise period hereof and the three (3)
years following any exercise hereunder, the Company proposes to file a
registration statement on Forms S-4 or S-8 or any successor form) under the
Securities Act, the Company shall notify the Warrant Holder at least twenty (20)
days prior to the filing of such registration statement and will offer to
include in such registration statement all or any portion of the shares of
Common Stock then owned by the Warrant Holder or which the Warrant Holder then
has the right to acquire, whether pursuant to this Warrant or otherwise
(collectively the "Shares"). In a written notice to be delivered to the Company
within twenty (20) days after receipt of any such notice from Company, the
Warrant Holder shall state the number of Shares that it wishes to
<PAGE> 40
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register for resale and distribution publicly under the proposed registration
statement. The Company will use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to file
at least one (1) such registration statement by May 15, 1998. The Company will
also use its best efforts, through its officers, directors, auditors and counsel
in all matters necessary or advisable, to include within the coverage of each
such registration statement (except as hereinafter provided) the Shares that
Warrant Holder has advised company that Warrant Holder wishes to register
pursuant to such registration statement for resale and distribution, to
prosecute each such registration statement diligently to effectiveness, and to
cause such registration statement to become effective as promptly as
practicable. In that regard, the company makes no representation or warranties
as to its ability to have any registration statement declared effective.
All registrations requested pursuant to this Paragraph 7(a) are
referred to herein as "Piggyback Registrations." In the event the Company is
advised by and the staff of the SEC, NASDAQ or any self-regulatory or state
securities agency that the inclusion of the Shares will prevent, preclude or
materially delay the effectiveness of a registration statement filed, the
Company, in good faith, may amend such registration statement to exclude the
Shares without otherwise affecting the Warrant Holder's rights to any other
registration statement herein.
(i) Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and if the
underwriter thereof advises the Company in writing that in its opinion the
number of Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of such securities by the company, then the Company
will include such registration statement first, the securities that the Company
proposes to sell and second, the securities requested to be included in such
registration statement by selling securityholders, such right to inclusion being
apportioned pro rata among the Warrant Holder and the other holders of any other
securities requesting registration according to the market value of Shares and
other securities requested to be registered.
Notwithstanding the above, if any such underwriter shall advise the
Company in writing that the distribution of the Shares being included in the
registration statement concurrently with the securities being registered by the
Company would materially adversely affect the distribution of such securities by
the Company, then the Warrant Holder shall delay its offering and sale for such
period ending on the earliest of (a) 180 days following the effective date of
the Company's registration
<PAGE> 41
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statement, (b) the earliest date that, in the opinion of such underwriter, such
adverse effect would no longer be caused, or (c) such date as the Company,
managing underwriter and Warrant Holder shall otherwise agree. In the event of
such delay, the Company shall file such supplements and post-effective
amendments and take any such other actions as may be necessary or appropriate to
permit such Warrant Holder to make its proposed offering and sale for a period
of at least ninety (90) days commencing immediately following the end of such
period of delay. If any party disapproves of the terms of any such underwriting,
it may elect to withdraw therefrom by written notice to the Company, the
underwriter and the Warrant Holder. Notwithstanding the foregoing, the Company
shall not be required to include Shares within the coverage of a registration
statement being filed pursuant to this Paragraph 7(a)(i) if, in the opinion of
counsel for both the Company and Warrant Holder, all of the Shares proposed to
be registered may be immediately transferred pursuant to the provisions of Rule
144 under the Securities Act.
(ii) Priority on Secondary Registrations. If a
Piggyback Registration is an underwritten secondary registration on behalf of
holders of securities of the Company, and the underwriter thereof advises the
Company in writing that it its opinion the number of Shares requested to be
included in such registration statement exceeds the number which can be sold in
such offering without materially adversely affecting the distribution of such
securities, then the Company will include in such registration statement the
securities requested to be included in such registration statement by selling
securityholders on a pro rata basis, with such rights to inclusion being
apportioned among the Warrant Holder and the other holders of any other
securities requesting registration according to the market value of Shares and
other securities requested by them, respectively, to be registered.
Notwithstanding the foregoing, the Company shall not be required to include
Shares within the coverage of a registration statement being filed pursuant to
this Paragraph 9(a)(ii) if, in the opinion of counsel for both the Company and
Warrant Holder, all of the Shares proposed to be registered may be immediately
transferred pursuant to the provisions of Rule 144 under the Securities Act.
(b) If at any time after August 4, 1998 and prior to the third (3rd)
anniversary of the earlier of the expiration of the Warrant herein granted and
the purchase of the final Shares remaining subject to such Warrant Shares issued
or issuable upon exercise of the Warrant herein granted are not then registered
under one or more Piggyback Registrations and then covered by a prospectus
complying with the requirements of the Securities Act, the Warrant Holder may by
written notice to the Company require Company to file a registration statement
under the Securities Act
<PAGE> 42
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covering such Shares as Warrant Holder may specify in such notice. Warrant
Holder shall be entitled so to require Company to file a registration statement
pursuant to this Paragraph 7(b) on only one (1) occasion. The Company will file
such a registration statement within ninety (90) days of receipt of such notice;
and thereafter will prosecute such registration statement diligently to
effectiveness; will cause such registration statement to become effective as
promptly as practicable; will promptly file all such registration statement to
become effective as promptly as practicable; will promptly file all such
supplements and post-effective amendments to such registration statement and
take any such other actions as may be necessary or appropriate to make available
to Warrant Holder on as continuous a basis as is practicable a prospectus
meeting the requirements of the Securities Act through the earliest of (a) the
date on which the final Shares have been sold and distributed by Warrant Holder,
(b) the date on which, in the opinion of counsel for both the Company and
Warrant Holder, all of the Shares which Warrant Holder then holds may be
immediately transferred pursuant to the provisions of Rule 144 under the
Securities Act, and (c) August 4, 2004. In that regard, the Company makes no
representations or warranties as to its ability to have any registration
statement or post-effective amendment thereto declared effective.
(c) In the event of any registration of a security pursuant to this
Paragraph 7, the Company shall indemnify the Warrant Holder and its officers and
directors against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by an omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by the Warrant Holder with expressly
for use therein. The Warrant Holder shall also indemnify the Company, its
officers and directors and each underwriter of the Shares so registered with
respect to losses, claims damages and Shares so registered with respect to
losses, claims damages and liabilities caused by an untrue statement or omission
made in reliance upon and in conformity with information furnished by the
Warrant Holder to the Company in writing expressly for use in such registration
statement or prospectus.
(d) All expenses of any registration referred to in this Paragraph 7,
except the fees and disbursement of counsel to the Warrant Holder, underwriting
commissions or discounts and any transfer or other taxes applicable to the
transfer of Shares by the Warrant Holder, shall be borne by the Company.
<PAGE> 43
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(e) Following the exercise of the Warrant hereunder, the Warrant Holder
shall promptly advise the Company when Warrant Holder no longer holds any shares
acquired through the exercise of Warrants granted hereunder, and upon the
request of the Company, the Warrant Holder shall advise the Company from time to
time of the number of Shares then held by Warrant Holder which were acquired
through the exercise of Warrants granted hereunder.
8. Adjustments Upon Changes in Capitalization.
(a) In the event of changes in the outstanding Common Stock of the
Company by reason of stock dividends, stock splits, reverse stock splits,
recapitalization's, consolidations, combinations, exchanges of shares,
separations, reorganizations, liquidation's or any similar events or events
having similar consequences, the number and class of Shares as to which the
Warrant may be exercised shall be correspondingly adjusted so that for the same
aggregate exercise price the Warrant Holder shall be entitled to acquire the
securities and other property Warrant Holder would have held if Warrant Holder
had exercised its rights to purchase shares under this Warrant Agreement for the
number of Shares under consideration prior to the first of such events to occur
and continued to hold such Shares and all other securities and other property
issued with respect thereto in connection with such events. No adjustment shall
be made with respect to cash dividends or non-liquidating dividends payable in
property other than cas, so long as Company provides Warrant Holder with written
notice of any such proposed dividend at least fifteen (15) days prior to the
record date for such dividend. Company shall also give Warrant Holder prompt
written notice of any event resulting in an adjustment under this Paragraph
8(a), including a detailed computation of such adjustment.
(b) Any adjustment in the number and kind of Shares and other
securities shall apply proportionately to only the unexercised portion of the
Warrant at the time of the event given rise to the adjustment. If fractions of a
Share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of Shares so long as such increase does not result
in the holder of the Warrant being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of the Company or its
subsidiaries, in which case the adjustment shall be revised to the next lower
whole number of Shares.
9. Effect of Mergers, consolidations or Sales of Assets.
In the event Company should propose to merge or consolidate with, or
engage in some other form of business combination with, any other corporation or
entity on a basis in which Company is not to be the surviving entity, then as a
condition precedent to
<PAGE> 44
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proceeding with such merger, consolidation or other business combination, the
Company shall require the surviving entity to assume and perform all of
Company's obligations under the right to acquire the same securities and
property for the Warrant exercise price specified herein as Warrant Holder would
have received if Warrant Holder had exercised the Warrant immediately prior to
such merger, consolidation or other business combination. To the extent the
above may be inconsistent with Sections 424(a)(1) and (2) of the Code, the above
shall be deemed interpreted so as to comply therewith.
10. No Rights in Warrant Stock.
Warrant Holder shall have no rights as a shareholder in respect of
Shares as to which the Warrant hereunder shall not have been exercised and
payment made as herein provided.
11. Effect Upon Employment.
This Agreement does not give the Warrant Holder any right to employment
by, or any other relationship with, the Company.
12. Binding Effect.
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
13. Miscellaneous.
This Agreement shall be construed under the laws of the State of
California applied to agreements made and to be performed entirely within such
State. Headings have been included herein for convenience of reference only and
shall not be deemed a part of this Agreement. The Company shall pay any and all
documentary, stamp or other transactional taxes attributable to the issuance or
delivery of shares of Common Stock of the Company upon exercise of all or part
of this Warrant.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"Company" U.S. WIRELESS DATA, INC.
By:
------------------------------------
Rod Stambaugh, CEO & Its
Duly Authorized Officer
<PAGE> 45
Page 45 of 47
ACCEPTED AND AGREED TO:
"Warrant Holder"
--------------------------------
<PAGE> 46
Page 46 of 47
NOTICE OF EXERCISE OF WARRANT TO PURCHASE SHARES
TO: U.S. WIRELESS DATA, INC.
The undersigned hereby elects to exercise the purchase right
represented by that Warrant dated as of August 4, 1997, between U.S. Wireless
Data, Inc. and the undersigned with an exercise price of One Cent ($0.01), and
to purchase under that Warrant, ________________________________________
(__________) shares of Common Stock of U.S. Wireless Data, Inc., and hereby
makes payment in the form of cash or certified check or bank cashier's check for
the Shares so being purchased at the exercise price of One Cent ($0.01) therefor
as specified in Paragraph 2 of the Warrant Agreement, and requests that the
certificates for those shares be issued in the name of, and delivered to
_____________.
-----------------------------
Signature
Social Security or Taxpayer I.D. Number:
---------------------------------
Instructions for issuance of stock:
- --------------------------------------------------------------------------------
Name
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
<PAGE> 47
Page 47 of 47
EXHIBIT "5"
JOINT FILING AGREEMENT
Liviakis Financial Communications, Inc., John M. Liviakis, Renee A.
Liviakis and Robert B. Prag (collectively the "Parties" and individually a
"Party") hereby agree that they shall file a single statement on Schedule 13D
(as amended from time to time, the "Statement") with respect to their beneficial
ownership of shares of No Par Value Class A Common Stock (the "Securities") of
U.S. Wireless Data, Inc., a Colorado corporation, on behalf of and in
satisfaction of the obligations of all of the Parties and that they shall amend
the Statement from time to time as required by rules promulgated under the
Securities Exchange Act of 1934, as amended.
Each of the Parties represents and warrants that such Party is eligible
to use Schedule 13D with respect to information regarding the Securities and
agrees to assume responsibility for the timely filing of the Statement and any
amendments thereto. Each of the Parties hereby assumes responsibility for the
completeness and accuracy of the information concerning such Party contained in
the Statement. No Party shall be responsible for the completeness and accuracy
of the information contained in the Statement concerning the other Parties,
unless such Party knows or has reason to believe that such information is
incomplete or inaccurate. The execution of the Statement, including any
amendment thereto, by one of the Parties shall constitute a representation by
such Party that the information concerning such Party contained therein is
complete and accurate and that such Party neither knows nor has any reason to
believe that the information concerning the other Parties contained therein is
either incomplete or inaccurate.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
In Witness Whereof, the Parties have executed this Joint Filing
Agreement this 15th day of August, 1997.
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/John M. Liviakis /s/Renee A. Liviakis
------------------------------ --------------------------------
John M. Liviakis Renee A. Liviakis
/s/John M. Liviakis /s/Robert A. Prag
------------------------------ --------------------------------
John M. Liviakis Robert A. Prag
