EXHIBIT 4.21
THIS WARRANT AND THE STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE ACT AND APPLICABLE STATE SECURITIES
LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, UNLESS, IN THE OPINION OF
COUNSEL FOR THE COMPANY OR COUNSEL FOR THE REGISTERED HOLDER (WHICH SHALL BE IN
FORM AND FROM SUCH COUNSEL AS SHALL BE REASONABLY SATISFACTORY TO THE COMPANY),
SUCH REGISTRATION IS NOT THEN REQUIRED.
U.S. Wireless Data, Inc.
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COMMON STOCK PURCHASE WARRANT
Warrant No. ___________ Right to Purchase _____________
shares of No Par Value Common
Stock (subject to adjustment)
Date of Issuance: As of _______________, 199__
Expiration Date: On or before _____________, 200__
THIS CERTIFIES THAT, for value received,
_____________________________________________ ("Purchaser"),
or permitted transferees in accordance with Section 12 hereof, or its registered
assigns (the "Registered Holder" or "Registered Holders"), is entitled to
purchase from U.S. Wireless Data, Inc., a Colorado corporation (the "Company"),
the number of shares of common stock, no par value per share (the "Common
Stock"), of the Company set forth above, subject to adjustment pursuant to
Section 4 hereof, at the price of ______________________ ($_________) per share
of Common Stock, subject to adjustment pursuant to Section 3 hereof (the
"Exercise Price"). These purchase rights are granted pursuant to that certain
Agreement dated as of _______________________, 1998, between the Company and
Purchaser (the "Purchase Agreement"), subject to the following provisions:
SECTION 1
CERTAIN DEFINITIONS
As used in this Warrant, the following terms have the meanings set
forth below:
"Agreement" is the Series A Preferred Stock Modification Agreement
dated as of September 17, 1998, between the Company and Purchaser.
"Agreement Date" means the date of the Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, no par value per share
"Common Stock Deemed Outstanding" means the number of shares of Common
Stock actually outstanding at such time, plus the number of shares of Common
Stock deemed to be outstanding at any given time pursuant to Section 3 of this
Warrant.
"Convertible Securities" or "Convertible Security" means any rights or
options which are exercisable to purchase, or convertible into, Common Stock or
any stock or other securities convertible into or exchangeable for Common Stock.
"Date of Issuance" is the date set forth on the front page of this
Warrant, and the terms "date hereof," "date of this Warrant," and similar
expressions shall be deemed to refer to the Date of Issuance.
"Exercise Period" means the period of time commencing at 12:01 A.M.,
Eastern Time, on the Date of Issuance and ending at 5:00 P.M., Eastern Time, on
the Expiration Date, as set forth on the front page of this Warrant.
"Fair Value" means a value determined in good faith by the Board of
Directors of the Company. Anytime a Fair Value is required to be determined for
purposes of this Warrant, a certificate executed by an appropriate officer of
the Company shall be prepared and delivered to the Registered Holder to reflect
the action taken by the Board of Directors to determine such Fair Value.
"Market Price" means, as to any security immediately transferable
without restriction, the average of the closing prices of such security's sales
on the principal domestic securities exchange on which such security may at the
time be listed, or, if there have been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all such exchanges at
the end of such day, or, if on any day such security is not so listed, the
average of the bid and asked prices quoted on Nasdaq as of the close of trading
in New York City on such day, in each such case averaged over a period of five
(5) consecutive days
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consisting of the business day immediately preceding the day as of which Market
Price is being determined and the four (4) consecutive business days prior to
such day; provided that if such security is listed on any principal domestic
securities exchange or quoted on Nasdaq, the terms "business day" and "business
days" means a day or days, as applicable, on which such exchange or Nasdaq is
open for trading or quotation, as the case may be, notwithstanding whether any
quotation is available on any particular business day and, if not, then the
Market Price shall be determined based upon those remaining days during the
aforesaid 5-day period for which quotations are available. If any security is
not immediately transferable without restriction, or is not listed on any
principal domestic securities exchange or quoted on Nasdaq, the Market Price
shall be the Fair Value thereof.
"Nasdaq" means the National Market System or the Small Cap Market of
the Nasdaq Stock Market, or the OTC Electronic Bulletin Board, or any successor
interdealer quotation systems having substantially the same listing criteria
that may in the future be used generally by members of the National Association
of Securities Dealers, Inc. for over-the-counter transactions in securities.
"Person" means an individual, a partnership, a corporation, a trust, a
joint venture, an unincorporated organization, a government and any department
and agency thereof.
"Series A Preferred Stock" means that Series A Cumulative Convertible
Redeemable Preferred Stock of the Company which is outstanding on the Date of
Issuance.
"Six Percent Convertible Debentures" means the Company's 6% Convertible
Subordinated Debentures Due July 21, 2000, originally issued effective as of
July 22, 1998.
"Stock" means shares of the Company's Common Stock authorized but
unissued as of the Date of Issuance, issued or issuable upon exercise of this
Warrant; provided that if there is a change such that the securities issued or
issuable upon exercise of this Warrant are issued by an entity other than the
Company, or there is a change in the class of securities so issuable, then the
term "Stock" shall mean shares of any security issued or issuable upon exercise
of the Warrant if such security is issuable in shares, or shall mean units of
any such security issued or issuable, if such security is not issuable in
shares.
"Warrant" and "Warrants" means this Warrant and all warrants issued or
issuable in exchange or substitution for this Warrant pursuant to the terms
hereof.
SECTION 2
EXERCISE OF WARRANT
2.1 Exercise Period. The Registered Holder may exercise this Warrant, in
whole or in part, at any time and from time to time, during the Exercise Period,
and the
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exercise hereof may be for such whole number of Stock as the Registered Holder
may, in its sole discretion, decide.
2.2 Exercise Procedure.
(a) This Warrant shall be deemed to have been exercised at such time
as the Company has received all of the following items (the "Exercise
Date"):
(i) A completed Exercise Agreement, as described below, executed
by the Person exercising all or part of the purchase rights
represented by this Warrant (the "Purchaser");
(ii) This Warrant (subject to delivery by the Company of a new
Warrant with respect to any unexercised portion, as provided in
Paragraph (b) of Subsection 2.2);
(iii) If this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments substantially in the form set
forth as Exhibit II hereto, evidencing the assignment of this Warrant
to the Purchaser; and
(iv) If the Purchaser has elected not to make a Cashless Exercise
as provided in Paragraph (b) of this Subsection 2.2, a certified or
bank check or other certified funds payable to the Company in an
amount equal to the product of the Exercise Price multiplied by the
number of Stock being purchased upon such exercise.
(b) Certificates for Stock purchased upon exercise of this Warrant
shall be delivered by the Company to the Purchaser within five (5) business
days after the Exercise Date. However, if the Purchaser has elected to make
a "Cashless Exercise" as herein described, the Company shall deliver
certificates for the number of shares that results from subtracting, from
the total number of Stock otherwise deliverable upon exercise, the number
of Stock whose value, calculated using the Market Price, is equal to the
value of the payment otherwise required for exercise by Paragraph (a)(iv)
of this Subsection 2.2. Unless this Warrant has expired or all of the
purchase rights represented hereby have been exercised, the Company shall,
in addition to certificates for Stock, prepare upon exercise of this
Warrant, a new Warrant representing the rights formerly represented by this
Warrant that have not expired or been exercised. The Company shall, within
five (5) business days after the Exercise Date, deliver such new Warrant to
the Persons designated for delivery in the Exercise Agreement.
(c) Except as otherwise required or permitted by the exercise of this
Warrant under the provisions of Paragraph (b) of this Subsection 2.2, the
Stock issuable upon the exercise of this Warrant shall be deemed to have
been issued to the Purchaser on the
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Exercise Date, and the Purchaser shall be deemed for all purposes to have
become the record holder of such Stock on the Exercise Date.
(d) The issuance of certificates for Stock upon exercise of this
Warrant shall be made without charge to the Registered Holder or the
Purchaser for any issuance tax in respect thereof or any other cost
incurred by the Company in connection with such exercise and the related
issuance of Stock.
(e) The Company shall not close its books for the transfer of this
Warrant or of any Stock in any manner that interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Stock is at all times equal to or less than the Exercise Price
then in effect.
2.3 Exercise Agreement. The Exercise Agreement shall be substantially in
the form set forth as Exhibit I hereto, except that if Stock is not to be issued
in the name of the Registered Holder of this Warrant, the Exercise Agreement
shall also state the name of the Persons to whom Stock is to be issued, and if
the number of Stock purchased does not include all of such Stock purchasable
hereunder, it shall also state the name of the Persons to whom new Warrants for
the unexercised portion of the rights hereunder are to be delivered. Any
transfer of Stock to a person other than a prior Registered Holder shall occur
only in compliance with the provisions regarding transfer contained in Section
12 of this Warrant.
2.4 Fractional Portions of Stock. If a fractional portion of Stock would be
issuable upon exercise of the rights represented by this Warrant, the Company
shall, within three (3) business days after the Exercise Date, deliver to the
Purchaser a check payable to the Purchaser, in lieu of such fractional portion
of Stock, in an amount equal to the Market Price of such fractional portion of
Stock as of the close of business on the Exercise Date.
SECTION 3
EXERCISE PRICE
3.1 General.
(a) The initial Exercise Price of this Warrant is set forth on the
front page of this Warrant. In order to prevent dilution of the rights
granted under this Warrant under the circumstances set forth herein, the
Exercise Price shall be subject to adjustment from time to time pursuant to
this Section 3.
(b) If and whenever the Company issues or sells, or in accordance with
Subsection 3.3 is deemed to have issued or sold, any shares of its Common
Stock for a consideration per share less than the Market Price in effect
immediately prior to the time of such issuance or sale (except as otherwise
provided by Subsection 3.2), then immediately
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upon each such issuance or sale, the Exercise Price shall be reduced to a
price determined by multiplying the Exercise Price in effect immediately
prior to the issuance or sale by a fraction, the numerator of which shall
be the sum of (i) the number of shares of Common Stock actually outstanding
prior to the issuance or sale, and (ii) the number of shares of Common
Stock that the minimum aggregate amount receivable by the Company upon such
issuance or sale on that occasion would purchase at the initial Exercise
Price, and the denominator of which shall be the number of shares of Common
Stock actually outstanding and Common Stock Deemed Outstanding under
Subsection 3.3 immediately after such issuance or sale.
3.2 No Adjustments in Certain Cases. No adjustment to the Exercise Price
under Paragraph (b) of Subsection 3.1 or under Subsection 3.3, or to the number
of shares issuable upon exercise of this Warrant under Section 4 shall be made:
(a) for the existence of, and any exercise, conversion or issuance of,
any Common Stock or other security of the Company under (i) the Warrants;
(ii) any option, warrant, or other right to purchase Common Stock that is
outstanding on the Agreement Date, (iii) any option issued under the
Company's 1992 Stock Option Plan, as in effect on the Agreement Date, (iv)
any option or contract right issued as compensation to an officer,
director, employee or consultant of the Company, whether or not issued
pursuant to the 1992 Stock Option Plan; (v) the Series A Preferred Stock
and the issuance of Common Stock as dividends or upon conversion of, the
Series A Preferred Stock; (vi) the Six Percent Convertible Debentures and
the issuance of Common Stock as interest on, or upon conversion of, the Six
Percent Convertible Debentures; or (vii) upon the issuance of Common Stock
or other Convertible Securities as a result of the exercise or conversion
of any option or warrant or other right of the Holder to acquire Common
Stock of Convertible Securities of the Company, whether outstanding as of
the Agreement Date or issued at any time subsequent to the Agreement date.
(b) upon the issuance of Common Stock upon exercise or conversion of
any option, warrant or other right or Convertible Securities for which
adjustments have previously been made upon issuance of such option,
warrant, right or Convertible Securities.
3.3 Effect on Exercise Price of Certain Events. For purposes of determining
the adjusted Exercise Price under Subsection 3.1 above, the following provisions
shall be applicable:
(a) Issuance of Rights and Options. If the Company in any manner
grants any rights or options to subscribe for or to purchase Common Stock
or any stock or other securities convertible into or exchangeable for
Common Stock (such rights or options being herein called "Options" and such
convertible or exchangeable stock or securities being herein called
"Convertible Securities") and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon conversion or exchange
of such Convertible
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Securities is less than the Market Price in effect immediately prior to the
time of the granting of such Options, then the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities shall be deemed to be outstanding and to have been issued and
sold by the Company for such price per share. For purposes of this
paragraph, the "price per share for which Common Stock is issuable upon
exercise of such Options or upon conversion or exchange of such Convertible
Securities" shall be determined by dividing (i) the total amount, if any,
received by the Company as consideration for the granting of such Options
plus the minimum aggregate amount of additional consideration payable to
the Company upon exercise of all such Options plus, in the case of Options
that relate to the Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
conversion or exchange of such Convertible Securities, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options and upon the conversion or exchange of all Convertible Securities
issuable upon the exercise of such Options.
(b) Issuance of Convertible Securities. If the Company in any manner
issues or sells any Convertible Securities, and the price per share for
which Common Stock is issuable upon conversion or exchange or such
Convertible Securities is less than the Market Price in effect immediately
prior to the time of such issuance or sale, then the maximum number of
shares of Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall be deemed to be outstanding and to have been
issued and sold by the Company for such price per share. For purposes of
this paragraph, the "price per share for which Common Stock is issuable
upon such conversion or exchange" shall be determined by dividing (i) the
total amount received by the Company as consideration for the issuance or
sale of such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (ii) the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities.
(c) Change in Option Price and Conversion Rate. If any change shall
occur in the price per share provided for in any of the options, rights or
warrants referred to in Paragraph (a) of this Subsection 3.3, or in the
price per share at which the Convertible Securities referred to in
Paragraph (b) of this Subsection 3.3 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 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 Securities.
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(d) Calculation of Consideration Received. If any Common Stock,
Options, or Convertible Securities are issued or sold or deemed to have
been issued or sold or consideration that includes unrestricted cash, then
the amount of cash consideration actually received by the Company shall be
deemed to be the full monetary value of the unrestricted cash portion
thereof. If any Common Stock, Options or Convertible Securities are issued
or sold or deemed to have been issued or sold for a consideration part or
all of which is other than unrestricted cash, then the amount of the
consideration other than unrestricted cash received by the Company shall be
deemed to be the Fair Value of such consideration.
(e) Integrated Transactions. If any Option is issued in connection
with the issuance or sale of other securities of the Company, together
compromising one integrated transaction in which no specific consideration
is allocated to such Option by the parties thereto, the Option shall be
deemed to have been issued without consideration.
(f) Treasury Shares. The number of shares of Common Stock Deemed
Outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any shares so owned
or held shall be considered an issuance or sale of Common Stock.
(g) Readjustment Upon Expiration of Options or Convertible Securities.
Upon the expiration of any of the options, warrants or rights referred to
in Paragraph (a) of this Subsection 3.3, or the Convertible Securities
referred to in Paragraph (b) of this Subsection 3.3, if such options,
warrants, rights or Convertible Securities 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 Securities have
been converted or exchanged, as the case may be, at a level at which the
Exercise Price 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 of such
Convertible 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 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 Securities, or (B) if none
of such options, warrants or rights have been exercised or such Convertible
Securities have been converted or exchanged, as the case may be, at a level
at which the Exercise Price 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 Securities.
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3.4 Subdivision and Combination of Common Stock; Stock Dividends. If the
Company shall at any time after the date hereof (a) issue any shares of Common
Stock or Convertible Securities, or any rights to purchase Common Stock or
Convertible Securities as a dividend upon Common Stock, (b) issue any shares of
Common Stock in subdivision of outstanding shares of Common Stock by
reclassification, stock split or otherwise, or (c) combine outstanding shares of
Common Stock by reclassification, reverse stock split or otherwise, then the
Exercise Price that would apply if purchase rights hereunder were being
exercised immediately prior to such action by the Company shall be adjusted by
multiplying it by a fraction, the numerator of which shall be the number of
shares of Common Stock Deemed Outstanding immediately prior to such dividend,
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock Deemed Outstanding immediately after such dividend,
subdivision or combination.
3.5 Certain Dividends and Distributions. If the Company shall declare a
dividend or distribution upon the Common Stock payable otherwise than out of
earnings or earned surplus and otherwise than in Common Stock, Options or
Convertible Securities, the Exercise Price shall be reduced by an amount equal,
in the case of a dividend or distribution in cash, to the amount thereof payable
per share of the Common Stock or, in the case of any other dividend or
distribution, to the Fair Value of such dividend or distribution per share of
Common Stock. For purposes of the foregoing, a dividend or distribution other
than in cash shall be considered payable out of earnings or earned surplus only
to the extent that such earnings or earned surplus are charged an amount equal
to the Fair Value of such dividend or distribution. Such reductions shall take
effect as of the date on which a record is taken for the purpose of such divided
or distribution, or, if a record is not taken, the date as of which the holders
of Common Stock of record entitled to such dividend or distribution are to be
determined. The adjustment called for by this Subsection 3.5 shall not apply to
dividends payable on the preferred stock issuable upon conversion of the
Debentures.
3.6 Manner of Calculating Adjustments; No De Minimis Adjustments. The
calculation of each adjustment of the Exercise Price shall be made accurate to
the nearest ten- thousandth. No adjustment of the Exercise Price shall be made
if the amount of such adjustment would be less than one cent per share. In such
case any adjustment that otherwise would be required to be made shall be carried
forward and shall be made at the time and together with the next subsequent
adjustment that, together with any adjustment or adjustments so carried forward,
shall amount to not less than one cent per share.
SECTION 4
ADJUSTMENT OF NUMBER OF STOCK ISSUABLE UPON EXERCISE
Upon each reduction of the Exercise Price pursuant to Section 3 hereof,
the Registered Holder shall thereafter (until another such reduction) be
entitled to purchase, at the Exercise Price in effect on the date purchase
rights under this Warrant are exercised, the number of Stock, calculated to the
nearest whole number of Stock, determined by (a)
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multiplying the number of Stock purchasable hereunder immediately prior to the
reduction of the Exercise Price by the Exercise Price in effect immediately
prior to such reduction, and (b) dividing the product so obtained by the
Exercise Price in effect on the date of such exercise.
SECTION 5
EFFECT OF REORGANIZATION, RECLASSIFICATION,
CONSOLIDATION, MERGER, SALE OR OTHER DISPOSITION
If at any time while this Warrant is outstanding there shall be any
reorganization or reclassification of the capital stock of the Company (other
than a subdivision or combination of shares provided for in Subsection 3.4
hereof), any consideration or merger of the Company with another corporation
(other than a consolidation or merger in which the Company is the surviving
entity and which does not result in any change in the Common Stock), or any sale
or other disposition by the Company of all or substantially all of its assets to
any other corporation, then the Registered Holder shall thereafter upon exercise
of this Warrant be entitled to receive the Stock and other securities and
property of the Company, or of the successor corporation resulting from
consolidation or merger, as the case may be, to which Purchasers of Stock would
have been entitled upon such reorganization, reclas- sification of capital
stock, consolidation, merger, sale or other disposition if this Warrant has been
exercised immediately prior to such reorganization, reclassification,
consolidation, merger, sale or other disposition. In any such case, appropriate
adjustment (as determined in good faith by the Board of Directors of the
Company) shall be made in the application of the provisions set forth in this
Warrant with respect to the rights and interests thereafter of the Registered
Holder to the end that the provisions set forth in this Warrant shall thereafter
be applicable, as near as reasonably may be, in relation to any Stock or other
securities or property thereafter deliverable upon the exercise hereof as if
this Warrant had been exercised immediately prior to such reorganization,
reclassification of capital stock, consolidation, merger, sale or other
disposition and the Registered Holder hereof had carried out the terms of the
exchange as provided for by such reorganization, reclassification of capital
stock, consolidation, merger, sale or other disposition. If in any such
reorganization, reclassification of capital stock, consolidation, merger, sale
or other disposition, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for or of a
security of the Company other than Common Stock deliverable from exercise of
this Warrant, any such issue shall be treated as an issue of Common Stock
covered by the provisions of Section 3, with the amount of the consideration
received upon the issue thereof being determined under Paragraph (e) of
Subsection 3.3. The Company shall not effect any such reorganization,
reclassification of capital stock, consolidation, merger, sale or other
disposition unless, upon or prior to the consummation thereof, the successor
corporation shall assume by written instrument the obligation to deliver to the
Registered Holder such shares of stock or other securities, cash or property as
such Registered Holder shall be entitled to purchase in accordance with this
Warrant's provisions.
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SECTION 6
NOTICE OF ADJUSTMENT
Immediately upon any adjustment of the Exercise Price, the Company
shall send written notice thereof to all Registered Holders, stating the
adjusted Exercise Price and the number of Stock purchasable upon exercise of
this Warrant and setting forth in reasonable detail the method of calculation
for such adjustment. When possible, such notice shall be given in advance and
included as part of any notice required to be given pursuant to Section 7 below.
SECTION 7
PRIOR NOTICE OF CERTAIN EVENTS
If at any time:
(a) The Company shall pay any dividend payable in stock upon
its Common Stock or make any distribution (other than cash dividends) to the
holders of its Common Stock of record;
(b) The Company shall offer for subscription pro rata to the
holders of its Common Stock of record any additional shares of stock of any
class or any other rights;
(c) There shall be any reorganization or reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with another corporation, or a sale or other disposition of all or substantially
all its assets;
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) The Company shall file any registration statement
pursuant to the Securities Act of 1933, as amended (the "Act"),
then, in each such case, and to the extent that the Company can reasonably do
so, the Company shall give prior written notice of the date on which (i) the
books of the Company shall close or a record shall be taken for such stock
dividend, distribution, subscription or other rights or (ii) such
reorganization, reclassification, consolidation, merger, sale or other
disposition, dissolution, liquidation, winding up or filing of a registration
statement shall take place, as the case may be. A copy of each such notice shall
be sent simultaneously to each transfer agent of the Company's Common Stock.
Such notice shall also specify the date as of which the holders of Common Stock
of record shall participate in said dividend, distribution, subscription,
registration or other rights or shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such reclassification,
consolidation, merger, sale or other disposition, dissolution, liquidation,
winding up or filing,
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as the case may be, and in any case contemplated by Paragraph (d) of Subsection
3.3, shall include the Company's calculation of the Fair Value of the
consideration whose Fair Value requires determination. Such written notice shall
be given at least thirty (30) days prior to the record date or the effective or
filing date, whichever is earlier, of the subject action or other event. The
failure by the Company to give any such notice shall not serve to invalidate any
action otherwise validly taken by the Company.
SECTION 8
RESERVATION OF COMMON STOCK
The Company shall at all times thereafter reserve and keep available
for issuance upon the exercise of the Warrants such number of its authorized but
unissued shares of Common Stock as will be sufficient to permit the exercise in
full of all outstanding Warrants, and upon such issuance such shares of Common
Stock will be validly issued, fully paid and nonassessable.
SECTION 9
NO SHAREHOLDER RIGHTS OR OBLIGATION
This Warrant shall not entitle the Registered Holder to any voting
rights or other rights as a shareholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the Registered Holder to
purchase Stock, and no enumeration in this Warrant of the rights or privileges
of the Registered Holder, shall give rise to any obligation of such Registered
Holder for the payment of the Exercise Price of Stock acquirable by exercise
hereof (in absence of such actual exercise) or as a shareholder of the Company.
SECTION 10
EXCHANGEABLE FOR DIFFERENT DENOMINATIONS
This Warrant is exchangeable, upon the surrender hereof by the
Registered Holder at the principal office of the Company, for new Warrants of
like tenor representing in the aggregate the purchase rights hereunder, as set
forth on the front page hereof, and each of such new Warrants will represent
such portion of such rights as is designated by the Registered Holder at the
time of such surrender. The date the Company initially issued this Warrant,
which is set forth on the front page hereof, shall be deemed to be the "Date of
Issuance" of this Warrant and any Warrant exchanged or substituted therefore,
regardless of the dates on which new Warrants representing the unexpired and
unexercised rights formerly represented by this Warrant are issued.
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SECTION 11
TRANSFERABILITY
Subject only to the transfer conditions referred to in this Section 11,
this Warrant and all rights hereunder are transferable, in whole or in part,
without restriction and without charge to the Registered Holder, upon surrender
of this Warrant with a properly executed Assignment (substantially in the form
of Exhibit II hereto) at the principal office of the Company. This Warrant and
the Stock issued upon exercise hereof may not be offered, sold or transferred
except in compliance with the Act and any applicable state securities laws, and
then only against receipt of an agreement of the Person to whom such offer or
sale is made to comply with the provisions of this Section 11 with respect to
any resale or other disposition of such securities; provided, that no such
agreement shall be required from any Person purchasing this Warrant or any Stock
pursuant to a registration statement effective under the Act. The Registered
Holder agrees that, prior to the disposition of any Stock purchased on the
exercise hereof under circumstances that might require registration of such
Stock under the Act, or any similar statute then in effect, the Registered
Holder shall give written notice to the Company, expressing its intention as to
such disposition. Within three (3) business days after receiving such notice,
the Company shall present a copy thereof to its securities counsel. If, in the
opinion of such counsel, which shall be rendered within five (5) business days
after receiving such notice, or in the opinion of the Registered Holder's own
counsel (which shall be in form and from such counsel as shall be reasonably
satisfactory to the Company), the proposed disposition does not require
registration of such Stock under the Act, or any similar statute then in effect,
the Company shall, within two (2) business days of the rendering of such
opinion, notify the Registered Holder of such opinion, whereupon the Registered
Holder shall be entitled to dispose of such Stock in accordance with the terms
of the notice delivered by the Registered Holder to the Company. The above
agreement by the Registered Holder shall not be deemed to limit or restrict in
any respect the exercise of rights set forth in Section 12 hereof.
SECTION 12
REGISTRATION RIGHTS
12.1 "Piggyback" Rights. If at any time during the Exercise Period, the
Company shall prepare and file a registration statement under the Act, with
respect to a public offering of equity or debt securities of the Company,
whether by the Company or by other Persons, then the Company shall include in
any such registration statement or any post-effective amendment to such
registration statement, such information as may be required to permit a public
offering of Stock held by any Registered Holders requesting inclusion of their
Stock; provided that where such offering is to be an underwritten offering, and
in the opinion of the Company's managing underwriter the inclusion of the Stock
requested to be registered, when added to the other securities being registered,
would exceed the maximum amount of the company's securities that can be marketed
without otherwise materially and adversely affecting the entire offering, then
the Company may exclude from such offering a portion of
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the Stock requested to be so registered, so that the total number of securities
to be registered is within the maximum number of shares that, in the opinion of
the managing underwriter, may be marketed without otherwise materially and
adversely affecting the entire offering. In the event there are previously
issued securities other than the Stock that are proposed to be registered in the
registration pursuant to registration rights that were granted prior to the
rights granted hereunder (the "Prior Rights"), then, the rights granted under
this Subsection 12.2 shall be subject to all such Prior Rights, and the Stock
may be excluded from such registration to the extent that the Prior Rights
require; provided, however, that the entire amount of any other securities
without Prior Rights shall be excluded from such registration before the
exclusion of any portion of the Stock for which registration was requested by a
Registered Holder. Each Registered Holder of Warrant Securities for whose
account any Stock may be included in a post-effective amendment or registration
statement shall have the unrestricted right to withhold Stock from inclusion in
the underwritten offering, without regard to whether registration was requested.
The Company shall bear all fees and expenses incurred by it in connection with
the preparation and filing of such post-effective amendment or new registration
statement. In the event of such a proposed registration, the Company shall
furnish the then Registered Holders of Warrant Securities with not less than
thirty (30) days' written notice prior to the proposed date of filing of such
post-effective amendment or new registration statement. Such notice shall
continue to be given by the Company to Registered Holders of Warrant Securities,
with respect to subsequent registration statements or post-effective amendments
filed by the Company, until such time as all of the Stock may be sold without
restriction under the Act and applicable state securities laws and regulations,
and the Registered Holders have received an opinion from counsel for the Company
(in such form and from counsel reasonably satisfactory to the Registered
Holders) that all of the Stock is so saleable under SEC Rule 144 or otherwise
within the immediate 90-day period commencing on the date a sale is requested.
The Registered Holders of Warrant Securities shall exercise the rights provided
for in this Subsection 12.2 by giving written notice to the Company, within
twenty (20) days of receipt of the Company's notice of its intention to file a
post-effective amendment or new registration statement.
12.2 Use of Prospectus. The Registered Holder, upon receipt of notice
from the Company of the occurrence of an event which requires a post-effective
amendment to a registration statement or an amendment or a supplement to the
prospectus included therein, shall promptly discontinue the sale of his Stock
until it has received copies of a supplemented or amended prospectus from the
Company, and until such receipt, the running of any minimum period of
effectiveness required by Subsection 12.1 shall be tolled.
12.3 Failure to Supply Information. Registered Holders requesting
inclusion of Stock in any registration statement filed by the Company shall, at
such Holder's cost and expense, cooperate fully and promptly with the Company
and its counsel in supplying such information concerning the Registered Holder
and such Holder's plan of distribution as may reasonably be required to effect
such registration. Any Registered Holder who fails to so cooperate and to timely
supply information to the Company that is required to obtain
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effectiveness of a registration statement shall have such Registered Holder's
Stock excluded from the registration statement without liability on the part of
the Company for any such failure to include the such Registered Holder's Stock
in the Registration Statement.
12.4 Withdrawal of Stock from Registration. Any Registered Holder who
withdraws such Holder's Stock from any registration statement commenced pursuant
to Subsection 12.1 hereof, at such Holder's request, shall be deemed to have
received full benefit of a completed registration under Subsection 12.1 hereof.
12.5 Exclusion of Stock from Certain Registrations. Notwithstanding
anything to the contrary contained herein, the registration rights granted to
the Holders hereunder shall not be available to allow inclusion of the Stock in
the Registration Statement first filed by the Company with the Commission as of
May 14, 1998 (SEC File No. 333-52625) or any post-effective amendment thereto,
unless the Holder has first obtained the written consent of all persons holding
Series A Preferred Stock to include the Stock in such registration. Holder
understands and agrees that the Company has no obligation to assist Holder in
obtaining such consent and that any holder of such Series A Preferred Stock may
refuse such consent in such holder's sole discretion.
SECTION 13
INDEMNIFICATION
(a) By the Company. The Company shall indemnify, to the full
extent permitted by law, the Registered Holder, its directors and officers (if
applicable) and each person, if any, who controls the Registered Holder within
the meaning of Section 15 of the Act, against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact contained in any registration statement, prospectus or
preliminary prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as the same are caused by
or contained in any information with respect to the Registered Holder furnished
in writing to the Company by the Registered Holder expressly for use therein.
(b) By the Registered Holder. In connection with any
registration statement in which the Registered Holder is participating, the
Registered Holder shall indemnify, to the full extent permitted by law, the
Company, its directors and officers and each person who controls the Company
(within the meaning of Section 15 of the Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of a material fact contained in any registration statement, prospectus
or preliminary prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances under
which they were made) not misleading, but
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only insofar as the same are caused by or contained in any information with
respect to the Registered Holder furnished in writing to the Company by the
Registered Holder expressly for use therein.
(c) Indemnification Procedures. Any person who is entitled
to indemnification under this Section 13 shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party.
Whether or not such defense is assumed by the indemnifying party, the
indemnifying party shall not be subject to any liability for any settlement made
without its consent. No indemnifying party shall consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and other
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels.
(d) Contribution. If for any reason an indemnification
provision of this Section 13 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in lieu
of indemnifying each indemnified party thereunder, shall contribute to the
amount paid or payable by the indemnified party as a result of any such loss,
claim, damage, liability or expense in such proportion as is applicable to
reflect not only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and
indemnifying party, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission to state material fact relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Actions by Registered Holder. The Registered Holder
shall, at his cost and expense, complete, execute and deliver all
questionnaires, powers of attorney, undertakings and other documents and
instruments, and take all such other actions, as are from time to time
reasonably requested by the Company.
(f) Survival. The rights and obligations set forth in this
Section 13 shall survive the exercise and surrender of this Warrant.
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SECTION 14
MISCELLANEOUS
14.1 Original Issue Taxes. The Company shall pay all United States,
state and local (but not foreign) original issue taxes, if any, upon the
issuance of this Warrant or the Stock deliverable upon exercise hereof.
14.2 Amendment and Waiver. Except as otherwise provided herein, the
provisions of the Warrants may be amended, and the Company make take any action
herein prohibited or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the Registered
Holders of Warrants representing at least fifty percent (50%) of the Stock
obtainable upon the exercise of the Warrants outstanding at the time of such
consent.
14.3 Notices. Any notices required to be sent to a Registered Holder
shall be delivered to the address of such Registered Holder shown on the books
of the Company. All notices referred to herein shall be delivered in person or
sent by registered or certified mail, postage prepaid, and shall be deemed to
have been given when so delivered in person, or on the third business day
following the date so sent by mail. Whether or not Purchaser or an affiliate
thereof shall then be a Registered Holder, a copy of any notice sent to any
Registered Holder shall be sent to in the manner provided above, at the
following addresses:
===========================
===========================
Attn: ____________________
Any notices required to be sent to the Company shall be sent by the
same means as notices to be sent to the Registered Holders, at the following
address:
U.S. Wireless Data, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
14.4 Attorney's Fees; Costs. In any litigation between the Company and
Registered Holders or former Registered Holders, including actions for
enforcement or interpretation, arising out of this Warrant, the prevailing party
shall be entitled to recover reasonable attorney's fees, costs and expenses.
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14.5 Descriptive Headings; Governing Law. The descriptive headings of
the sections, subsections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The construction,
validity and interpretation of this Warrant shall be governed by the laws of the
State of Colorado, without giving effect to choice of law or conflict of laws
principals, and the venue shall be Denver, Colorado.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and attested by its duly authorized officers under its corporate seal.
U.S. WIRELESS DATA, INC.,
a Colorado corporation
By: ____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
[Corporate Seal]
Attest:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Corporate Secretary
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
THE UNDERSIGNED Registered Holder, pursuant to the provisions set forth
by the within Warrant, hereby subscribes for and purchases _________________
shares of Stock covered by such Warrant and herewith elects to make:
( ) a Cashless Exercise at the Exercise Price provided by such Warrant.
( ) full cash payment of $ ______________ for such shares at the Exercise
Price provided by such Warrant.
__________________________________
(Signature)
__________________________________
(Print or type name)
__________________________________
__________________________________
(Address)
NOTICE: The signature on this Exercise Agreement must correspond with
the name as written upon the face of the within Warrant, or upon the Assignment
thereof if applicable, in every particular, without alteration, enlargement, or
any change whatsoever, and must be Medallion guaranteed by a bank (other than a
savings bank), or by a firm having membership on a registered national
securities exchange.
SIGNATURE GUARANTEE
Authorized Signature:__________________________________________________
Name of Bank or Firm: _________________________________________________
Dated: ________________________________________________________________
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _______________________ , the undersigned Registered
Holder hereby sells, assigns, and transfers all the rights of the undersigned
under the within Warrant No. ___________ with respect to the number of
Securities covered thereby set forth below, unto the Assignee identified below,
and does hereby irrevocably constitute and appoint ____________________________
____________________________________________________ to effect such transfer of
rights on the books of the Company, with full power of substitution:
No. of Shares
Name of Assignee Address of Assignee of Stock No. of Warrants
---------------- ------------------- -------- ---------------
Dated: ___________________________________
(Signature of Registered Holder)
___________________________________
(Print or type name)
NOTICE: The signature on this Assignment must correspond with the name
as written upon the face of the within Warrant, in every particular, without
alteration, enlargement, or any change whatsoever, and must be Medallion
guaranteed by a bank (other than a savings bank), or by a firm having membership
on a registered national securities.
SIGNATURE GUARANTEE
Authorized Signature:__________________________________________________
Name of Bank or Firm: _________________________________________________
Dated: ________________________________________________________________
