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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)*
U.S. WIRELESS DATA, INC.
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(Name of Issuer)
No Par Value Class A Common Stock
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(Title of Class of Securities)
912 899 101
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(CUSIP Number)
John M. Liviakis, 2420 "K" St., #220, Sacramento, CA 95816, (916) 448-6084
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 16, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of this schedule, including all exhibits. See Section 240.13d-7 for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED
IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY
VALID OMB CONTROL NUMBER.
SEC 1746 (2-98)
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CUSIP No. 912 899 101
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Liviakis Financial Communications, Inc. 68-0311399
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
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3. SEC Use Only
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4. Source of Funds (See Instructions)
00
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5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
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6. Citizenship or Place of Organization
California
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7. Sole Voting Power
442,500
Number of ----------------------------------------------------------
Shares 8. Shared Voting Power
Beneficially -0-
Owned by ----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 442,500
Person ----------------------------------------------------------
With 10. Shared Dispositive Power
-0-
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
442,500
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
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13. Percent of Class Represented by Amount in Row (11)
3.5%
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14. Type of Reporting Person (See Instructions)
CO
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2
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CUSIP No. 912 899 101
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
John M. Liviakis
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
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3. SEC Use Only
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4. Source of Funds (See Instructions)
PF, 00
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5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
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6. Citizenship or Place of Organization
United States
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7. Sole Voting Power
3,825,000
Number of ----------------------------------------------------------
Shares 8. Shared Voting Power
Beneficially 442,500
Owned by ----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 3,825,000
Person ----------------------------------------------------------
With 10. Shared Dispositive Power
442,500
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,267,500
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
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13. Percent of Class Represented by Amount in Row (11)
31.0%
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14. Type of Reporting Person (See Instructions)
IN
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3
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CUSIP No. 912 899 101
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Renee A. Liviakis
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
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3. SEC Use Only
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4. Source of Funds (See Instructions)
00
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5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
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6. Citizenship or Place of Organization
United States
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7. Sole Voting Power
-0-
Number of ----------------------------------------------------------
Shares 8. Shared Voting Power
Beneficially 442,500
Owned by ----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting -0-
Person ----------------------------------------------------------
With 10. Shared Dispositive Power
442,500
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
442,500
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
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13. Percent of Class Represented by Amount in Row (11)
3.5%
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14. Type of Reporting Person (See Instructions)
IN
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4
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CUSIP No. 912 899 101
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Robert B. Prag
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
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3. SEC Use Only
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4. Source of Funds (See Instructions)
PF, 00
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5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
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6. Citizenship or Place of Organization
United States
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7. Sole Voting Power
1,422,500
Number of ----------------------------------------------------------
Shares 8. Shared Voting Power
Beneficially 422,500
Owned by ----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 1,442,500
Person ----------------------------------------------------------
With 10. Shared Dispositive Power
422,500
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,865,000
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
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13. Percent of Class Represented by Amount in Row (11)
14.3%
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14. Type of Reporting Person (See Instructions)
IN
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5
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3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to a Consulting Agreement dated as of July 25, 1997 by and
between the Corporation and LFC (the "Consulting Agreement"), the Corporation
agreed to issue an aggregate of 300,000 shares of the Corporation's Common Stock
in specified installments. Seventy-five percent of each increment of shares so
issued has been or is to be issued to LFC, and twenty-five percent of each such
increment has been or is to be issued to RBP. Of such shares, 240,000 have been
issued, 45,000 should have been but have not been issued prior to the date of
this Amendment No. 3, and the balance of 15,000 shares is to be issued on the
first day of August 1998. Under the Consulting Agreement, LFC undertakes to
perform certain investor communications, financial and investor public
relations, corporate finance and related services for the Corporation. A copy of
the Consulting Agreement is filed as Exhibit 1 to Schedule 13D.
In addition, JML and RBP have each purchased shares of Common Stock and
warrants to purchase shares of Common Stock from the Corporation in private
transactions. Pursuant to a Subscription Agreement between the Corporation and
JML entered into August 6, 1997 (the "JML Subscription Agreement"), on August 6,
1997 JML purchased, for an aggregate purchase price of $375,000, 2,625,000
shares of Common Stock and warrants first exercisable on January 15, 1998 and
expiring August 1, 2002 to purchase up to 1,200,000 additional shares of Common
Stock at an exercise price of One Cent ($0.01) per share ("Warrants"). On May
12, 1998, JML exercised all 1,200,000 Warrants and thereby purchased 1,200,000
shares of Common Stock. Pursuant to a Subscription Agreement between the
Corporation and RBP entered into August 6, 1997 (the "RBP Subscription
Agreement" and collectively with the JML Subscription Agreement, the
"Subscription Agreements"), on August 6, 1997 RBP purchased, for an aggregate
purchase price of $125,000, 875,000 shares of Common Stock and Warrants to
purchase up to 400,000 additional shares of Common Stock. Copies of the JML
Subscription Agreement, the RBP Subscription Agreement, and the certificate
representing Warrants are filed as Exhibits 2, 3 and 4 to the Schedule 13D,
respectively.
By letter dated October 20, 1997 from JML and RBP to the Corporation
(the "October 20 Letter"), JML and RBP agreed to certain modifications in the
terms of the Warrants and the Subscription Agreements, which resulted in a
postponement of the date on which the Warrants were first exercisable to
February 6, 1998. A copy of the October 20 Letter is filed as Exhibit 6 to
the Schedule 13D.
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On July 16, 1998, the Corporation and LFC completed the execution and
delivery of a second Consulting Agreement dated and effective as of June 30,
1998 (the "Extended Consulting Agreement"). Pursuant to the Extended Consulting
Agreement, the Corporation has agreed to issue an aggregate of 290,000 shares of
the Corporation's Common Stock. Seventy-five percent of such shares are to be
issued to LFC, and twenty-five percent of such shares are to be issued to RBP,
with issuance to occur immediately following execution of the Extended
Consulting Agreement. Under the Extended Consulting Agreement, LFC undertakes to
continue performance of certain investor communications, financial and investor
public relations, and related services for the Corporation through March 15,
1999. A copy of the Extended Consulting Agreement is filed with this Amendment
No. 3 as Exhibit 7 to Schedule 13D.
This Amendment No. 3 to Schedule 13D is being filed to report 3,825,000
shares of the Corporation's Common Stock owned by JML; 935,000 shares of the
Corporation's Common Stock owned by RBP, 400,000 shares of Common Stock which
RBP has the right to acquire through the exercise of Warrants, 11,250 shares and
72,500 shares of Common Stock which RBP is entitled to receive pursuant to the
Consulting Agreement and Extended Consulting Agreement, respectively, and 3,750
shares of Common Stock which RBP will become entitled to receive pursuant to the
Consulting Agreement within sixty days of the date hereof; and 180,000 shares of
the Corporation's Common Stock owned by LFC, 33,750 shares and 217,500 shares of
Common Stock which LFC is entitled to receive pursuant to the Consulting
Agreement and Extended Consulting Agreement, respectively, and 11,250 shares of
Common Stock which LFC will become entitled to receive pursuant to the
Consulting Agreement within sixty days of the date hereof
The shares of Common Stock which LFC and RBP have received and have or
will have the right to receive pursuant to the Consulting Agreement and the
Extended Consulting Agreement have been or will be issued by the Corporation to
LFC and RBP in consideration of services rendered and to be rendered by LFC.
The 2,625,000 shares of Common Stock owned by JML were acquired,
together with 1,200,000 Warrants, by JML from the Corporation at an aggregate
cost of Three Hundred Seventy-Five Thousand Dollars ($375,000). The 1,200,000
Warrants were exercised for an aggregate exercise price of Twelve Thousand
Dollars ($12,000) to purchase 1,200,000 shares of Common Stock. The source of
funds used in purchasing such securities was JML's personal funds.
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875,000 shares of Common Stock owned by RBP were acquired, together with
400,000 Warrants, by RBP from the Corporation at an aggregate cost of One
Hundred Twenty-Five Thousand Dollars ($125,000). The source of funds used in
purchasing such securities was RBP's personal funds.
RBP believes that the source of funds to be utilized by him to exercise
such Warrants as he elects to exercise will be his personal funds.
5. INTEREST IN SECURITIES OF THE ISSUER.
JML has the sole power to direct the vote or disposition of the
3,825,000 shares of Common Stock of the Corporation owned by JML. RBP has the
sole power to direct the vote or disposition of the 935,000 shares of Common
Stock of the Corporation owned by RBP and expects to have the sole power to
direct the vote or disposition of such of the 487,500 additional shares of
Common Stock as he acquires pursuant to the Consulting Agreement or Extended
Consulting Agreement or through the exercise of the 400,000 Warrants owned by
RBP. LFC has the sole power to direct the vote or disposition of the 180,000
shares of Common Stock of the Corporation owned by LFC and expects to have the
sole power to direct the vote or disposition of such of the 262,500 additional
shares of Common Stock as it acquires pursuant to the Consulting Agreement or
Extended Consulting Agreement. LFC's power to direct the vote or disposition of
shares will be exercised through its officers and directors.
LFC and RBP disclaim any beneficial interest in any shares of Common
Stock owned by JML or which JML has the right to acquire. LFC, JML and RAL
disclaim any beneficial interest in any shares of Common Stock owned by RBP or
which RBP has the right to acquire. RBP disclaims any beneficial interest in any
shares of Common Stock owned by LFC, except such beneficial interest as may
attach to his serving as a director and officer of LFC.
The 3,825,000 shares of Common Stock that JML owns, and as to which JML
has the sole power to direct the vote or disposition, represent approximately
28.3% of that class of securities. The 1,422,500 shares of Common Stock that RBP
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owns and has the right to acquire within sixty days of the date hereof, and as
to which RBP has or expects to have the sole power to direct the vote or
disposition, represent approximately 11.1% of that class of securities. The
442,500 shares of Common Stock that LFC owns or has the right to acquire within
sixty days of the date hereof, and as to which LFC has or expects to have the
sole power to direct the vote or disposition, represent approximately 3.5% of
that class of securities. The 5,690,000 shares of Common Stock which JML, RBP
and LFC in the aggregate own or have the right to acquire within sixty days of
the date hereof, and as to which one of JML, RBP or LFC has or expects to have
the sole power to direct the vote or disposition, represent approximately 39.9%
of that class of securities. The 1,865,000 shares of Common Stock which RBP and
LFC in the aggregate own or have the right to acquire within sixty days of the
date hereof, and as to which RBP or LFC has or expects to have the sole power to
direct the vote or disposition, represent approximately 14.3% of that class of
securities. The 4,267,500 shares of Common Stock which JML and LFC in the
aggregate own or have the right to acquire within sixty days of the date hereof,
and as to which JML or LFC has or expects to have the sole power to direct the
vote or disposition, represent approximately 31.0% of that class of securities.
In each case, the calculation of the percentage of the class of Common Stock is
based on the 12,323,665 shares of Common Stock which the Corporation advised LFC
were outstanding as of June 30, 1998.
During the past sixty days, LFC, JML, RAL and RBP have not engaged in
any transactions in Common Stock, other than pursuant to the Extended Consulting
Agreement as described herein.
7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Consulting Agreement between the Corporation and LFC dated
July 25, 1997.
Exhibit 2 - Subscription Agreement between the Corporation and JML
entered into August 6, 1997.
Exhibit 3 - Subscription Agreement between the Corporation and RBP
entered into August 6, 1997.
Exhibit 4 - Certificate representing Warrants to purchase shares of the
Corporation's Common Stock.
Exhibit 5 - Joint Filing Agreement of LFC, JML, RAL and RBP pursuant to
Rule 13d-1(f).
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Exhibit 6 - Letter dated October 20, 1997 from JML and RBP to the
Corporation modifying certain terms of the Subscription Agreements (Exhibits 2
and 3) and Warrants (Exhibit 4).
Exhibit 7 - Consulting Agreement between the Corporation and LFC dated
and effective as of June 30, 1998.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 27, 1998
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By:/s/John M. Liviakis
---------------------------------
John M. Liviakis, President
/s/John M. Liviakis
------------------------------------
John M. Liviakis
/s/Renee A. Liviakis
------------------------------------
Renee A. Liviakis
/s/Robert B. Prag
------------------------------------
Robert B. Prag
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EXHIBIT "7"
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), dated and effective as of June 30,
1998 is entered into by and between U.S. WIRELESS DATA, INC., a Colorado
corporation (herein referred to as the "Company") and LIVIAKIS FINANCIAL
COMMUNICATIONS, INC., a California corporation (herein referred to as the
"Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded through the OTC Bulletin Board; and
WHEREAS, Consultant has experience in the area of investor
communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning and to represent the company in
investors' communications and public relations with existing shareholders,
brokers, dealers and other investment professionals as to the Company's current
and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to act
in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing August 1, 1998 and ending on March
15, 1999.
2. Duties of Consultant. The Consultant agrees that it will generally provide
the following specified consulting services through it's officers and employees
during the term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
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(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness during the
term of this Agreement of the Company's plans, strategy and personnel, as they
may evolve during such period, and advise and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and advise the Company with respect to its (i) stockholder and
investor relations, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to investor/stockholder
relations and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred to the
Consultant by the Company); preparing press releases for the Company with the
Company's involvement and approval or reviewing press releases, reports and
other communications with or to shareholders, the investment community and the
general public; advising with respect to the timing, form, distribution and
other matters related to such releases, reports and communications; and
consulting with respect to corporate symbols, logos, names, the presentation of
such symbols, logos and names, and other matters relating to corporate image;
(f) Upon the Company's approval, disseminate information regarding the
Company to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of the Company's plans, goals and activities, and assist the Company
in preparing for press conferences and other forums involving the media,
investment professionals and the general investment public;
(h) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the purpose of
advising the Company of the investment community implications thereof; and
(i) Otherwise perform as the Company's financial relations and public
relations consultant.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and investor public relations and communications activities, so
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long as such activities are in compliance with applicable securities laws and
regulations. Consultant shall diligently and thoroughly provide the consulting
services required hereunder. Although no specific hours-per-day requirement will
be required, Consultant and the Company agree that Consultant will perform the
duties set forth herein above in a diligent and professional manner. It is
explicitly understood that Consultant's performance of its duties hereunder will
in no way be measured by the price of the Company's common stock, nor the
trading volume of the Company's common stock. It is also understood that the
Company is entering into this Agreement with Liviakis Financial Communications,
Inc. ("LFC"), a corporation and not any individual member of LFC, and with such,
Consultant will not be deemed to have breached this Agreement if any member,
officer or director of LFC leaves the firm or dies or becomes physically unable
to perform any meaningful activities during the term of the Agreement, provided
the Consultant otherwise performs its obligations under this Agreement.
4. Remuneration. As full and complete compensation for services described
in this Agreement, the Company shall compensate Consultant as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the Consultant a
"Commencement Bonus" payable in the form of 290,000 shares of the Company's
Common Stock ("Common Stock"). This Commencement Bonus shall be issued to
the Consultant immediately following execution of this Agreement and shall,
when issued and delivered to Consultant, be fully paid and non-assessable.
The Company understands and agrees that Consultant has foregone significant
opportunities to accept this engagement and that the Company derives
substantial benefit from the execution of this Agreement and the ability to
announce its relationship with Consultants. The 290,000 shares of Common
Stock issued as a Commencement Bonus, therefore, constitute payment for
Consultant's agreement to represent the Company and are a nonrefundable,
non-apportionable, and non-ratable retainer; such shares of Common Stock
are not a prepayment for future services. If the Company decides to
terminate this Agreement prior to March 15, 1999 for any reason whatsoever,
it is agreed and understood that Consultant will not be requested or
demanded by the Company to return any of the shares of Common Stock paid to
it hereunder. 217,500 shares of Common Stock issued pursuant to this
Agreement shall be issued in the name of Liviakis Financial
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Communications, Inc. and 72,500 shares of Common Stock issued pursuant to
this Agreement shall be issued in the name of Robert B. Prag ("Prag"). The
Common Stock issued to the Consultant and Prag hereunder shall have
"piggyback" registration rights and will be included in the next
appropriate registration done by the Company. All registration costs shall
be borne solely by the Company. In the event the Company for any reason,
including without limitation the unavailability of authorized but unissued
shares, does not deliver certificates representing shares of the Company's
Common Stock as and when required hereunder, the Company shall, unless the
time for performance is extended in writing by the Consultant, pay to
Consultant and Prag in lieu of delivery of the shares of Common Stock with
respect to which the Company is in default, an amount per undelivered share
equal to the average closing asked price per share of Common Stock during
the five trading days ending with the day on which the Company was required
hereunder to deliver but failed to deliver such shares of Common Stock. The
Common Stock to be issued to the Consultant & Prag hereunder is also
covered by the registration covenants in Section 5 of the Subscription
Agreement between the Company and Prag and John M. Liviakis ("JML"),
respectively, dated August 6, 1997. For purposes of said Section 5 of the
Subscription Agreement between the Company and JML, any shares of common
stock held by the Consultant shall be considered to be shares of Common
Stock held by JML and the Consultant shall have the same rights as JML
under said Section 5.
4.2 Consultant and Prag (hereinafter referred to as "Consultants") acknowledge
that the shares of Common Stock to be issued pursuant to this Agreement
(collectively, the "Shares") have not been registered under the Securities
Act of 1933, and accordingly are "restricted securities" within the meaning
of Rule 144 of the Act. As such, the Shares may not be resold or
transferred unless the Company has received an opinion of counsel
reasonably satisfactory to the Company that such resale or transfer is
exempt from the registration requirements of that Act.
4.3 In connection with the acquisition of Shares hereunder, the Consultants
represent and warrants to the Company as follows:
(a) Consultants acknowledge that the Consultants have been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other
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representatives of the Company concerning an investment in the Shares, and
any additional information which the Consultants have requested.
(b) Consultants' investment in restricted securities is reasonable in
relation to the Consultants' net worth, which is in excess of ten (10)
times the Consultants' cost basis in the Shares. Consultants have had
experience in investments in restricted and publicly traded securities, and
Consultants have had experience in investments in speculative securities
and other investments which involve the risk of loss of investment.
Consultants acknowledge that an investment in the Shares is speculative and
involves the risk of loss. Consultants have the requisite knowledge to
assess the relative merits and risks of this investment without the
necessity of relying upon other advisors, and Consultants can afford the
risk of loss of his entire investment in the Shares. Consultants are (i)
accredited investor, as that term is defined in Regulation D promulgated
under the Securities Act of 1933, and (ii) a purchaser described in Section
25102 (f) (2) of the California Corporate Securities Law of 1968, as
amended.
(c) Consultants are acquiring the Shares for the Consultants' own account
for long-term investment and not with a view toward resale or distribution
thereof except in accordance with applicable securities laws.
5. Financing "Finder's Fee". It is understood that in the event Consultant
introduces Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom Company,
or its nominees, ultimately finances or causes the completion of such financing,
Company agrees to compensate Consultant for such services with a "finder's fee"
in the amount of 2.5% of total gross funding provided by such lender or equity
purchaser, such fee to be payable in cash. This will be in addition to any fees
payable by Company to any other intermediary, if any, which shall be per
separate agreements negotiated between Company and such other intermediary.
5.1 It is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender or
equity purchaser introduced to it by Consultant under this Agreement,
prior to Company receiving funds.
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5.2 Company agrees that said compensation to Consultant shall be paid in
full at the time said financing is closed. Moreover, said
compensation, will be a condition precedent to the closing of such
funding or financing and Company shall execute any and all documents
necessary to effect said compensation.
5.3 As further consideration to Consultant, Company, or its nominees,
agrees to pay with respect to any financing provided directly or
indirectly to the Company by any lender or equity purchaser covered by
this Section 5 during the period of five years from the date of this
Agreement, a fee to Consultant equal to that outlined in Section "5"
herein.
5.4 Consultant will notify Company of introductions it makes for potential
sources of financing in a timely manner (within approximately 3 days
of introduction) via facsimile memo. If Company has a preexisting
relationship with such nominee and believes such party should be
excluded from this Agreement, then Company will notify Consultant
immediately of such circumstances via facsimile memo.
6. Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company, luncheons or dinners to large groups of investment
professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, print advertisements in publications,
etc.) approved by the Company prior to its incurring an obligation for
reimbursement.
7. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by the
Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees with
respect thereto resulting from Consultant's communication or dissemination of
any said information, documents or materials not designated by the Company to
the Consultant as "confidential" or "Company private", excluding any such claims
or litigation resulting from Consultant's communication or
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dissemination of information not provided or authorized by the Company. To the
extent feasible, the Company agrees to make Consultant an additional insured on
any and all commercial liability and directors and officers liability insurance
policies and to provide Consultant with current Certificates of Insurance
reflecting the same.
8. Representations. Consultant represents that it is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of his knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of his
knowledge, Consultant and its officers and directors are not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws. Consultant further acknowledges that it is not a securities
Broker Dealer or a registered investment advisor. Company acknowledges that, to
the best of its knowledge, that it has not violated any rule or provision of any
regulatory agency having jurisdiction over the Company. Company acknowledges
that, to the best of its knowledge, Company is not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws.
9. Legal Representation. The Company acknowledges that it has been represented
by independent legal counsel in the preparation of this Agreement. Consultant
represents that they have consulted with independent legal counsel and/or tax,
financial and business advisors, to the extent the Consultant deemed necessary.
10. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant further
acknowledges the consideration provided herein above is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or
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duties regarding such matters. Neither the Company or the Consultant possess the
authority to bind each other in any agreements without the express written
consent of the entity to be bound.
11. Attorney's Fee. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
12. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. Notices. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company U.S. Wireless Data, Inc.
Mr. Rod Stambaugh, Chairman
2200 Powell Street, Suite 450
Emeryville, CA 94608
To the Consultant: Liviakis Financial Communications, Inc.
John M. Liviakis, President
2420 "K" Street, Suite 220
Sacramento, CA 95816
It is understood that either party may change the address to which notices
for it shall be addressed by providing notice of such change to the other party
in the manner set forth in this paragraph.
14. Choice of Law, Jurisdiction and Venue. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of California.
The parties agree that
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Sacramento County, CA. will be the venue of any dispute and will have
jurisdiction over all parties.
15. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding Arbitration in
California, in accordance with the applicable rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction
thereof. The provisions of Title 9 of Part 3 of the California Code of Civil
Procedure, including section 1283.05, and successor statutes, permitting
expanded discovery proceedings shall be applicable to all disputes that are
arbitrated under this paragraph.
16. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
AGREED TO:
"Company" U.S. WIRELESS DATA, INC.
Date: 6/30/98 By: /s/Rod Stambaugh
- ------------- ------------------------------------
Rod Stambaugh, Chairman
& Its duly Authorized Officer
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 6/29/98 By:/s/John M. Liviakis /s/Robert B. Prag
- ------------- ------------------- -----------------
John M. Liviakis Robert B. Prag
President Sr. Vice
President
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