SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB/A
Amendment No. 2
[Mark One]
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the fiscal year ended June 30, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ____________________ to _____________________.
Commission file no.: 0-22848
U.S. WIRELESS DATA, INC.
------------------------
(Name of small business issuer in its charter)
Colorado 84-1178691
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2200 Powell Street, Suite 450, Emeryville, California 94608
-----------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (510) 596-2025
--------------
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered under Section 12(g) of the Exchange Act
No Par Value Class A Common Stock
---------------------------------
(Title of Class)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes _X_ No___
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. [ ]
The issuer's revenues for the fiscal year ended June 30, 1997 were $1,315,542
The aggregate market value of the issuer's voting stock held as of August 31,
1997 by non-affiliates of the Registrant was approximately $18,581,000 based on
an average price of $3.49 as of August 29, 1997.
As of August 31, 1997, the issuer had 9,113,952 shares of its no par value
common stock outstanding.
Transitional Small Business Disclosure Format (check one):
Yes ___ No _X_
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<TABLE>
<CAPTION>
EXHIBITS AND REPORTS ON FORM 8-K
(a) List of Exhibits Required by Item 601 of Regulation S-B
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Exhibit Description
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<S> <C>
3.1 Copy of Amended Articles of Incorporation (2)
3.2 Copy of Amended Bylaws (2)
4.1 Representative's Warrant Agreement dated as of December 2, 1993
4.2 Common Stock Purchase Warrant issued to James B. Walters on or about
April 12, 1993
4.3 Common Stock Purchase Warrant issued to Kenneth DeJohn on or about May 1, 1993
4.4 Consulting Agreement dated August 15, 1992, as amended April 12, 1993,
with James B. Walters (1)
4.5 Form of Common Stock Purchase Warrant issued to John Liviakis and Robert Prag
as of August 4, 1997 (This exhibit is included in Exhibit 10.13 filed herewith.)
10.1 License and Volume Purchase Agreement with OMRON Systems of America with
Solectron Addendum (1)
10.2 Promissory Note with OMRON Systems, Inc. (2)
10.3 Supply Agreement with Novatel Communications LTD. (2)
10.4 Release Agreement with Richard P. Draper (2)
10.5 Copy of Amended 1992 Stock Option Plan (3)
10.6 Agreement for Manufacture and Purchase between USWD, Uniform Industrial Corp
and Cardservice International, Inc. (2)
10.7 AT&T CDPD Value Added Reseller Agreement dated April 30. 1997
10.8 Bell Atlantic AIRBRIDGE Packet Service Agreement dated
August 12, 1997
10.9 Engagement Agreement between USWD and
entrenet Group, LLC dated June 3, 1997
10.10 GTE Leasing Corporation Promissory Note dated August 6, 1997
10.11 GTE Mobilnet Communications Service and Equipment
Agreement dated August 1, 1997 10.12 Form of Demand Note issued
to private investors during the fourth quarter of 1997
10.13 Liviakis Financial Communications, Inc. Consulting Agreement, and Subscription
Agreement for the purchase of U.S. Wireless Data, Inc. Common Stock and
Warrants dated July 25, 1997
10.14 Member Service Provider Sales and Service Credit Card Processing Agreement
between U.S. Wireless Data, Inc. and NOVA Information Systems, Inc. dated
January 1, 1997
10.15 Purchase Agreement with Unicard Systems, Inc. dated September 18, 1997
10.16 Purchase Agreement with Wellex Systems Manufacturing & Distribution Group dated
August 7, 1997
10.17 Underwriting Agreement between the Company, RAS Securities Corp.,
Walford & Company, Incorporated and Thomas James Associates, Inc. dated
December 2, 1993 (4)
21.1 List of Subsidiaries (2)
23.1 Consent of Independent Accountants
27 Financial Data Schedule
<FN>
(1) Incorporated by reference from the like-named exhibit filed with the Company's Registration Statement on Form SB-2,
SEC File No. 33-69776-D.
(2) Incorporated by reference from the like-named exhibit filed with the Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1995, filed on October 13, 1995 (Control No. 95201388)
(3) Incorporated by reference from the like-named exhibit filed with the Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1996,filed on October 21, 1996. (Control No. 96645557)
(4) Incorporated by reference from the like-named exhibit filed with Amendment No. 5 to the Company's Registration Statement on
Form SB-2, SEC File No. 33-69776-D.
</FN>
</TABLE>
(b) Reports on Form 8-K
-------------------
There were no reports on Form 8-K that were filed during the last quarter
of the fiscal year ended June 30, 1997.
40
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SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the Registrant
caused this Report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated: October 14, 1997
U.S. WIRELESS DATA, INC.
\s\ Evon A. Kelly Chief Executive Officer and October 14. 1997
- ------------------------ Director ----------------
Evon A. Kelly
In accordance with the Exchange Act, this Report has been signed below by the
following persons on behalf of the Registrant and in the capacities and on the
dates indicated:
\s\ Evon A. Kelly Chief Executive Officer and October 14, 1997
- ------------------------ Director ----------------
Evon A. Kelly
\s\ Rod L. Stambaugh President and Chairman of the October 14, 1997
- ------------------------ Board of Directors ----------------
Rod L. Stambaugh
\s\ Robert E. Robichaud Chief Financial Officer and October 14, 1997
- ------------------------ Principal Accounting Officer ----------------
Robert E. Robichaud
- ------------------------ Director ---------------
Alan B. Roberts
\s\ Chester N. Winter Director October 14, 1997
- ------------------------ ----------------
Chester N. Winter
\s\ Caesar Berger Director October 14, 1997
Caesar Berger ----------------
41
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Exhibit 4.1
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U.S. WIRELESS DATA, INC.
AND
RAS SECURITIES CORP.
AND
WALFORD & COMPANY INCORPORATED
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REPRESENTATIVES'
WARRANT AGREEMENT
Dated as of December 2, 1993
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REPRESENTATIVES' WARRANT AGREEMENT dated as of December 2, 1993, by and
among U.S. WIRELESS DATA, INC., a Colorado corporation (the "Company"), and RAS
SECURITIES CORP. and WALFORD & COMPANY INCORPORATED (hereinafter referred to as
the "Representatives").
W I T N E S E T H:
WHEREAS, the Company proposes to issue warrants to one or both of the
Representatives ("Warrants") to purchase up to an aggregate of 165,000 shares of
Class A Common Stock, no par value, of the Company at a price of $12.325 per
share of Common Stock; and
WHEREAS, the Representatives have agreed pursuant to the underwriting
agreement (the "Underwriting Agreement") dated as of December 2, 1993, by and
between the Representatives, to act as the representatives of the several
underwriters listed therein (the "Underwriters") and the Company, in connection
with the Company's proposed public offering of up to 1,650,000 shares of Common
Stock at an initial public offering price of $8.50 per share of Common Stock
(the "Public Offering"); and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Representatives in consideration for, and as
part of the Underwriters' compensation in connection with, the Representatives
acting as the representatives pursuant to the Underwriting Agreement;
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NOW, THEREFORE, in consideration of the premises, the payment by the
Representatives to the Company of an aggregate one hundred dollars ($100.00),
the agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Grant. The Representatives are hereby granted the right to purchase, at
any time from December 2, 1994, until 5:00 p.m., Pacific time on December 1,
1998 (the "Exercise Period"), up to an aggregate of 165,000 shares of Common
Stock at an initial exercise price of $12.325 per share of Common Stock, subject
to the terms and conditions of this Agreement. The Common Stock issuable upon
exercise of the Warrants are, except as otherwise set forth herein, in all
respects identical to the shares of Common Stock being purchased by the several
Underwriters for resale to the public pursuant to the terms and provisions of
the Underwriting Agreement.
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") to be delivered pursuant to this Agreement shall be in the form
set forth in Exhibit A, attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant.
3.1 Method of Exercise. The purchase rights evidenced by each Warrant
Certificate are exercisable at the option of the Holder (as defined herein)
thereof, in whole or in part, at any time or from time to time during the
Exercise Period. Upon surrender of a Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined), payable by certified or official
bank check in New York Clearing House funds, for the Common Stock purchased
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at the Company's principal offices in Colorado (presently located at 4888
Pearl East Circle, Suite 110, Boulder, Colorado 80301), the registered
holder of a Warrant Certificate ("Holder" or "Holders") shall be entitled
to receive a certificate or certificates for the Common Stock so purchased.
In the case of the purchase of less than all the Common Stock purchasable
under any Warrant Certificate, the Company shall cancel said Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Warrant Certificate of like tenor for the balance of the Common Stock
purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for Common Stock and/or other securities, properties or
rights underlying such Warrants, shall be made forthwith (and in any event
within five (5) business days thereafter) without charge to the Holder thereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of
Sections 5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Common Stock
and/or other securities, property or rights issuable upon the exercise of the
Warrants shall be executed on behalf of the Company by the manual or facsimile
signature of the then present Chairman or Vice Chairman of the Board of
Directors or President or Vice President of the Company under
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its corporate seal reproduced thereon, and by the manual or facsimile signature
of the then present Treasurer or Assistant Treasurer of Secretary or Assistant
Secretary of the Company. Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance, division, exchange, substitution
or transfer. Certificates representing the Common Stock and/or other securities,
property or rights issuable upon exercise of the Warrants shall be dated the
Notice Date (regardless of when executed or delivered) and dividend bearing
securities so issued shall accrue dividends from the Notice Date.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof; that the Warrants may not be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part, for a period of one (1) year from
the date hereof, except to the Representatives or officers of the
Representatives.
6. Exercise Price.
6.1 Initial and Adjusted Exercise Price. Except as otherwise provided
in Section 8 hereof, the initial exercise price of each Warrant for Common
Stock shall be $12.325. The adjusted exercise price for Common Stock shall
be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions
of Section 8 hereof.
6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price for Common Stock or the adjusted exercise price for
Common Stock, depending upon the context.
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7. Registration Rights.
7.1 Registration Under the Securities Act of 1933. The Warrants, the
Common Stock and any of the other securities issuable upon exercise of the
Warrants have not been registered under the Securities Act of 1933, as
amended (the "Act"). Upon exercise, in part or in whole, of the Warrants,
certificates representing the Common Stock underlying the Warrants and any
of the other securities issuable upon exercise of the Warrants
(collectively, the "Warrant Shares") shall bear the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended
("Act"), and may not be offered or sold except pursuant to (i)
an effective registration statement under the Act, (ii) to the
extent applicable, Rule 144 under the Act (or any similar rule
under such Act relating to the disposition of securities), or
(iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an
exemption from registration under such Act is available.
7.2 Piggyback Registration. If, at any time commencing after the date
hereof and expiring seven (7) years after the date hereof, the Company
proposes to register any of its securities under the Act (other than in
connection with a merger or other transaction using Form S-4 or pursuant to
Form S-8) it will give written notice by registered mail, at least thirty
(30) days prior to the filing of each such registration statement, to the
Representatives and to all other Holders of the Warrants and/or the Warrant
Shares of its intention to do so. If the Representatives or other Holders
of the Warrants and/or Warrant Shares notify the Company within twenty (20)
days after receipt of any such notice of its or their desire to include any
such securities in such proposed registration statement, the Company shall
afford each of the Representatives and such Holders of the Warrants and/or
Warrant Shares the
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opportunity to have any such Warrant Shares registered under such
registration statement; provided, however, that the Company shall not be
obligated to include any such Warrant Shares in a registration statement
which is declared effective by the Commission prior to December 2, 1994.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right any time after it shall have given written notice pursuant
to this Section 7.2 (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file
any such proposed registration statement, or to withdraw the same after the
filing but prior to the effective date thereof.
In the event of an underwritten offering of securities by the Company,
if the managing underwriter for any such offering advises the company in
writing that, in its opinion, the inclusion of the Warrant Shares with the
securities being registered by the Company would materially adversely
affect the distribution of such securities or the price therefor, then (i)
the number of the Warrant Shares to be sold by each Holder may be reduced
pro rata, but only after the number of securities to be sold by all sellers
(other than the Company or a seller who originated the registration
pursuant to demand registration rights) have been reduced to zero; or (ii)
a Holder of Warrant Shares may elect, at its option, to delay its offering
and sale for a period not to exceed ninety (90) days after the effective
date of such registration statement as such managing underwriter shall
reasonably request, in which event the Company shall use its best efforts
to effect the registration of such Warrant Shares under the Act following
the end of the period of such delay and shall pay all expenses of such
registration in accordance with Section 7.4(b) as if such registration were
effected pursuant to Section 7.3(a).
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7.3 Demand Registration.
(a) At any time commencing after the date hereof and expiring
five (5) years after the date hereof, the Holders of the Warrants
and/or Warrant Shares representing a "Majority" (as hereinafter
defined) of such securities (assuming the exercise of all of the
Warrants) shall have the right (which right is in addition to the
registration rights under Section 7.2 hereof), exercisable by written
notice to the Company, to have the Company prepare and file with the
Commission, on one occasion, a registration statement and such other
documents, including a prospectus, as may be necessary in the opinion
of both counsel for the Company and counsel for the Representatives
and Holders, in order to comply with the provisions of the Act, so as
to permit a public offering and sale of their respective Warrant
Shares for nine (9) consecutive months by such Holders and any other
Holders of the Warrant and/or Warrant Shares who notify the Company
within ten (10) days after receiving notice from the Company of such
request; provided, however, that prior to December 2, 1994, any such
demand may only relate to a registration statement designed to be
declared effective by the Commission no earlier than December 2, 1994.
(b) The Company covenants and agrees to give written notice of
any registration request under this Section 7.3 by any Holder or
Holders to all other registered Holders of the Warrants and the
Warrant Shares within ten (10) days from the date of the receipt of
any such registration request.
(c) In addition to the registration rights under Section 7.2 and
subsection (a) of this Section 7.3, at any time commencing after the
date hereof and expiring five (5) years after the date hereof, each
Holder of Warrants and/or Warrant Shares shall have
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the right exercisable by written request to the Company, to have the
Company prepare and file, on one occasion, with the Commission a
registration statement so as to permit a public offering and sale for
nine (9) consecutive months by any such Holder of its Warrant Shares;
provided, however, that the provisions of Section 7.4(b) hereof shall
not apply to any such registration request and such registration and
all costs incident thereto shall be at the expense of the Holder or
Holders making such request; provided, further, however, that prior to
December 2, 1994, any such demand may only relate to a registration
statement designed to be declared effective by the Commission no
earlier than December 2, 1994.
(d) Notwithstanding anything to the contrary contained herein, if
the Company shall not have filed a registration statement for the
Warrant shares within the time period specified in Section 7.4(a)
hereof pursuant to the written notice specified in Section 7.3(a) of a
Majority of the Holders of Warrants and/or Warrant Shares, the Company
agrees that upon the written notice of election of a Majority of the
Holders of Warrants and/or Warrant Shares it shall repurchase (i) any
and all Warrant Shares at the higher of the Market Price (as defined
in Section 7.3(e)) per share of Common Stock on (x) the date of the
notice sent pursuant to Section 7.3(a) or (y) the expiration of the
period specified in Section 7.4(a) and (ii) any and all Warrants at
such Market Price less the exercise price of such Warrant. Such
repurchase shall be in immediately available funds and shall close
within two (2) days after the later of (i) the expiration of the
period specified in Section 7.4(a) or (ii) the delivery of the written
notice of election specified in this Section 7.3(d).
(e) As used herein, the phrase "Market Price" at any date shall
be deemed to be the average of the last reported sale prices for the
last ten (10) trading days as
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officially reported by the principal securities exchange or the NASDAQ
National Market System on which the Common Stock is listed or admitted
to trading, or, if the Common Stock is not listed or admitted to
trading on any national securities exchange or the NASDAQ National
Market System, the average closing bid price as furnished by the NASD
through NASDAQ or similar organization if NASDAQ is no longer
reporting such information, or if the Common Stock is not quoted on
NASDAQ, as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to
it.
7.4 Covenants of the Company With Respect to Registration. In
connection with any registration under Section 7.2 or 7.3 hereof, the
Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement as soon as practicable, but in any event within (i)
seventy-five (75) days of receipt of any demand therefor in the case
where the Company is permitted to include in such registration
statement audited financial statements previously filed with the
Commission or (ii) ninety (90) days of receipt of any demand therefor
in the case where the Company is not permitted to include in such
registration statement audited financial statements previously filed
with the Commission and must undertake the preparation of audited
financial statements in connection with the filing of a registration
statement pursuant to this Section 7.3(a); shall use its best efforts
to have any registration statements declared effective at the earliest
possible time; and shall furnish each Holder desiring to sell Warrant
Shares such number of prospectuses as shall reasonably be requested.
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(b) The Company shall pay all costs (excluding fees and expenses
of Holder(s)' counsel and any underwriting or selling commission),
fees and expenses in connection with all registration statements filed
pursuant to Sections 7.2 and 7.3(a) hereof including, without
limitation, the Company's legal and accounting fees, printing
expenses, blue sky fees and expenses. The Holder(s) whose Warrant
Shares are the subject to such a registration statement will pay all
costs, fees and expenses in connection with any registration statement
filed pursuant to Section 7.3(c). If the Company shall fail to comply
with the provisions of Section 7.4(a), the Company shall, in addition
to any other equitable or other relief available to the Holder(s),
extend the Exercise Period by such number of days as shall equal the
delay caused by the Company's failure, and be liable for any or all
incidental, special and consequential damages and damages due to loss
of profit sustained by the Holder(s) requesting registration of their
Warrant Shares.
(c) The Company will take all necessary action which may be
required in qualifying or registering the Warrant Shares included in a
registration statement for offering and sale under the securities or
the blue sky laws of such states as reasonably are requested by the
Holder(s), provided that the Company shall not be obligated to execute
or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such
jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant
Shares to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of
Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to
which any of them may become subject under the Act, the Exchange Act
or otherwise, arising from such registration statement but only to the
same extent and with the same effect as the provisions pursuant to
which the Company has agreed to indemnify each of the Underwriters
contained in Section 7 of the Underwriting Agreement.
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(e) The Holder(s) of the Warrant Shares to be sold pursuant to a
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and
directors and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against all loss, claim, damage or expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under
the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such registration statement to the
same extent and with the same effect as the provisions contained in
Section 7 of the Underwriting Agreement pursuant to which the
Underwriters have agreed to indemnify the Company. Each Holder of
Warrant Shares to be sold pursuant to a registration statement
hereunder shall provide the Company with such information with respect
to such Holder as is required to be disclosed in the applicable form
of registration statement under the Act.
(f) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Warrants prior to the
initial filing of any registration statement or the effectiveness
thereof.
(g) The Company shall not permit the inclusion of any securities
other than the Warrant Shares to be included in any registration
statement filed pursuant to Section 7.3 hereof without the prior
written consent of the Holders of the Warrants and the Warrant shares
representing a Majority of such securities.
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(h) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart,
addressed to such Holder or underwriter, of (i) an opinion of counsel
to the Company, dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated
the date of the closing under the underwriting agreement) signed by
the independent public accountants who have issued a report on the
Company's financial statements included in such registration
statement, in each case covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public
offerings of securities.
(i) The Company shall as soon as practicable after the effective
date of the registration statement, and in any event within 15 months
thereafter, make "generally available to its security holders" (within
the meaning of Rule 158 under the Act) an earnings statement (which
need not be audited) complying with Section 11(a) of the Act and
covering a period of at least 12 consecutive months beginning after
the effective date of the registration statement.
(j) The Company shall deliver promptly to each Holder
participating in the offering requesting the correspondence and
memoranda described below and to the managing underwriters, copies of
all correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the
Commission or its staff with respect to the registration statement and
permit each Holder and underwriters to do such investigation, upon
reasonable advance notice, with respect to information contained in or
omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the
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National Association of Securities Dealers, Inc. ("NASD"). Such
investigation shall include access to books, records and properties
and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent and
at such reasonable times and as often as any such Holder or
underwriter shall reasonably request. At the reasonable request of the
Company, each Holder receiving such information shall enter into a
confidentiality agreement with the Company with respect to material
non-public information relating to the business, results of operations
or financial condition of the Company.
(k) The Company shall enter into an underwriting agreement with
the managing underwriters selected for such underwriting by Holders
holding a Majority of the Warrant Shares requested to be included in
such underwriting, which may be the Representatives. Such agreement
shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type
and by the managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their
Warrant Shares and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the
benefit of such underwriters shall also be made to and for the benefit
of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their
intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in
reference to the Holders of Warrants or Warrant Shares, shall mean in
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excess of fifty percent (50%) of the then outstanding Warrants or
Warrant Shares (assuming exercise of all of the Warrants and
conversion of all Common Stock) that (i) are not held by the Company,
an affiliate, officer, creditor, employee or agent thereof or any of
their respective affiliates, members of their family, persons acting
as nominees or in conjunction therewith or (ii) have not been resold
to the public pursuant to a registration statement filed with the
Commission under the Act or pursuant to Rule 144 under the Act.
(m) Any transfer of a Warrant shall constitute an automatic
transfer and assignment of the registration rights set forth in
Section 7 hereof with respect to the shares of Common Stock or other
securities, properties or rights underlying the Warrants.
(n) For a period equal to the lesser of (i) seven (7) years from
the date hereof, and (ii) the sale to the public of all Warrant Shares
issuable hereunder, the Company will not take any action or actions
which may prevent or disqualify the Company's use of Form SB-2 (or
other appropriate form) for the registration under the Act of the
Warrant Shares.
8. Adjustments to Exercise Price and Number of Securities.
8.1 Computation of Adjusted Exercise Price. Except as hereinafter
provided, in case the Company shall at any time after the date hereof issue
or sell any shares of Common Stock (other than the issuances or sales
referred to in Section 8.7 hereof), including shares held in the Company's
treasury and shares of Common Stock (but excluding shares of Common Stock
issued upon the exercise of any options, rights or warrants to subscribe
for shares of Common Stock and shares of Common Stock issued upon the
direct or indirect conversion or exchange of securities for shares of
Common Stock), for a consideration per share less than the Fair Market
Value or Market Price per share of Common Stock, as the case may be, on the
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date immediately prior to the issuance or sale of such shares, or without
consideration, then forthwith upon such issuance or sale, the Exercise
Price shall (until another such issuance or sale) be reduced to the price
(calculated to the nearest full cent) determined by dividing (i) an amount
equal to the sum of (a) the total number of shares of Common Stock
outstanding immediately prior to the issuance or sale of such shares,
multiplied by the Exercise Price per share of Common Stock in effect
immediately prior to such issuance or sale, and (b) the aggregate of the
amount of all consideration, if any, received by the Company upon such
issuance or sale, by (ii) the total number of shares of Common Stock
outstanding immediately after such issuance or sale; provided, however,
that in no event shall the Exercise Price be adjusted pursuant to this
computation to an amount in excess of the Exercise Price in effect
immediately prior to such computation.
For purposes of this Section 8, the term Exercise Price shall mean the
Exercise Price as set forth in Section 6 hereof, as adjusted from time to
time pursuant to the provisions of this Section 8.
For the purposes of any computation to be made in accordance with this
Section 8.1, the following provisions shall be applicable:
(i) In case of the issuance or sale of shares of Common Stock for
a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash
received by the Company for such shares (or, if shares of Common Stock
are offered by the Company for subscription, the subscription price,
or, if either of such securities shall be sold to underwriters or
dealers for public offering without a subscription offering, the
initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing
similar services, or any expenses incurred in connection therewith.
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(ii) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares
of Common Stock for a consideration part or all of which shall be
other than cash, the amount of the consideration therefor other than
cash shall be deemed to be the value of such consideration as
determined in good faith by the Board of Directors of the Company.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following
the record date for the determination of stockholders entitled to
receive such dividend or other distribution and shall be deemed to
have been issued without consideration.
(iv) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common
Stock shall be deemed to involve the issuance of such shares of Common
Stock for a consideration other than cash immediately prior to the
close of business on the date fixed for the determination of security
holders entitled to receive such shares, and the value of the
consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (ii) of this Section 8.1.
(v) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or
issuable (subject to readjustment upon the actual issuance thereof)
upon the exercise of options, rights, warrants and upon the conversion
or exchange of convertible or exchangeable securities.
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(vi) The terms "Fair Market Value" and "Market Price" are used
from time to time for making certain determinations hereunder. "Fair
Market Value" shall be utilized if the Common Stock is not traded on
any securities exchange or the NASDAQ National Market System, quoted
on NASDAQ or any similar organization, and shall be the value of
Common Stock determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to
it. "Market Price" shall be utilized if a public trading market has
been established for the Common Stock, and shall, at any date, be
deemed to be the average of the last reported sale prices for the last
ten (10) trading days as officially reported by the principal
securities exchange on the NASDAQ National Market System on which the
Common Stock is listed or admitted to trading, or, if the Common Stock
is not listed or admitted to trading on any national securities
exchange on the NASDAQ National Market System, the average closing bid
as furnished by NASDAQ or similar organization.
8.2 Options, Rights and Warrants. In case the Company shall at any
time after the date hereof issue options, rights or warrants to subscribe
for shares of Common Stock, or issue any securities convertible into or
exchangeable for shares of Common Stock, with an exercise or conversion
price per share less than the Fair Market Value or Market Price, as the
case may be, immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, or without
consideration, then for purposes of any computation to be made in
accordance with Section 8.1, the following provisions shall be applicable:
(a) The aggregate maximum number of shares of Common Stock, as
the case may be, issuable under such options, rights or warrants shall
be deemed to be issued and outstanding at the time such options,
rights or warrants were issued, and for a consideration equal to the
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minimum purchase price per share provided for in such options, rights
or warrants at the time of issuance, plus the consideration
(determined in the same manner as consideration received on the issue
or sale of shares in accordance with the terms of the Warrants), if
any, received by the Company for such options, rights or warrants.
(b) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or
exchangeable securities shall be deemed to be issued and outstanding
at the time of issuance of such securities, and for a consideration
equal to the consideration (determined in the same manner as
consideration received on the issue or sale of shares of Common Stock
in accordance with the terms of the Warrants) received by the Company
for such securities, plus the minimum consideration, if any,
receivable by the Company upon the conversion or exchange thereof.
(c) If any change shall occur in the price per share provided for
in any of the options, rights or warrants referred to in subsection
(a) of this Section 8.2, or in the price per share at which the
securities referred to in subsection (b) of this Section 8.2 are
convertible or exchangeable, such options, rights or warrants or
conversion or exchange rights, as the case may be, shall be deemed to
have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the
exercise or conversion or exchange thereof, and the Company shall be
deemed to have issued upon such date new options, rights or warrants
or convertible or exchangeable securities at the new price in respect
of the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible
or exchangeable securities.
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(d) Upon the expiration of any of the options, warrants or rights
referred to in subsection (a) of this Section 8.2, or the securities
referred to in subsection (b) of this Section 8.2, if such shall not
have been exercised, converted or exchanged, as the case may be, the
Exercise Price, to the extent that Warrants have not been exercised,
shall, upon such expiration, be readjusted and shall thereafter be set
(A) if any of such options, warrants or rights have been exercised or
such convertible or exchangeable securities have been converted or
exchanged, as the case may be, at a level at which it would have been
if originally adjusted on the basis of (i) the fact that the only
shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such options,
warrants or rights or the conversion or exchange or such convertible
or exchangeable securities and (ii) such shares of Common Stock, if
any, were issued or sold for the consideration actually received by
the Company for the issuance, sale or grant of all such options,
warrants, rights or convertible or exchangeable securities, whether or
not exercised, plus the consideration actually received by the Company
upon the exercise, conversion or exchange of such options, warrants,
rights or convertible or exchangeable securities, or (B) if none of
such options, warrants or rights have been exercised or such
convertible or exchangeable securities have been converted or
exchanged, as the case may be, at a level at which it would have been
if such original adjustment had not been required; provided, however,
that no such readjustment shall have the effect of increasing the
Exercise Price in effect immediately prior to such readjustment by a
proportion greater than the aggregate proportional adjustment
originally made upon the issue, sale or grant of such options,
warrants, rights, or convertible or exchangeable securities.
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8.3 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
shares of Common Stock issuable upon the exercise at the adjusted Exercise
Price of each Warrant shall be adjusted to the nearest full amount by
multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable
upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
8.4 Definition of Common Stock. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Certificate of Incorporation of the Company as may be amended
as of the date hereof, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting
solely of changes in par value, or from par value to no par value, or from
no par value to par value. In the event that the Company shall after the
date hereof issue securities with greater or superior voting rights than
the shares of Common Stock outstanding as of the date hereof, the Holder,
at its option, may receive upon exercise of any Warrant either shares of
Common Stock or a like number of such securities with greater or superior
voting rights.
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8.5 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not
result in any reclassification or change of the outstanding Common Stock or
other securities issuable upon exercise of the Warrants), or in the case of
any sale or conveyance to another person, corporation or other entity of
the property of the Company as an entirety or substantially as an entirety,
then, as a condition of such consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing entity, as the case may be, shall
execute and deliver to the Holder a supplemental warrant agreement
providing that the holder of each Warrant then outstanding or to be
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such warrant, the kind and amount of
shares of securities, rights and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of
Warrant Shares of the Company for which such Warrant might have been
exercised immediately prior to such consolidation, merger, sale or
conveyance. Such supplemental warrant agreement shall provide for
adjustments which shall be identical to the adjustment provided in Section
8. The above provision of this subsection shall similarly apply to
successive consolidations, mergers, sales or conveyances.
8.6 No Adjustment of Exercise Price in Certain Cases. No adjustment of
the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants, Warrant Shares or
shares of Common Stock issuable upon the exercise of the Warrants, as
the case may be; or
(b)The issuance or sale of shares of Common Stock pursuant to
options, warrants, stock purchase agreements; or
(c) If the amount of said adjustment shall be less than one
percent (1%) of the then current Exercise Price, provided, however,
that in such case any adjustment that would otherwise be required then
to be made shall be carried forward and shall be made at the time of
and together with the next subsequent adjustment which, together with
any adjustment so carried forward, shall amount to at least one
percent (1%) of the then current Exercise Price.
8.7 Dividends and Other Distributions.
(a) In the event that the Company shall at any time prior to the
exercise of all Warrants declare a dividend or otherwise distribute to
its holders of Common Stock any assets, property, rights, evidences or
indebtedness, securities, whether issued by the Company or by another,
or any other thing of value, then, in each case, the Exercise Price
shall be reduced to the price (calculated to the nearest full cent)
determined by multiplying (i) the Exercise Price on the record date
for determining stockholders entitled to receive such dividend or
distribution by (ii) a fraction, the numerator of which is the result
of such Exercise Price reduced by the amount of such dividend or
distribution applicable to one share of Common Stock and the
denominator of which is such Exercise Price.
(b) Such adjustment shall be made on the record date for
determination of stockholders entitled to receive such dividend or
distribution.
8.8 Validity of Warrant Certificate. Irrespective of any adjustments
or changes in the Exercise Price or the amount of Warrant Shares
purchasable upon exercise of the Warrants, the Warrant Certificate
theretofore and thereafter issued shall, unless the Company shall exercise
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its option to issue new Warrant Certificates pursuant to Section 2 hereof,
continue to express the Exercise Price per share and the amount of Warrant
Shares purchasable thereunder as of the date such Warrant Certificates were
originally issued, but the Holders shall be entitled to exercise Warrants
represented by such Warrant Certificates after giving effect to each such
adjustment and change and such Warrant Certificate shall be deemed to be
incorporate each such adjustment and change as if now Warrant Certificate
reflecting each such adjustment and change had been issued to the Holders
pursuant to Section 2 hereof.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Shares in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or distribution, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of shares of Common Stock or other securities, properties
or rights.
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11. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized capital stock, solely for the
purpose of issuance of Common Stock upon the exercise of the Warrants, such
number of shares of Common Stock (or other securities, properties or rights) as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that upon exercise of the Warrants and payment of the Exercise Price, all shares
of Common Stock and other securities issuable upon such exercise shall be duly
and validly issued, fully paid, non-assessable and not subject to the preemptive
rights of any stockholder. As long as the Warrants shall be outstanding, the
Company shall use its best efforts to cause all shares of Common Stock issuable
upon the exercise of the Warrants to be listed (subject to official notice of
issuance) on all securities exchanges or the NASDAQ National Market System on
which the Common Stock may then be listed and/or quoted on NASDAQ.
12. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as conferring upon the Holders the right to vote or to consent or
to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) The Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company; or
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(b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option, right or warrant to subscribe therefor; or
(c) A dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entity shall
be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration of payment or any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
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13. Notices.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made and sent when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 hereof or
to such other address as the Company may designate by notice to the
Holders.
14. Supplements and Amendments. The Company and the Representatives may
from time to time supplement or amend this Agreement without the approval of any
holders of Warrant Certificates (other than the Representatives) in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company and the Representatives may deem necessary or desirable and which
the Company and the Representatives deem shall not adversely affect the
interests of the Holders of the Warrant Certificates.
15. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close of business on
December 1, 2000. Notwithstanding the foregoing, the indemnification provisions
of Section 7 shall survive such termination until the close of business on
December 1, 2006.
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17. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws. The Company, the Representatives and
the Holders hereby agree that any action, proceeding or claim against it arising
out of, or relating in any way to, this Agreement shall be brought and enforced
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company, the Representatives and the
Holders hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any such process or summons to be served upon any of the
Company, the Representatives and the Holders (at the option of the party
bringing such action, proceeding or claim) may be served by transmitting a copy
thereof, by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 13 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
party so served in any action, proceeding or claim. The Company, the
Representatives and the Holders agree that the prevailing party(ies) in any such
action or proceeding shall be entitled to recover from the other party(ies) all
if its/their reasonable legal costs and expenses relating to such action or
proceeding and/or incurred in connection with the preparation therefor.
18. Equitable Relief. The Company acknowledges that the Warrants and the
Warrant Shares are unique, and that any violation of this Agreement, including,
but not limited to, Section 3, Section 7 and Section 8 hereof, cannot be
compensated for by damages alone. Accordingly, in addition to all of the other
remedies which may be available hereunder or under applicable law, either
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Representative and any Holder shall have the right to any equitable relief which
may be appropriate to remedy a breach of threatened breach by the Company
hereunder, including, without limitation, the right to enforce specifically the
terms of this Agreement by obtaining injunctive relief in respect of any
violation or non-performance hereof.
19. Entire Agreement; Modification. This Agreement (including the
Underwriting Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
20. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
21. Captions. The caption headings of the sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
22. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Representatives and nay other registered Holder(s) of the Warrant Certificates
or Warrant Shares any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and Certificates or Warrant
Shares.
23. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
[SEAL] U.S. WIRELESS DATA, INC.
By: /s/ Maurice R. Caldwell, Jr.
----------------------------------
Name: Maurice R. Caldwell
Title: President/CEO
Attest:
/s/ Michael J. Brisnehan
- ------------------------
Name:
Title: Secretary
RAS SECURITIES CORP.
By: /s/ Robert A. Schneider
Name:
Title:
WALFORD & COMPANY INCORPORATED
By: /s/ Donald Walford
Name: Donald Walford
Title: President
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EXHIBIT 4.2
U.S. WIRELESS DATA, INC.
STOCK PURCHASE WARRANT
THE WARRANTS EVIDENCED HEREBY AND THE SHARES OF STOCK
ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND
MAY NOT OFFERED OR SOLD WITHOUT REGISTRATION UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER SUCH ACT OR
THE RULES OR REGULATIONS PROMULGATED THEREUNDER
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
AS DESCRIBED HEREIN
Date: April 12, 1993 Warrant No. 1
This certifies that, for value received:
Name: James B. Walters
or his registered assigns are entitled to purchase during the period described
in Section 5 below, expiring April 12, 1998, from U.S. Wireless Data, Inc., a
Colorado corporation (the "Company"), having its principal office at 4888 Pearl
East Circle, Suite 110, Boulder, Colorado 80301, that number of shares of fully
paid and nonassessable Class A Common Stock of the Company as are described in
Section 1 (the "Stock"), at the exercise price described in Section 2 below,
which price may be adjusted as described below (the "Warrant Price"), subject to
the terms set forth herein. The holder(s) of this Warrant and/or a registered
assign or assigns, shall be referred to herein as the "Warrantholder." This
Warrant is being issued in consideration of accepting appointment as a director
of the Company.
1. Stock Purchasable. The number of shares of Stock purchasable upon the
exercise of this Warrant is 50,000.
2. Exercise Price. The price at which this Warrant is exercisable, unless
such price is adjusted as described below, is $4.00 per share of Stock
purchased.
3. Expiration of Warrant. This Warrant shall expire and be no longer
exercisable after April 12, 1998 ("Expiration Date").
4. Amended Consulting Agreement. In addition to the terms set forth herein,
this Warrant shall be subject to the terms and conditions set forth in the
Amendment to Independent Contractor Consulting Agreement between the Company and
<PAGE>
the Warrantholder effective August 15, 1992 ("Amended Consulting Agreement"), a
copy of which is attached hereto.
5. Exercise of Warrants. This Warrant may be exercised as to one-third of
the total shares covered by this Warrant commencing April 12, 1994, as to an
additional one-third of the total shares covered by this Warrant on April 12,
1995, and as to the remaining one-third of the total shares covered by this
Warrant on April 12, 1996. However, if Warrantholder should be removed or resign
as a director of the Company prior to the end of such three-year period for any
reason, or upon the effectiveness of the registration statement for the public
offering of any securities of the Company, the total amount of the shares
covered by this Warrant shall immediately become exercisable. Further, upon the
effectiveness of the registration statement described in paragraph 4(c) of the
Amended Consulting Agreement, the total shares covered by this Warrant shall
immediately become exercisable. If such registration statement does not become
effective, the shares covered by this Warrant shall not become exercisable
except as otherwise described in this paragraph. The purchase rights represented
by this Warrant may be exercised in whole or in part (but not as to a fractional
share of Stock), by the Warrantholder or his or her duly authorized attorney or
representative at any time and from time to time while this Warrant is
exercisable, upon presentation of this Warrant at the principal office of the
Company, with the purchase form attached hereto duly completed and signed, and
upon payment to the Company in cash or by certified check or bank draft of an
amount equal to the number of shares being so purchased multiplied by the
Warrant Price.
6. Procedures. The Company agrees that the Warrantholder shall be deemed
the record owner of the Stock as of the close of business on the date on which
the Warrant shall have been presented and payment shall have been made for the
Stock as aforesaid. Certificates for the shares of Stock so purchased shall be
delivered to the Warrantholder within a reasonable time, not exceeding 15 days,
after the exercise in full of the rights represented by this Warrant.
If the Warrant is exercised in part only, the Company, upon surrender of
this Warrant for cancellation, shall deliver a new Warrant evidencing the rights
of the Warrantholder to purchase the balance of the shares of Stock which the
Warrantholder is entitled to purchase hereunder.
The Warrantholder shall be entitled to have the Stock included in any
registration statement filed by the Company under the Securities Act of 1933, as
amended, on an appropriate form subsequent to the registration statement filed
in connection with the Company's initial public offering of common stock.
7. Exchange of Warrants. Subject to the provisions of Section 11 (i) this
Warrant is exchangeable at the option of the Warrantholder at the principal
office of the Company for other Warrants of different denominations entitled the
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Warrantholder to purchase the same aggregate number of shares of Stock as are
purchasable hereunder; and (ii) this Warrant may be divided or combined with
other warrants that carry the same rights. In either case, any alterations shall
be made upon presentation, at the principal office of the Company, of the
Warrant(s), together with a written notice signed by the Warrantholder
specifying the names and denominations in which any new Warrants are to be
issued and the payment of any transfer tax due in connection therewith.
8. Anti-Dilution Provisions. The Warrant Price and the number of shares
purchasable upon the exercise of each Warrant are subject to adjustment from
time to time upon the occurrence of any of the events specified in this Section
8. Upon exercise of the Warrant, the Warrantholder shall have all the rights and
preferences of a holder of Stock, but shall have no rights of a holder of Stock
until such Warrant has been exercised as set forth above.
(a) Stock Splits and Dividends. In case the Company shall (i) pay a
dividend in shares of Stock or make a distribution in shares of Stock, (ii)
subdivide its outstanding shares of Stock, (iii) combine its outstanding
shares of Stock into a smaller number of shares of Stock, or (iv) issue by
reclassification of its shares of Stock other securities of the Company,
the number of shares of Stock purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Warrantholder shall
be entitled to receive the kind and number of shares of Stock or other
securities of the Company which Warrantholder would have owned or would
have been entitled to receive after the occurrence of any of the events
described above had such Warrant been exercised immediately prior to the
occurrence of such event or any record date with respect thereto. An
adjustment made pursuant to this Section 8(a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for the event.
(b) Distribution of Stock and Equivalents. In case the Company shall
distribute or sell at less than fair market value to all holders of its
shares of Stock evidences of its indebtedness or assets or, except for
transactions covered by 7(a), shares of its stock (excluding distributions
referred to in Section 8(a) above) or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe
for or purchase shares of Stock, then, in each case, the number of shares
of Stock thereafter purchasable upon the exercise of this Warrant shall be
determined by multiplying the number of shares of Stock theretofore
purchasable upon the exercise of this Warrant by a fraction, the numerator
of which shall be the then-current Warrant Price per share of Stock on the
date of such distribution, and the denominator of which shall be such
current Warrant Price per share of Stock, plus the Fair Market Value of
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any consideration received by the Company, less the then-current fair value
(as determined by the Board of Directors of the Company) of the portion of
the assets or evidences of indebtedness so distributed or of such rights,
options or warrants, or of such convertible or exchangeable securities
applicable to one share of Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution, retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(c) Reorganization. In case the Company shall effect a consolidation,
merger or a sale of substantially all of the assets (collectively, the
"Transfer") of the Company, then as a condition of such Transfer, lawful
and adequate provision shall be made so that the Warrantholder shall
thereafter have the right to purchase and receive upon the basis and terms
set forth in this Warrant (and in lieu of the shares of Stock immediately
issuable upon exercise of this Warrant), such shares of stock or securities
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Stock the Warrantholder would have received had
such Transfer not taken place. Further, appropriate provision shall be made
with respect to the rights of the Warrantholder so that the provisions of
this Warrant (including, without limitation, provisions for adjustment of
the Warrant Price and number of shares issuable upon exercise) shall be
applicable as nearly as practicable, in relation to any shares of stock or
securities thereafter deliverable upon the exercise hereof.
(d) New Securities. In the event that at any time, as a result of an
adjustment made pursuant to this Section 8, the Warrantholder shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter, the number of such other shares so purchasable upon exercise of
this Warrant, and the Warrant Price with respect to such shares, shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Stock
purchasable upon exercise of this Warrant contained in Section 8(a) through
8(f), inclusive, and the balance of the provisions hereof shall apply on
like terms to any such other shares.
(e) Immaterial Adjustments. No adjustment in the number of shares of
Stock purchasable hereunder shall be required unless such adjustment would
require an increase or decrease of at least 1% in the number of shares of
Stock purchasable upon the exercise of this Warrant; provided, however,
that any adjustments that by reasons of this Section 8(e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share.
(f) Adjustment of Warrant Price. Whenever the number of shares of
Stock purchasable upon the exercise of this Warrant is adjusted, as herein
provided, the Warrant Price shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, the numerator of
which shall be the number of shares of Stock purchasable upon the exercise
of this Warrant immediately prior to such adjustment, and the denominator
of which shall be the number of shares of Stock so purchasable immediately
thereafter.
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<PAGE>
(g) Fractional Shares. No fractional shares of Stock shall be issued
in connection with the exercise of any Warrants, but the Company, in lieu
of such fractional shares, shall make such cash payment therefor on the
basis of the conversion price on the day immediately prior to exercise.
(h) No Change to State Warrant Price, Etc. Irrespective of any
adjustments pursuant to this Section 8 to the Warrant Price or to the
number of shares or other securities or other property obtainable upon
exercise of this Warrant, this Warrant may continue to state the Warrant
Price and the number of shares obtainable upon exercise as the same price
and number of shares stated herein.
9. Covenants. The Company covenants and agrees that:
(a) Reservation of Stock. During the period within which the rights
represented by the Warrant may be exercised, the Company shall, at all
times, reserve and keep available, free from preemptive rights out of the
aggregate of its authorized but unissued Stock, for the purpose of enabling
it to satisfy any obligation to issue shares of Stock upon the exercise of
this Warrant, the number of shares of Stock deliverable upon the exercise
of this Warrant. If at any time the number of shares of authorized Stock
shall not be sufficient to effect the exercise of this Warrant, the Company
shall take such corporate action as may be necessary to increase its
authorized but unissued Stock to such number of shares as shall be
sufficient for such purpose. The Company shall have analogous obligations
with respect to any other securities or properties issuable upon exercise
of this Warrant;
(b) No Liens, Etc. All Stock that may be issued upon exercise of the
rights represented by this Warrant shall, upon issuance, be validly issued,
fully paid, nonassessable and free from all taxes, liens and charges with
respect to the issue thereof;
(c) Taxes. All original issue taxes payable with respect to the
issuance of shares upon the exercise of the rights represented by this
Warrant shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the transfer
of any Warrant;
(d) No Diminution of Value. The Company shall not take any action to
terminate this Warrant or to diminish it in value; and
(e) Notice of Events. The Company shall give prior written notice to
the Warrantholder of (i) any tender offer that is being made for the
Company's stock; (ii) any offer to holders of Stock for subscription or
purchase by them of any shares of stock of any class; (iii) any capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, the sale, lease or transfer of all or substantially all of the
property or assets of the Company to another corporation or the voluntary
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<PAGE>
or involuntary dissolution, liquidation or winding up of the Company and
(iv) any event of the type described in Section 8 hereof (all such events
in clauses (i)-(iv) above are referred to as "Events"). Upon becoming aware
of any pending or proposed Event, the Company shall deliver notice at least
five business days before the day of the occurrence of any Event and shall
describe the Event, the date it is to take place and when the holders of
the Company's stock will be entitled to exchange their shares for
securities or other properties deliverable upon such Event.
10. Voting Rights. Until exercised, this Warrant shall not entitle the
Warrantholder to any voting rights or other rights as a stock holder of the
Company.
11. Transfer Restrictions. A Warrantholder may transfer his beneficial
interest or any portion thereof in the Warrant only to the Warrantholder's
spouse, lineal descendants or ancestors (and their spouses) or the trustee of a
trust for the principal benefit of such persons. Any transfer of ownership or
control of a corporation or other entity which is a Warrantholder shall be
deemed a transfer of this Warrant which must comply with the terms of this
Section 11. In addition, neither this Warrant nor the Stock issuable upon the
exercise hereof may be sold, transferred, pledged or hypothecated unless the
Company shall have been supplied with evidence reasonably satisfactory to it
that such transfer is not in violation of the Securities Act of 1933, as amended
(the "Act"), and any applicable state laws. The Company may place a legend to
that effect on this Warrant or any replacement Warrant and on each certificate
representing shares issuable upon exercise of this Warrant. Subject to the
satisfaction of the aforesaid condition, this Warrant shall be transferable by
the Warrantholder.
If this Warrant is transferred, in whole or in part, upon surrender of this
Warrant to the Company, the Company shall deliver to each transferee a Warrant
evidencing the rights of such transferee to purchase the number of shares of
Stock that such transferee is entitled to purchase pursuant to such transfer.
12. Stockholder Communications. Until the exercise or expiration of this
Warrant, the Company shall provide each Warrantholder with each and every report
or other communication mailed to the stockholders of the Company.
13. Lost, Stolen Warrants. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond, issue a
new Warrant of like denomination, tenor and date. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
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14. Provisions of New Warrants. Any Warrant issued pursuant to the
provisions of Section 15, or upon transfer, exchange, division or partial
exercise of this Warrant or combination thereof with another Warrant or
Warrants, shall set forth each provision set forth in Sections 1 through 27,
inclusive, of this Warrant as each such provision is set forth herein, and shall
be duly executed on behalf of the Company by an executive officer.
15. Cancellation of Warrant. Upon surrender of this Warrant for transfer or
exchange or upon the exercise hereof, this Warrant shall be cancelled by the
Company, shall not be reissued by the Company, and, except as provided in
Section 6 in case of a partial exercise, in Section 7 in case of an exchange, or
in Section 11 in case of a transfer, no Warrant shall be issued in lieu hereof.
Any new Warrant certificate shall be issued promptly but no later than seven
days after receipt of the old Warrant certificate; provided, however, that the
obligation of the Company to transfer the Warrant or issue the shares of Stock
upon the exercise of this Warrant shall be subject to compliance with Section
11.
16. Complete Agreement; Modifications. This Warrant and any documents
referred to herein or executed contemporaneously herewith constitute the
parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof. This Warrant may not be amended, altered or modified except by a writing
signed by the parties.
17. Cooperation. Each party hereto agrees to execute any and all further
documents and writings and perform such other reasonable actions which may be or
become necessary or expedient to effectuate and carry out this Warrant.
18. Notices. All notices under this Warrant will be in writing and will be
delivered by personal service or telegram, telecopy or certified mail (if such
service is not available, then by first class mail), postage prepaid, to such
address as may be designated from time to time by the relevant party, and which
will initially be as set forth below. Any notice sent by certified mail will be
deemed to have been given three (3) days after the date on which it is mailed.
All other notices will be deemed given when received. No objection may be made
to the manner of delivery of any notice actually received in writing by an
authorized agent of a party. Notices will be addressed as follows or to such
other address as the party to whom the same is directed will have specified in
conformity with the foregoing:
(i) If to the Company:
U.S. Wireless Data, Inc.
4888 Pearl East Circle, Suite 110
Boulder, Colorado 80301
Attn: Maurice R. Caldwell, Jr.
Telephone: (303) 440-5464
Fax: (303) 440-5640
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<PAGE>
With an additional copy to:
Alan W. Peryam, Esq.
Hopper and Kanouff, P.C.
1610 Wynkoop Street
Suite 200
Denver, Colorado 80202
Telephone: (303) 892-6000
Fax: (303) 892-0457
(ii) If to Warrantholder:
To the Warrantholder and addresses set forth on the
last page hereof.
19. Successor and Assigns. Except as provided herein to the contrary, this
Warrant shall be binding upon and inure to the benefit of the parties, their
respective successors and permitted assigns.
20. Governing Law; Jurisdiction. This Warrant has been negotiated and
entered into in the State of Colorado, and all questions with respect to the
Warrant and the rights and liabilities of the parties shall be governed by the
laws of that state, regardless of the choice of law provisions of Colorado or
any other jurisdiction. Any and all disputes between the parties which may arise
pursuant to this Warrant shall be heard and determined before the appropriate
federal or state court located in Denver, Colorado. The parties hereto
acknowledge that such court has jurisdiction to interpret and enforce the
provisions of this Warrant and the parties waive any and all objections that
they may have as to venue in any of the above courts.
21. Construction. No term or provision of this Warrant shall be construed
so as to require the commission of any act contrary to law, and wherever there
is any conflict between any provision of this Warrant and any present or future
statute, law, ordinance, or regulation contrary to which the parties have no
legal right to contract, the latter shall prevail, but in such event the
provision of this Warrant so affected shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law.
22. Waivers Strictly Construed. With regard to any power, remedy or right
provided herein or otherwise available to any party hereunder (i) no waiver or
extension of time shall be effective unless expressly contained in a writing
signed by the waiving party; and (ii) no alteration, modification or impairment
shall be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
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<PAGE>
23. Severability. The validity, legality or enforceability of the remainder
of this Warrant shall not be affected even if one or more of the provisions of
this Warrant shall be held to be invalid, illegal or unenforceable in any
respect.
24. Headings. The headings in this Warrant are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of
this Warrant or of any particular provision.
25. Counterparts. This Warrant may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one or the same instrument.
26. Attorney's Fees. Should any litigation be commenced (including any
proceedings in a bankruptcy court) between the parties hereto or their
representatives concerning any provision of this Warrant or the rights and
duties of any person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the attorney's fees and court costs incurred by reason of such
litigation.
27. No Brokers Etc. Fees. Each party hereto represents that it is not and
will not be obligated for any finder's or broker's fee or commission in
connection with this Warrant or any agreement referred to herein or contemplated
hereby. The Company agrees to indemnify and hold harmless the Warrantholder from
any liability for any commission or compensation in the nature of a finder's or
broker's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is alleged to be responsible.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed effective as of April 12, 1993.
U.S. WIRELESS DATA, INC.
By: /s/ Maurice R. Caldwell, Jr.
-----------------------------------
(SEAL) Maurice R. Caldwell, Jr., President
ADDRESS OF WARRANTHOLDER:
James B. Walters
-----------------------------
4141 Colorado Blvd.
-----------------------------
Denver, CO 80216
-----------------------------
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<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, __________________________________________________
hereby sells, assigns and transfers to ____________________________________the
within Warrant, together with all rights, title and interest therein, and does
hereby irrevocably constitute and appoint ___________________________________
attorney to transfer such Warrant on theregister of the within-named Company,
with full power of substitution.
Dated: ______________________ ______________________________________
Signature
Signature Guaranteed:
____________________________________
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<PAGE>
PURCHASE FORM
To Be Executed
Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase shares of Stock,
evidenced by the within Warrant, according to the terms and conditions thereof,
and herewith [makes payment of the purchase price in full] [or requests that the
Company exchange the Warrant as provided in Section 6 of the Warrant]. The
undersigned requests that certificate(s) for such shares shall be issued in the
name set forth below.
Dated: _________________________
[NAME OF HOLDER]
By: _______________________________
Signature
Name:______________________________
(Please Print)
Address:___________________________
___________________________________
___________________________________
Employer Identification Number, Social
Security Number or other identifying
number:
___________________________________
If said number of shares shall not be all the shares purchasable under
the within Warrant, the Warrantholder hereby requests that a new Warrant for the
unexercised portion shall be registered in the name set forth below and
delivered to the address set forth below:
Name:___________________________________
(Please Print)
Address:________________________________
________________________________________
________________________________________
Employer Identification Number, Social
Security Number or other identifying
number: ________________________________
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EXHIBIT 4.3
U.S. WIRELESS DATA, INC.
STOCK PURCHASE WARRANT
THE WARRANTS EVIDENCED HEREBY AND THE SHARES OF STOCK
ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND
MAY NOT OFFERED OR SOLD WITHOUT REGISTRATION UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER SUCH ACT OR
THE RULES OR REGULATIONS PROMULGATED THEREUNDER
WARRANT TO PURCHASE SHARES OF CLASS A COMMON STOCK
AS DESCRIBED HEREIN
Date: May 1, 1993 Warrant No. 3
This certifies that, for value received:
Name: Kenneth D. DeJohn
or his registered assigns are entitled to purchase during the period described
in Section 4 below, expiring May 1, 203, from U.S. Wireless Data, Inc., a
Colorado corporation (the "Company"), having its principal office at 4888 Pearl
East Circle, Suite 110, Boulder, Colorado 80301, that number of shares of fully
paid and nonassessable Class A Common Stock of the Company as are described in
Section 1 (the "Stock"), at the exercise price described in Section 2 below,
which price may be adjusted as described below (the "Warrant Price"), subject to
the terms set forth herein. The holder(s) of this Warrant and/or a registered
assign or assigns, shall be referred to herein as the "Warrantholder." This
Warrant is being issued in consideration of accepting of accepting employment
with the Company as Vice President of Manufacturing.
1. Stock Purchasable. The number of shares of Stock purchasable upon the
exercise of this Warrant is 150,000.
2. Exercise Price. The price at which this Warrant is exercisable, unless
such price is adjusted as described below, is $4.00 per share of Stock
purchased.
3. Expiration of Warrant. This Warrant shall expire and be no longer
exercisable after May 1, 2003 ("Expiration Date").
4. Exercise of Warrants. This Warrant may be exercised as to the entire
amount of the shares covered by the Warrant after one year of the
Warrantholder's continuous service to the Company (May 1, 1994). The purchase
<PAGE>
rights represented by this Warrant may be exercised in whole or in part (but not
as to a fractional share of Stock), by the Warrantholder or his or her duly
authorized attorney or representative at any time and from time to time while
this Warrant is exercisable, upon presentation of this Warrant at the principal
office of the Company, with the purchase form attached hereto duly completed and
signed, and upon payment to the Company in cash or by certified check or bank
draft of an amount equal to the number of shares being so purchased multiplied
by the Warrant Price.
5. Procedures. The Company agrees that the Warrantholder shall be deemed
the record owner of the Stock as of the close of business on the date on which
the Warrant shall have been presented and payment shall have been made for the
Stock as aforesaid. Certificates for the shares of Stock so purchased shall be
delivered to the Warrantholder within a reasonable time, not exceeding 15 days,
after the exercise in full of the rights represented by this Warrant.
If the Warrant is exercised in part only, the Company, upon surrender of
this Warrant for cancellation, shall deliver a new Warrant evidencing the rights
of the Warrantholder to purchase the balance of the shares of Stock which the
Warrantholder is entitled to purchase hereunder.
6. Exchange of Warrants. Subject to the provisions of Section 10 (i) this
Warrant is exchangeable at the option of the Warrantholder at the principal
office of the Company for other Warrants of different denominations entitled the
Warrantholder to purchase the same aggregate number of shares of Stock as are
purchasable hereunder; and (ii) this Warrant may be divided or combined with
other warrants that carry the same rights. In either case, any alterations shall
be made upon presentation, at the principal office of the Company, of the
Warrant(s), together with a written notice signed by the Warrantholder
specifying the names and denominations in which any new Warrants are to be
issued and the payment of any transfer tax due in connection therewith.
7. Anti-Dilution Provisions. The Warrant Price and the number of shares
purchasable upon the exercise of each Warrant are subject to adjustment from
time to time upon the occurrence of any of the events specified in this Section
7. Upon exercise of the Warrant, the Warrantholder shall have all the rights and
preferences of a holder of Stock, but shall have no rights of a holder of Stock
until such Warrant has been exercised as set forth above.
(a) Stock Splits and Dividends. In case the Company shall (i) pay a
dividend in shares of Stock or make a distribution in shares of Stock, (ii)
subdivide its outstanding shares of Stock, (iii) combine its outstanding
shares of Stock into a smaller
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number of shares of Stock, or (iv) issue by reclassification of its shares
of Stock other securities of the Company, the number of shares of Stock
purchasable upon exercise of this Warrant immediately prior thereto shall
be adjusted so that the Warrantholder shall be entitled to receive the kind
and number of shares of Stock or other securities of the Company which
Warrantholder would have owned or would have been entitled to receive after
the occurrence of any of the events described above had such Warrant been
exercised immediately prior to the occurrence of such event or any record
date with respect thereto. An adjustment made pursuant to this Section 7(a)
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for the event.
(b) Distribution of Stock and Equivalents. In case the Company shall
distribute or sell at less than fair market value to all holders of its
shares of Stock evidences of its indebtedness or assets or, except for
transactions covered by 7(a), shares of its stock (excluding distributions
referred to in Section 7(a) above) or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe
for or purchase shares of Stock, then, in each case, the number of shares
of Stock thereafter purchasable upon the exercise of this Warrant shall be
determined by multiplying the number of shares of Stock theretofore
purchasable upon the exercise of this Warrant by a fraction, the numerator
of which shall be the then-current Warrant Price per share of Stock on the
date of such distribution, and the denominator of which shall be such
current Warrant Price per share of Stock, plus the Fair Market Value of any
consideration received by the Company, less the then-current fair value (as
determined by the Board of Directors of the Company) of the portion of the
assets or evidences of indebtedness so distributed or of such rights,
options or warrants, or of such convertible or exchangeable securities
applicable to one share of Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution, retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(c) Reorganization. In case the Company shall effect a consolidation,
merger or a sale of substantially all of the assets (collectively, the
"Transfer") of the Company, then as a condition of such Transfer, lawful
and adequate provision shall be made so that the Warrantholder shall
thereafter have the right to purchase and receive upon the basis and terms
set forth in this Warrant (and in lieu of the shares of Stock immediately
issuable upon exercise of this Warrant), such shares of stock or securities
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Stock the Warrantholder would have received had
such Transfer not taken place. Further, appropriate provision shall be made
with respect to the rights of the Warrantholder so that the provisions of
this Warrant (including, without limitation, provisions for adjustment of
the Warrant Price and number of shares issuable upon exercise) shall be
applicable as nearly as practicable, in relation to any shares of stock or
securities thereafter deliverable upon the exercise hereof.
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<PAGE>
(d) New Securities. In the event that at any time, as a result of an
adjustment made pursuant to this Section 7, the Warrantholder shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter, the number of such other shares so purchasable upon exercise of
this Warrant, and the Warrant Price with respect to such shares, shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Stock
purchasable upon exercise of this Warrant contained in Section 7(a) through
7(f), inclusive, and the balance of the provisions hereof shall apply on
like terms to any such other shares.
(e) Immaterial Adjustments. No adjustment in the number of shares of
Stock purchasable hereunder shall be required unless such adjustment would
require an increase or decrease of at least 1% in the number of shares of
Stock purchasable upon the exercise of this Warrant; provided, however,
that any adjustments that by reasons of this Section 7(e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share.
(f) Adjustment of Warrant Price. Whenever the number of shares of
Stock purchasable upon the exercise of this Warrant is adjusted, as herein
provided, the Warrant Price shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, the numerator of
which shall be the number of shares of Stock purchasable upon the exercise
of this Warrant immediately prior to such adjustment, and the denominator
of which shall be the number of shares of Stock so purchasable immediately
thereafter.
(g) Fractional Shares. No fractional shares of Stock shall be issued
in connection with the exercise of any Warrants, but the Company, in lieu
of such fractional shares, shall make such cash payment therefor on the
basis of the conversion price on the day immediately prior to exercise.
(h) No Change to State Warrant Price, Etc. Irrespective of any
adjustments pursuant to this Section 7 to the Warrant Price or to the
number of shares or other securities or other property obtainable upon
exercise of this Warrant, this Warrant may continue to state the Warrant
Price and the number of shares obtainable upon exercise as the same price
and number of shares stated herein.
8. Covenants. The Company covenants and agrees that:
(a) Reservation of Stock. During the period within which the rights
represented by the Warrant may be exercised, the Company shall, at all
times, reserve and keep available, free from preemptive rights out of the
aggregate of its authorized but unissued Stock, for the purpose of enabling
it to satisfy any obligation to issue shares of Stock upon the exercise of
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<PAGE>
this Warrant, the number of shares of Stock deliverable upon the exercise
of this Warrant. If at any time the number of shares of authorized Stock
shall not be sufficient to effect the exercise of this Warrant, the Company
shall take such corporate action as may be necessary to increase its
authorized but unissued Stock to such number of shares as shall be
sufficient for such purpose. The Company shall have analogous obligations
with respect to any other securities or properties issuable upon exercise
of this Warrant;
(b) No Liens, Etc. All Stock that may be issued upon exercise of the
rights represented by this Warrant shall, upon issuance, be validly issued,
fully paid, nonassessable and free from all taxes, liens and charges with
respect to the issue thereof;
(c) Taxes. All original issue taxes payable with respect to the
issuance of shares upon the exercise of the rights represented by this
Warrant shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the transfer
of any Warrant;
(d) No Diminution of Value. The Company shall not take any action to
terminate this Warrant or to diminish it in value; and
(e) Notice of Events. The Company shall give prior written notice to
the Warrantholder of (i) any tender offer that is being made for the
Company's stock; (ii) any offer to holders of Stock for subscription or
purchase by them of any shares of stock of any class; (iii) any capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, the sale, lease or transfer of all or substantially all of the
property or assets of the Company to another corporation or the voluntary
or involuntary dissolution, liquidation or winding up of the Company and
(iv) any event of the type described in Section 7 hereof (all such events
in clauses (i)-(iv) above are referred to as "Events"). Upon becoming aware
of any pending or proposed Event, the Company shall deliver notice at least
five business days before the day of the occurrence of any Event and shall
describe the Event, the date it is to take place and when the holders of
the Company's stock will be entitled to exchange their shares for
securities or other properties deliverable upon such Event.
9. Voting Rights. Until exercised, this Warrant shall not entitle the
Warrantholder to any voting rights or other rights as a stock holder of the
Company.
10. Transfer Restrictions. A Warrantholder may transfer his beneficial
interest or any portion thereof in the Warrant only to the Warrantholder's
spouse, lineal descendants or ancestors (and their spouses) or the trustee of a
trust for the principal benefit of such persons. Any transfer of ownership or
control of a corporation or other entity which is a Warrantholder shall be
deemed a transfer of this Warrant which must comply with the terms of this
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Section 10. In addition, neither this Warrant nor the Stock issuable upon the
exercise hereof may be sold, transferred, pledged or hypothecated unless the
Company shall have been supplied with evidence reasonably satisfactory to it
that such transfer is not in violation of the Securities Act of 1933, as amended
(the "Act"), and any applicable state laws. The Company may place a legend to
that effect on this Warrant or any replacement Warrant and on each certificate
representing shares issuable upon exercise of this Warrant. Subject to the
satisfaction of the aforesaid condition, this Warrant shall be transferable by
the Warrantholder.
If this Warrant is transferred, in whole or in part, upon surrender of this
Warrant to the Company, the Company shall deliver to each transferee a Warrant
evidencing the rights of such transferee to purchase the number of shares of
Stock that such transferee is entitled to purchase pursuant to such transfer.
11. Stockholder Communications. Until the exercise or expiration of this
Warrant, the Company shall provide each Warrantholder with each and every report
or other communication mailed to the stockholders of the Company.
12. Lost, Stolen Warrants. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond, issue a
new Warrant of like denomination, tenor and date. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
13. Provisions of New Warrants. Any Warrant issued pursuant to the
provisions of Section 14, or upon transfer, exchange, division or partial
exercise of this Warrant or combination thereof with another Warrant or
Warrants, shall set forth each provision set forth in Sections 1 through 26,
inclusive, of this Warrant as each such provision is set forth herein, and shall
be duly executed on behalf of the Company by an executive officer.
14. Cancellation of Warrant. Upon surrender of this Warrant for transfer or
exchange or upon the exercise hereof, this Warrant shall be cancelled by the
Company, shall not be reissued by the Company, and, except as provided in
Section 5 in case of a partial exercise, in Section 7 in case of an exchange, or
in Section 10 in case of a transfer, no Warrant shall be issued in lieu hereof.
Any new Warrant certificate shall be issued promptly but no later than seven
days after receipt of the old Warrant certificate; provided, however, that the
obligation of the Company to transfer the Warrant or issue the shares of Stock
upon the exercise of this Warrant shall be subject to compliance with Section
10.
15. Complete Agreement; Modifications. This Warrant and any documents
referred to herein or executed contemporaneously herewith constitute the
parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
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hereof. This Warrant may not be amended, altered or modified except by a writing
signed by the parties.
16. Cooperation. Each party hereto agrees to execute any and all further
documents and writings and perform such other reasonable actions which may be or
become necessary or expedient to effectuate and carry out this Warrant.
17. Notices. All notices under this Warrant will be in writing and will be
delivered by personal service or telegram, telecopy or certified mail (if such
service is not available, then by first class mail), postage prepaid, to such
address as may be designated from time to time by the relevant party, and which
will initially be as set forth below. Any notice sent by certified mail will be
deemed to have been given three (3) days after the date on which it is mailed.
All other notices will be deemed given when received. No objection may be made
to the manner of delivery of any notice actually received in writing by an
authorized agent of a party. Notices will be addressed as follows or to such
other address as the party to whom the same is directed will have specified in
conformity with the foregoing:
(i) If to the Company:
U.S. Wireless Data, Inc.
4888 Pearl East Circle, Suite 110
Boulder, Colorado 80301
Attn: Maurice R. Caldwell, Jr.
Telephone: (303) 440-5464
Fax: (303) 440-5640
With an additional copy to:
Alan W. Peryam, Esq.
Hopper and Kanouff, P.C.
1610 Wynkoop Street
Suite 200
Denver, Colorado 80202
Telephone: (303) 892-6000
Fax: (303) 892-0457
(ii) If to Warrantholder:
To the Warrantholder and addresses set forth on the
last page hereof.
18. Successor and Assigns. Except as provided herein to the contrary, this
Warrant shall be binding upon and inure to the benefit of the parties, their
respective successors and permitted assigns.
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<PAGE>
19. Governing Law; Jurisdiction. This Warrant has been negotiated and
entered into in the State of Colorado, and all questions with respect to the
Warrant and the rights and liabilities of the parties shall be governed by the
laws of that state, regardless of the choice of law provisions of Colorado or
any other jurisdiction. Any and all disputes between the parties which may arise
pursuant to this Warrant shall be heard and determined before the appropriate
federal or state court located in Denver, Colorado. The parties hereto
acknowledge that such court has jurisdiction to interpret and enforce the
provisions of this Warrant and the parties waive any and all objections that
they may have as to venue in any of the above courts.
20. Construction. No term or provision of this Warrant shall be construed
so as to require the commission of any act contrary to law, and wherever there
is any conflict between any provision of this Warrant and any present or future
statute, law, ordinance, or regulation contrary to which the parties have no
legal right to contract, the latter shall prevail, but in such event the
provision of this Warrant so affected shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law.
21. Waivers Strictly Construed. With regard to any power, remedy or right
provided herein or otherwise available to any party hereunder (i) no waiver or
extension of time shall be effective unless expressly contained in a writing
signed by the waiving party; and (ii) no alteration, modification or impairment
shall be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
22. Severability. The validity, legality or enforceability of the remainder
of this Warrant shall not be affected even if one or more of the provisions of
this Warrant shall be held to be invalid, illegal or unenforceable in any
respect.
23. Headings. The headings in this Warrant are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of
this Warrant or of any particular provision.
24. Counterparts. This Warrant may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one or the same instrument.
25. Attorney's Fees. Should any litigation be commenced (including any
proceedings in a bankruptcy court) between the parties hereto or their
representatives concerning any provision of this Warrant or the rights and
duties of any person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the attorney's fees and court costs incurred by reason of such
litigation.
26. No Brokers Etc. Fees. Each party hereto represents that it is not and
will not be obligated for any finder's or broker's fee or commission in
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connection with this Warrant or any agreement referred to herein or contemplated
hereby. The Company agrees to indemnify and hold harmless the Warrantholder from
any liability for any commission or compensation in the nature of a finder's or
broker's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is alleged to be responsible.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed effective as of May 1, 1993.
U.S. WIRELESS DATA, INC.
By: /s/ Maurice R. Caldwell, Jr.
--------------------------------
(SEAL) Maurice R. Caldwell, Jr., President
ADDRESS OF WARRANTHOLDER:
Kenneth D. DeJohn
------------------------
8052 Fox Ridge Court
------------------------
Boulder, CO 80301
------------------------
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, __________________________________________________
hereby sells, assigns and transfers to ___________________________________the
within Warrant, together with all rights, title and interest therein, and does
hereby irrevocably constitute and appoint ___________________________ attorney
to transfer such Warrant on the register of the within-named Company, with full
power of substitution.
Dated: _________________________ ________________________________________
Signature
Signature Guaranteed:
_____________________________________
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<PAGE>
PURCHASE FORM
-------------
To Be Executed
Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase shares of Stock,
evidenced by the within Warrant, according to the terms and conditions thereof,
and herewith [makes payment of the purchase price in full] [or requests that the
Company exchange the Warrant as provided in Section 5 of the Warrant]. The
undersigned requests that certificate(s) for such shares shall be issued in the
name set forth below.
Dated:______________________
[NAME OF HOLDER]
By: __________________________________
Signature
Name: __________________________________
(Please Print)
Address:________________________________
________________________________________
________________________________________
Employer Identification Number, Social
Security Number or other identifying number:
________________________________________
If said number of shares shall not be all the shares purchasable under
the within Warrant, the Warrantholder hereby requests that a new Warrant for the
unexercised portion shall be registered in the name set forth below and
delivered to the address set forth below:
Name: ___________________________________
(Please Print)
Address: ________________________________
_________________________________________
_________________________________________
Employer Identification Number, Social
Security Number or other identifying
number:_____________________________
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