Registration No. 333-_________
As filed with the Securities and Exchange Commission on September 28, 2000.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
U.S. WIRELESS DATA, INC.
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(Exact name of registrant as specified in its charter)
Colorado 84-1178691
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(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
750 Lexington Avenue, 20th Floor
New York, New York 10022-1200
(212) 750-7766
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(Address, including zip code of Principal Executive Offices)
NON-QUALIFIED STOCK OPTIONS AND WARRANTS HELD BY
CURRENT & FORMER OFFICERS
AND DIRECTORS OF THE COMPANY
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(Full Title of the Plan)
Mr. Dean M. Leavitt, Chief Executive Officer
U.S. Wireless Data, Inc.
750 Lexington Avenue, 20th Floor
New York, New York 10022-1200
(212) 750-7766
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(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Jeffrey M. Brenman, Esq.
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, Colorado 80202
Telephone: (303) 623-2700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering registration
registered registered Share (1) price (2) fee
--------------------------- --------------------- -------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value per share 668,653 shares $.844 $564,343
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Common Stock, no par
value per share 350,000 shares $2.434 $851,900
--------------------------- --------------------- -------------------- ---------------------- ----------------------
Common Stock, no par
value per share 1,000,000 shares $1.500 $1,500,000
--------------------------- --------------------- -------------------- ---------------------- ----------------------
Common Stock, no par
value per share 2,687,500 shares $.875 $2,351,563
--------------------------- --------------------- -------------------- ---------------------- ----------------------
Common Stock, no par
value per share 2,687,500 shares $1.465 $3,937,188
--------------------------- --------------------- -------------------- ---------------------- ----------------------
TOTAL 7,393,653 shares - $9,204,994 $2,430
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</TABLE>
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(1) The maximum offering price per Share is the exercise price of the stock
options and warrants for which the shares are issuable, pursuant to Rule
457(h) under the Securities Act of 1933.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the exercise price of the stock options and warrants for which the
shares are issuable.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed with the Securities and
Exchange Commission (the "Commission"), by U.S. Wireless Data, Inc. (the
"Company"), pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
(a) the Company's latest Annual Report on Form 10-KSB, filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(b) all other reports filed by the Company pursuant to Sections 13(a), 14
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (a) above; and
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement filed with the Commission under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all the securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents (such documents, and the documents
enumerated above, being hereinafter referred to as the "Incorporated
Documents"). Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for all purposes to the extent that a statement
contained in this Registration Statement or in any other subsequently filed
Incorporated Document or in any prospectus or prospectus supplement modifies or
supersedes such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 7-109-102 through 7-109-110 of the Colorado Business Corporation
Act (the "CBCA") permit indemnification of directors, officers, employees,
fiduciaries and agents of corporations under certain conditions and subject to
certain limitations, including for liabilities to which such persons might
become subject under the Securities Act of 1933, as amended (the "Securities
Act").
The Company's Articles of Incorporation do not contain any provisions which
would limit the availability of such indemnification to the fullest extent
available under the above-referenced statute. The Company's amended Bylaws,
which parallel the CBCA sections referred to above, provide that the Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
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whether civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the fact that he is or was a director, officer, employee,
fiduciary or agent of the Company, or is or was serving at the request of the
Company as a director, officer, partner, trustee, employee, fiduciary or agent
of any foreign or domestic profit or nonprofit corporation or of any
partnership, joint venture, trust, profit or nonprofit unincorporated
association, limited liability company, or other enterprise or employee benefit
plan (a "Proper Person"). The Company is required to indemnify Proper Person(s)
against reasonably incurred expenses (including attorneys' fees), judgments,
penalties, fines (including any excise tax assessed with respect to an employee
benefit plan) and amounts paid in settlement reasonably incurred by him in
connection with such action, suit or proceeding if it is determined by a
majority of a quorum of the Board of Directors consisting of Directors who are
not parties to the proceeding, or, if a quorum of such Directors is not
available, a committee of the Board consisting of at least two Directors who are
not parties to the proceeding or, if a proper committee cannot be seated or a
majority of the Board or the committee desire, an independent counsel selected
by a majority of the full Board, or a vote of shareholders, that the proper
Person conducted himself or herself in good faith and that he or she reasonably
believed (i) in the case of conduct in his official capacity with the Company,
that his or her conduct was in the Company's best interests, or (ii) in all
other cases (except criminal cases), that his or her conduct was at least not
opposed to the Company's best interests, or (iii) in the case of any criminal
proceeding, that he or she had no reasonable cause to believe his or her conduct
was unlawful. A Proper Person will be deemed to be acting in his or her official
capacity while acting as a director, officer, employee or agent on behalf of the
Company and not while acting on the Company's behalf for some other entity. A
Proper Person may apply to the court conducting the proceeding or to another
court of competent jurisdiction for an order requiring the Company to indemnify
such person if the court determines that the person is entitled to
indemnification under Colorado law and has met the criteria set forth in the
Company's Bylaws.
No indemnification is available to a person with respect to any claim,
issue or matter in connection with a proceeding by or in the right of the
Company in which the person was adjudged liable to the Company or in connection
with any proceeding charging that the person derived an improper personal
benefit, whether or not involving action in an official capacity, in which he or
she was adjudged liable on the basis that he or she derived an improper personal
benefit. Further, indemnification in connection with a proceeding brought by or
in the right of the Company is limited to reasonable expenses, including
attorneys' fees, incurred in connection with the proceeding.
In addition, the Company has entered into an agreement providing for
indemnification of Mr. Leavitt, its Chief Executive Officer, pursuant to which
Mr. Leavitt is entitled to the broadest possible indemnification rights that are
available to an officer of a corporation under Colorado law.
To the extent that the provisions of a Colorado corporation's Articles of
Incorporation or Bylaws provide for indemnification to a greater extent than is
available under the CBCA, such provisions are void. The Company believes,
however, that the indemnification provisions contained in its Articles of
Incorporation and Bylaws, and the indemnification agreement it has entered into
with its Chief Executive Officer, are no more liberal than those contained in
the CBCA.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
3.1 Articles of Incorporation, as amended - incorporated by
reference from Exhibit 3.1 filed with the Company's Quarterly
Report on Form 10-QSB for the fiscal quarter ended December
31, 1997, filed on EDGAR on February 23, 1998.
3.2 Articles of Amendment to the Articles of Incorporation
(including Designation of Series B Cumulative Convertible
Redeemable Preferred Stock) filed by the Company with the
Colorado Secretary of State on April 29, 1999 - incorporated
by reference from Exhibit 3.1 filed with the Company's Current
Report on Form 8-K Reporting an Event of May 6, 1999 (earliest
event reported), filed on EDGAR on May 11, 1999'
3.3 Articles of Amendment to Articles of Incorporation (including
Removal from Designation of Series A Preferred Stock) filed by
the Company with the Colorado Secretary of State on March 9,
2000 (including Certificate of Correction filed March 16,
2000) - incorporated by reference from Exhibit 3.3 to the
Company's Annual Report on Form 10-KSB for the Fiscal Year
ended June 30, 2000, filed on EDGAR on September 28, 2000.
3.4 Articles of Amendment to Articles of Incorporation (including
Designation of Series C Convertible Redeemable Preferred
Stock) filed by the Company with the Colorado Secretary of
State on March 10, 2000 (including Certificate of Correction
filed March 16, 2000) - incorporated by reference from Exhibit
3. filed with the Company's Current Report on Form 8-K/A
Reporting an Event of March 28, 2000 (earliest event
reported), filed on EDGAR on April 18, 2000
3.5 Articles of Amendment to Articles of Incorporation filed with
the Colorado Secretary of State on September 22, 2000
(including removal from Designation of Series B Preferred
Stock) - incorporated by reference from Exhibit 3.5 to the
Company's Annual Report on Form 10-KSB for the Fiscal Year
ended June 30, 2000, filed on EDGAR on September 28, 2000.
3.5 Amended Bylaws of the Company - incorporated by reference from
Exhibit 3.3 to the Company's Annual Report on Form 10-KSB for
the Fiscal Year ended June 30, 1995, filed on October 13,
1996.
4.1 Non-Qualified Stock Option issued to Rod L. Stambaugh as of
May 13, 1999 - incorporated by reference from Exhibit 4.37 to
the Company's Annual report on Form 10-KSB for the Fiscal Year
Ended June 30, 1999 (as filed on EDGAR on October 14, 1999 -
Accession Number 0001021890-99-000197)).
4.2 Non-Qualified Stock Option issued to Robert E. Robichaud as of
May 13, 1999 (Incorporated by reference from Exhibit 4.38 to
the Company's Annual Report on Form 10-KSB for the Fiscal Year
Ended June 30, 1999 (as filed on EDGAR on October 14, 1999 -
Accession Number 0001021890-99-000197)).
4.4 Non-Qualified Stock Option issued to Charles I. Leone as of
February 12, 2000, incorporated by reference from Exhibit 4.5
to the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 2000 (as filed on EDGAR on
May 15, 2000 - Accession Number 0001021890-00-00202).
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4.6 Non-Qualified Stock Option issued to Barry A. Kaplan as of
March 29, 2000 incorporated by reference from Exhibit 4.3 to
the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 2000 (as filed on EDGAR on
May 15, 2000 - Accession Number 0001021890-00-00202).
4.7 Non-Qualified Stock Option issued to Edwin M. Cooperman as of
March 29, 2000 incorporated by reference from Exhibit 4.1 to
the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 2000 (as filed on EDGAR on
May 15, 2000 - Accession Number 0001021890-00-00202).
4.8 Non-Qualified Stock Option issued to Michael S. Falk as of
March 29, 2000 incorporated by reference from Exhibit 4.2 to
the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 2000 (as filed on EDGAR on
May 15, 2000 - Accession Number 0001021890-00-00202).
4.9 Non-Qualified Stock Option issued to Amy L. Newmark as of
March 29, 2000 incorporated by reference from Exhibit 4.4 to
the Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 2000 (as filed on EDGAR on
May 15, 2000 - Accession Number 0001021890-00-00202).
4.10 Warrants with an exercise price of $0.875 per share, issued to
Dean M. Leavitt as of May 3, 1999 incorporated by reference
from Exhibit 4.6 to the Company's Quarterly Report on Form
10-QSB for the quarterly period ended March 31, 2000 (as filed
on EDGAR on May 15, 2000 - Accession Number
0001021890-00-00202).
4.11 Warrants with an exercise price of $1.465 per share, issued to
Dean M. Leavitt as of May 3, 1999 incorporated by reference
from Exhibit 4.6 to the Company's Quarterly Report on Form
10-QSB for the quarterly period ended March 31, 2000 (as filed
on EDGAR on May 15, 2000 - Accession Number
0001021890-00-00202).
5.1 Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C. regarding
the legality of the Common Stock being registered*
23.1 Consent of M.R. Weiser & Co. LLP*
23.2 Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included in
the opinion filed as Exhibit 5.1)
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* Filed herewith
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information.
b. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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c. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
d. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
e. To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and, where interim financial information required to be presented
by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
f. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on September 28, 2000.
U.S. WIRELESS DATA, INC.
By: /s/ Dean M. Leavitt
-----------------------------
Dean M. Leavitt
Chief Executive Officer
In accordance with the requirements of the Securities Exchange Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ Dean M. Leavitt
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Dean M. Leavitt Chief Executive Officer and Director September 28, 2000
/s/ Charles I. Leone
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Charles I. Leone Chief Financial Officer September 28, 2000
/s/ Kelly McLaughlin
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Kelly McLaughlin Controller September 28, 2000
(Principal Accounting Officer)
/s/ Edwin M. Cooperman
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Edwin M. Cooperman Director September 26, 2000
/s/ Michael S. Falk
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Michael S. Falk Director September 28, 2000
/s/ Barry A. Kaplan
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Barry A. Kaplan Director September 26, 2000
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Amy L. Newmark Director
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Alvin C. Rice Director
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Chester N. Winter Director
</TABLE>
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