EXHIBIT 4.3
U.S. WIRELESS DATA, INC.
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REGISTRATION RIGHTS AGREEMENT
RELATING TO
THE 6% CONVERTIBLE SUBORDINATED DEBENTURES
DUE JULY 21, 2000
AND
CERTAIN COMMON STOCK PURCHASE WARRANTS
ISSUED IN CONJUNCTION WITH THE DEBENTURES
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July 22, 1998
TABLE OF CONTENTS
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1. REGISTRATION UNDER THE SECURITIES ACT OF 1933
Section 1.1 Certain Definitions.................................2
Section 1.2 Proposed Transfers..................................3
Section 1.3 Company Registrations...............................4
Section 1.4 Mandatory Registration .............................5
Section 1.5 Expenses of Registration............................7
Section 1.6 Registration Procedures.............................8
Section 1.7 Indemnification....................................12
Section 1.8 Information by Holder..............................12
Section 1.9 Termination of Registration Rights.................12
Section 1.10 Lockup.............................................12
2. MISCELLANEOUS
Section 2.1 Survival of Covenants; Successors and Assigns......12
Section 2.2 Assignability of Rights............................12
Section 2.3 Communications and Notices.........................12
Section 2.4 Law Governing......................................13
Section 2.5 Subsequent Instruments and Acts....................13
Section 2.6 Severability.......................................13
Section 2.7 Entire Agreement; Amendments.......................13
Section 2.8 Delays, Omissions, and Waivers.....................14
Section 2.9 Authorization......................................14
Section 2.10 Gender, Number and Tense...........................14
Section 2.11 Headings...........................................14
Section 2.12 Counterparts.......................................14
Section 2.13 Remedies...........................................14
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of this
22nd day of July, 1998, among U.S. WIRELESS DATA, INC., a Colorado corporation
(the "Company"), and the purchaser of the Company's 6% Convertible Subordinated
Debentures Due July 21, 2000 (the "Debentures") and Common Stock Purchase
Warrants exercisable at _______________________________________ Dollars
($________) per share through July 21, 2001 (the Warrants"), who has signed the
signature page of this Agreement (the "Holder").
RECITALS
A. The Holder and the Company are parties to the Purchase Agreement of even
date herewith (the "Agreement") whereby Holder has been issued Debentures in the
amount set forth on the Purchase Agreement executed by Holder, in exchange for
cash paid to the Company in like amount and Warrants exercisable to purchase
______________________________ (__________) shares of Common Stock, and under
certain circumstances as described in the Debenture Agreement dated as of July
22, 1998, the Company may be required to issue additional Common Stock Purchase
Warrants (the "Redemption Warrants") to the Holder (collectively, the Common
Stock issuable upon exercise the Warrants and the Redemption Warrants is
referred to hereafter as the "Warrant Stock").
B. Upon satisfaction of certain conditions: the Debenture is convertible
into shares of the Company's no par value Common Stock (the "Conversion Stock");
and in certain cases, interest payable on the Debenture may be payable in Common
Stock (the "Interest Stock"), all pursuant to the formulas stated in the
Debenture.
C. The Holder is willing to have all of its rights with respect to
registration of his/her/its Registrable Securities (as defined below) under the
Securities Act of 1933 governed by this Agreement.
TERMS
NOW, THEREFORE, in consideration of the promises and covenants and the
mutual obligations of the parties hereto, as stated herein, the parties agree as
follows:
REGISTRATION UNDER THE SECURITIES ACT OF 1933.
Section 1.1 Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Blue Sky Laws" shall mean the securities regulation laws of
any political subdivision of the United States.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Holder" shall mean the holder of outstanding Registrable
Securities.
"Initial Issuance Date" shall mean the initial date of
issuance of the Debentures to any Holder.
"Potential Material Event" shall mean any of the following:
(a) possession by the Company of material information not ripe for disclosure in
a registration statement, which shall be evidenced by a determination made in
good faith by the Board of Directors of the Company that disclosure of such
information in the registration statement would be seriously detrimental to the
business and affairs of the Company; (b) any material engagement or activity of
the Company which would, in the good faith determination of the Board of
Directors of the Company, be adversely affected by disclosure in a registration
statement at such time, which determination shall be accompanied by a good faith
determination by the Board of Directors of the Company that the registration
statement would be materially misleading absent inclusion of such information.
The terms "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement by the Commission.
"Registrable Securities" means (i) the Conversion Stock (ii)
the Interest Stock; (iii) the Warrant Stock; and (iv) any other securities
issued with respect to any of the above securities by way of dividends,
stock-splits, recapitalization, adjustments or the like. Registrable Securities
do not include: (i) any of the above securities which have been registered
pursuant to a registration statement under the Act and sold pursuant thereto or
which have otherwise become eligible for sale in the public market; or (ii) any
of the above securities as to which the rights granted hereunder have terminated
pursuant to Section 1.10 of this Agreement.
"Registration Expenses" shall mean all expenses incurred by
the Company in complying with Section 1.6 below, including, by way of
illustration only and without
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limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, underwriting expenses not included in
Selling Expenses, and the expense of any audits or financial statement reviews
incident to or required by any such registration (including the expense of any
cold comfort letters), and Blue Sky fees and expenses (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company).
"Restricted Securities" shall mean the securities of the
Company required to bear the legend substantially the same as the legend set
forth in Section 1.2(D) of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean the underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and any
fees of any counsel or other advisors retained by or to represent any Holder.
Section 1.2 Proposed Transfers.
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The Holder, by entering into this Agreement, agrees to comply in all
respects with the following provisions:
(A) Except with respect to transactions not involving a change in
beneficial ownership, any request for transfer of Registrable Securities
(other than under circumstances described in Section 1.3 and Section 1.4
below), if reasonably requested by the Company, shall be accompanied by a
written opinion of legal counsel (which shall be reasonably satisfactory to
the Company and its counsel) stating that the proposed transfer of the
Registrable Securities may be effected without registration under the
Securities Act and without Blue Sky qualification, and which opinion may be
"reasoned" and/or based upon (i) no action letters issued by the Commission
which are based on similar facts or circumstances and/or (ii) telephone
conversations or written correspondence with the staff of the Commission.
(B) Having satisfied Subsection 1.2(B) above, the Holder shall be
entitled to transfer the Registrable Securities in accordance with the
terms of the notice delivered by the Holder to the Company.
(C) Each certificate evidencing Registrable Securities shall (unless
otherwise permitted by the provisions of this Agreement) be stamped or
otherwise imprinted with a legend in substantially the following form in
addition to any legend acquired under applicable state securities laws:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, OFFERED FOR
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SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT AND SUCH LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
The Company shall remove such restrictive legend upon the request of Holder if
(1) the Company has received an opinion of counsel who is reasonably acceptable
to it and its counsel to the effect that registration of any and all future
transfers is not required, (2) an appropriate registration statement with
respect to such Registrable Securities has been filed by the Company with the
Commission and declared effective by the Commission and the shares of
Registrable Securities to be sold under the registration statement have been
sold thereunder and in compliance with the applicable plan of distribution
contained therein and any qualifications required under any Blue Sky Laws, (3)
such transfer shall be made in compliance with the requirements of Rule 144 or
its successor, or (4) Holder has met the requirements of subparagraph (k) of
Rule 144 or its successor. Under any of these circumstances, the Company shall
cause new certificates without the above legend to be issued promptly to the
Holder or the Holder's designee in exchange for outstanding legended
certificates.
Section 1.3 Company Registrations.
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(A) Notice and Piggyback Rights. If at any time the Company shall
decide to register any of its securities, the Company will:
(1) promptly give to Holder written notice of the registration
(which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable
Blue Sky laws); and
(2) include in such registration (and any related Blue Sky
qualification or other compliance reasonably requested by Holder in
order to sell such securities), and in any underwriting involved, all
the Registrable Securities specified in a written request, made within
20 days after receipt of such written notice from the Company, by the
Holder, except as set forth in Subsection 1.3(B) below.
The provisions of this Subsection 1.3(A) do not apply to any of the
following: (i) a registration on any registration form which would not permit
secondary sales by Holder, (ii) a registration which relates solely to employee
benefit plans, or (iii) a registration which relates solely to a Commission Rule
145 transaction.
(B) Underwriting; Limits. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting,
the Company shall so advise the Holder as a part of the written notice
given pursuant to Subsection 1.3(A). If
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Holder proposes to distribute its Registrable Securities through such
underwriting, it shall enter into an underwriting agreement in customary
form with the underwriters selected by the Company. Notwithstanding any
other provision of this Section 1.3, if the underwriter determines that
marketing factors require a limitation of the amount of securities to be
registered, the Company may exclude from such registration any Registrable
Securities requested to be included. If Holder disapproves of the terms of
any such underwriting, it may elect to withdraw therefrom by written notice
to the Company and the underwriter within five (5) days after receipt of
such notice, and any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from registration.
(C) Waiver. The Holder's rights under this Section 1.3 may be waived
as to any particular offering by the Holder.
Section 1.4 Mandatory Registration upon Issuance of the Debentures.
-------------------------------------------------------
(A) Mechanics. The Company shall use its best efforts to prepare and
file a shelf registration statement and other qualifications or compliances
with respect to all Registrable Securities held by the Holder. Holder shall
advise the Company as to those specific jurisdictions in which Holder
reasonably expects to offer the Registrable Securities for sale during such
period. Holder shall not be entitled to fulfill the requirements of this
designation by stating "all states" or by listing each and every state in
the United States. Holder shall further advise the Company of any plan of
distribution for the Registrable Securities and shall provide the Company
with such information as it may reasonably request to allow the Company to
comply with all applicable federal and state statutes and regulations as
may be applicable to the registration. Holder shall enter such further
agreements and provide such information as the Company shall reasonably
request setting forth additional terms applicable to Holder and the
distribution of Holder's Registrable Securities as may be requested by the
Company to allow it to comply with any applicable state or federal law,
regulation or policy. The failure of Holder to provide such information
and/or to enter into such agreements may preclude Holder from having
Holder's Registrable Securities included in the registration.
The Company will:
(1) Use its diligent best efforts to file as soon as practicable,
but in any event within seventy five calendar days (75) days after the
Initial Issuance Date, all such registrations, qualifications and
compliances as may be so requested and as would facilitate the sale
and distribution of all or such portion of such Holder's Registrable
Securities as are specified in the request, and respond to any
comments from federal and/or state regulatory authorities within
fifteen (15) days of receipt of any such comments.
(2) Use its diligent best efforts to prepare, file and obtain
effectiveness of the registration statement under this Section 1.4 on
no more than one (1)
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occasion, excluding offerings by Holder pursuant to Section 1.3 above.
If any proceeds of the offering are received by the Company, the
offering will be deemed to be pursuant to Section 1.3 above.
(3) Use its best efforts to keep the registration statement
effective continuously for no less than twenty four (24) months from
the Initial Issuance Date, subject to the right of the Company to
suspend sales under the registration statement during such period(s)
as described in Subsection 1.6(E). Any suspension of sales during such
period of effectiveness shall not toll the twenty four (24) month
period.
(B) Exceptions. The Company shall not be obligated to effect any
registration, qualification, or compliance requested by Holder with respect
to a proposed distribution of Registrable Securities by Holder under this
Section 1.4:
(1) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification or compliance or where such
registration, qualification or compliance would be legally
unattainable or unreasonably expensive or onerous for the Company, in
light of all circumstances and other avenues available to the Holder
for disposing of Registrable Securities; or
(2) if the Company has effected one (1) such registration
pursuant to this Section 1.4 and such registration has been declared
and ordered effective and has remained effective for twenty four (24)
months from the Initial Issuance Date.
If the Company shall furnish to Holder a certificate signed by the
President of the Company stating that there exist a Potential Material Event,
then the Company's obligation to use its best efforts to file a registration
statement under this Section 1.4 shall be deferred for a period during which
such Material Potential Event exists, provided that this period will not exceed
ninety (90) days after the expiration of the initial ninety (90) days within
which to file such registration statement, and provided further that the Company
shall not defer its obligations in this manner more than once in any
twelve-month period. Nothing done by the Company pursuant to this paragraph
shall in any way prevent application of the penalty provisions contained in the
Debentures that create the obligation of the Company to compensate the Holders
should the effectiveness of the registration statement be delayed beyond 120
days from the date of the Initial Issuance Date.
(C) Underwriting. If the Holder intends to distribute the Registrable
Securities covered by its request by means of an underwriting, it shall so
advise the Company as a part of its request made pursuant to Section 1.4.
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(1) The Holder shall negotiate with an underwriter selected by
Holder and reasonably approved by the Company with regard to the
underwriting of the requested registration.
(2) The right of Holder to include its Registrable Securities in
a registration pursuant to Section 1.4 shall be conditioned upon the
Holder's participation in such underwriting on the terms and
conditions of such underwriting and upon the inclusion of the Holder's
Registrable Securities sought to be registered in the underwriting.
(3) The Company shall (together with Holder) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for the underwriting by the Holder.
(4) Notwithstanding any other provision of this Section l.4, if
the underwriter advises the Holder in writing that marketing factors
require a limitation of the number of shares to be underwritten, the
Company will then include in such registration, prior to the inclusion
of any other securities which are not Registrable Securities, the
number of shares of Registrable Securities that the underwriter
believes may be included in the registration. A registration will not
count as the registration request permitted under this Section 1.4
unless the Holder is able to register and sell all of the Registrable
Securities requested to be included in such registration.
(D) Holder understands and agrees that other securityholders of the
Company may have registration rights that must be honored by the Company's
obligations to register Registrable Securities hereunder. Holder agrees
that such rights may be honored by the Company and that such other
securities may be included in the registration(s) filed pursuant to
Sections 1.3 and 1.4 of this Agreement. The Company agrees that it shall
not grant any additional rights to any person which would entitle such
person to have shares of the Company's Common Stock (or other securities
exercisable for or convertible into Common Stock) included in any
registration statement filed hereunder without the consent of Holders of no
less than fifty percent (50%) of all Registrable Securities.
(E) Holder understands and agrees that any Registrable Securities
remaining unsold by Holder at the time the Registration Statement expires
may be deregistered and cannot thereafter be sold absent reregistration or
compliance with Section 1.2 of this Agreement.
Section 1.5 Expenses of Registration.
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(A) Registration Expenses. All Registration Expenses incurred in
connection with registration, qualification or compliance under Section 1.3
and Section 1.4 shall be borne by the Company; provided that with respect
to securities being registered pursuant to Section 1.3, Holder agrees that
it will pay all Blue Sky fees associated with the registration
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of Registrable Securities in those states in which the Company is not
otherwise registering or qualifying shares of its stock for sale in such
registration, other than the State of New York.
(B) Selling Expenses. All Selling Expenses incurred in connection with
these transactions shall be borne by the Holder.
(C) Legal Expenses. Holder shall bear its own expenses, if any, for
the fees and disbursements of counsel or other advisors to such Holder
incurred in connection with these transactions.
(D) Ineffective Requested Registration. The Company shall not be
required to pay any Registration Expenses if the registration statement
does not become effective as a result of the withdrawal of the request for
registration by the Holder pursuant to Subsection 1.4(A), which withdrawal
was not caused by the Company's failure to comply with applicable
registration requirements and regulations. In such a case, the Holder shall
bear a proportional share of such Registration Expenses and such
registration shall not be counted as a registration pursuant to Subsection
1.4(A), or the Holder may determine not to bear such expenses and such
registration shall be counted as a registration pursuant to Subsection
1.4(A).
Section 1.6 Registration Procedures.
-------------------------
In the case of each registration, qualification or compliance effected by
the Company pursuant to this Agreement, the Company will keep Holder advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense the Company will:
(A) Advise the Holder within forty eight (48) hours of the
effectiveness with the SEC of any registration statement which includes
shares eligible for sale by the Holder thereunder.
(B) Keep such registration, qualification or compliance effective
until the Holder has completed the distribution described in the
registration statement), but for not more than twenty four (24) months from
the Initial Issuance Date (or if the registration is underwritten, 90 days
from the date of effectiveness); provided, however, that the Company shall
not be required to maintain an effective registration for shares that, even
though included in an initial registration, are no longer classified as
Registrable Securities by reason of the termination of the rights granted
hereunder pursuant to Section 1.10 of this Agreement.
(C) Furnish such number of prospectuses (including preliminary
prospectuses, sticker supplements and amendments) and other documents
incident to the registration as Holder from time to time may reasonably
request.
(D) At the time when any registration statement becomes effective, and
at the time when any post-effective amendment becomes effective, request
counsel to furnish to
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the Holder an opinion of counsel in customary form and reasonably
satisfactory to the Holder.
(E) Notify Holder, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and at the request
of Holder, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading. Between such time as the Company
notifies a Holder pursuant to this Subsection and the time any such
supplement or amendment is effective and available for use, the
registration shall be suspended and no sales by Holder shall be made of
Registrable Shares thereunder during such period.
(F) Cause all such Registrable Securities to be listed on each
securities exchange, quotation system or other market on which similar
securities issued by the Company are then listed.
(G) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement.
(H) Obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the Holder may reasonably
request.
(I) Furnish an opinion of counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering.
Section 1.7 Indemnification.
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(A) Company's Obligation to Indemnify.
(1) Generally. Subject to subparagraph (3) below, with respect to
any registration, qualification or compliance which has been effected
pursuant to this Agreement, the Company will indemnify Holder, its
officers, directors, and partners and each person controlling Holder,
each legal counsel, and each underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue or alleged untrue statement of, or omission or
alleged omission of a material fact contained in, or required to be
stated in any registration statement, including any preliminary or
final prospectus, offering circular or other document incident to any
such registration, qualification, or compliance. The Company will
further indemnify such persons against
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any violation or alleged violation by the Company of any rule or
regulation promulgated under the Securities Act or any applicable
state securities law in connection with any such registration,
qualification or compliance.
(2) Reimbursement. The Company will promptly reimburse Holder,
and each of its officers, directors, partners and controlling persons,
each legal counsel and each such underwriter, for any legal and any
other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating or defending any such claim, loss,
damage, liability or action.
(3) Limitation. The Company will not be liable in any such case
to the extent that any claim, loss, damage, liability or expense
arises out of any untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in such registration statement,
including any preliminary or final prospectus, offering circular or
other document, is based upon written information furnished to the
Company by an instrument duly executed by Holder or underwriter and
which is stated to be specifically for use therein.
(4) Survival of Obligation. The obligations of the Company under
this Section 1.7 shall survive the completions of the offerings of
Registrable Securities under the registration statements, and
otherwise.
(B) Holder's Obligation to Indemnify.
(1) Generally. Subject to subparagraph (3) below, Holder will
indemnify the Company, each legal counsel and independent accountant
of the Company, each underwriter of the Company's securities covered
by such a registration statement, and each person who controls the
Company within the meaning of the Securities Act, and all of their
respective officers, directors and partners, against all claims,
losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue or alleged untrue statement of,
or omission or alleged omission of a material fact contained in, or
required to be stated in, any registration statement, including any
preliminary or final prospectus, offering circular or other document.
(2) Reimbursement. Furthermore, Holder will promptly reimburse
the Company, underwriters, legal counsel and independent accountants
and all of their respective officers, directors, partners, and
controlling persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim,
loss, damage, liability or action.
(3) Limitation. In any case, Holder's obligation under this
Subsection 1.7(B) shall extend only so far as the untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in
such registration statement (including any
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preliminary or final prospectus), offering circular, or other document
in reliance upon written information furnished to the Company by an
instrument duly executed by Holder and which is stated to be
specifically for use therein.
(4) Survival of Obligation of the Holder. The obligations of
Holder under this Section 1.7 shall survive the redemption and
conversion, if any, of the Purchased Stock, the completions of the
offerings of Registrable Securities under the registration statements,
and otherwise.
(C) Indemnifying Party May Assume Defense.
(1) Generally. Each party entitled to indemnification under this
Section 1.7 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought. Unless in such Indemnified
Party's reasonable judgment a conflict of interest between such
Indemnified and Indemnifying Parties may exist with respect to such
claim, the Indemnified Party shall permit the Indemnifying Party to
assume the defense of any such claim or any resulting litigation. But
counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be ap- proved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at its own expense.
Failure by the Indemnified Party to provide such written notice shall
not relieve the Indemnifying Party from its obligation under this
Section 1.7. In the event that the Indemnifying Party does not assume
the defense of any such claim or any resulting litigation within a
reasonable period of time, or in the event disparate interests of the
Indemnified and Indemnifying Parties require the Indemnified Party to
seek separate counsel, the Indemnified Party may assume the defense
with counsel of its choice, and the Indemnifying Party will pay the
reasonable expense of such counsel; provided, however, that the
Indemnifying Party will be required to assume the expense of only one
single counsel for all Indemnified Parties in connection with any
given claim or litigation.
(2) Settlement Approval, Release Required. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional
term the giving by the claimant or plaintiff to the Indemnified Party
of a release from all liability in respect to such claim or
litigation. Furthermore, the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1.7.
(D) Contribution. If recovery is not available under the
foregoing indemnification provisions of this section for any reason
other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution
for liabilities and expenses, except to the extent that contribution
is not permitted under the
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Securities Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the
securities (taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and access
to information concerning the matter with respect to which the claim
was asserted, the party who supplied or failed to supply the
information as to which the claim is asserted, the opportunity to
correct and prevent any statement or omission, and any other
equivalent considerations appropriate under the circumstances.
Section 1.8 Information by Holder. The Holder shall furnish to the Company
such information regarding the Holder and the distribution proposed by the
Holder, as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
Section 1.9 Termination of Registration Rights. The registration rights
granted pursuant to this Section 1 shall terminate with respect to any
particular Registrable Securities upon the earlier to occur of: (i) two (2)
years from the date of this Agreement; or (ii) the date on which such
Registrable Securities are eligible for resale pursuant to the provisions of
Rule 144(k) of the Commission (or any similar or successor to Rule 144(k)),
without limitations as to the amount of such securities which may be sold under
such Rule(s).
Section 1.10 Lockup. In the event the Company files a registration
statement with the Commission in connection with a public offering of the
Company's securities, Holder agrees, if so requested by the Company or the
underwriter of such offering, that Holder will not effect, or permit to be
effected on Holder's behalf, any public sale or distribution of any shares of
capital stock of the Company (except as part of such registration and public
offering, if so permitted) during the 30-day period beginning on the first date
of the effectiveness of such registration.
2. MISCELLANEOUS.
Section 2.1 Survival of Covenants; Successors and Assigns. All covenants,
agreements, representations and warranties made by the parties in this Agreement
shall survive the closing of the transactions contemplated by this Agreement.
All such covenants, agreements, representations and warranties will inure to the
benefit of, and be binding upon, any successors, assigns, heirs, transferees,
executors, and administrators of the parties hereto.
Section 2.2 Assignability of Rights. The Company may not assign any of its
rights or delegate any of its duties under this Agreement without the written
consent of Holder.
Section 2.3 Communications and Notices. Except as otherwise provided for in
this Agreement, all communications and notices provided for in this Agreement
shall be in
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writing and will be given by telegram, facsimile (with delivery confirmed by the
party giving notice), express courier holding itself out as able to make
delivery within one business day of receipt, hand delivery receipted by the
addressee, or by mail (postage-paid, certified mail, return receipt requested)
to such address and for such attention, as any party may from time to time
designate by notice in writing to the Company or to the Holder as the case may
be. Notice will be effective one business day after delivery to a telegraph
company or express courier, three business days after deposit in the U.S. Mail
as provided above, or upon receipt if hand- delivered or facsimile-delivered, as
the case may be. All notices shall be sent to the Holders at their addresses as
they appear on the Company's records. All notices to be sent to the Corporation
shall be sent as follows:
U.S. Wireless Data, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to: Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, President
The address and facsimile number to which any notice is to be sent hereunder may
be changed by the sending of notice to such effect, setting forth the changed
address to which notices should be sent thereafter.
Section 2,4 Law Governing. This Agreement shall be governed by the Laws of
the State of Colorado in all respects, as such laws are applied to agreements
among Colorado residents entered into and to be performed entirely within
Colorado.
Section 2.5 Subsequent Instruments and Acts. The parties agree that they
will execute any further instruments and perform any acts that may become
necessary to carry out this Agreement.
Section 2.6 Severability. If any term, provision, covenant, or condition of
this Agreement, or its application to any person or circumstance, shall be held
by a court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such term, provision, covenant, or condition as
applied to other persons or circumstances shall remain in full force and effect.
Section 2.7 Entire Agreement; Amendments.
(A) This Agreement and the other documents and agreements delivered
pursuant hereto constitute the full and entire agreement and understanding
among the parties with regard to the subjects hereof and thereof.
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(B) This Agreement may not be amended orally. Amendment to this
Agreement, or of any supplement, and of the rights and obligations of the
Company and of the Holder, may be made only by the Company and Holder in
writing.
Section 2.8 Delays, Omissions, and Waivers. No delay or omission to
exercise any right, power or remedy (with the exception of a delay by an
Indemnified Party in providing notice to the Indemnifying Party pursuant to
Section 1.7(C) hereof) accruing to the Company or Holder, upon any breach or
default of any party hereto under this Agreement, will impair any such right,
power or remedy of the Company or Holder nor will it be construed to be a waiver
of any such breach or default, or an acquiescence therein, nor will any similar
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring; nor will any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of the Company or Holder of any provision or conditions of this
Agreement, must be in writing and will be effective only to the extent
specifically set forth in such writing. No waiver by the Holder of any provision
of this Agreement will be effective without a written consent signed by Holder.
Section 2.9 Authorization. Each of the undersigned representatives of the
parties warrants and represents that he is duly authorized to execute this
Agreement on behalf of the respective party for which he signs, and that the
organization on whose behalf he signs is currently in good standing in the
jurisdiction where organized.
Section 2.10 Gender, Number and Tense. Throughout this Agreement, as the
context may require:
(A) The masculine gender includes the feminine and neuter; and the
neuter gender includes the masculine and feminine; and
(B) The singular number includes the plural, and the plural number
includes the singular.
Section 2.11 Headings. The headings of the Sections and Subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
Section 2.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 2.13 Remedies. No remedy herein conferred upon the parties hereto
is intended to be exclusive of any other remedy herein or provided by law, but
each shall be cumulative and shall be in addition to every other remedy set
forth in this Agreement or
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existing at law, in equity, or by statute. The parties specifically acknowledge
that under certain circumstances the parties may be entitled to specific
performance and/or injunctive relief where without such remedies the damage to
the injured parties may be irreparable and money damages inadequate. Moreover,
in any suit between or among the parties hereto for such breach of the
provisions hereof, the prevailing party in such suit shall be entitled to
receive from the breaching party, reasonably attorneys' fees and disbursements
incurred in the prosecution of such suit.
[The remainder of this page has been left intentionally blank.]
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Signature Page to Registration Rights Agreement - 6% Convertible Subordinated
Debentures
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the day and year first written above.
THE COMPANY:
U.S. WIRELESS DATA, INC.,
a Colorado corporation
By: _____________________________
Its: ____________________________
THE HOLDER:
_________________________________
[Print or Type Name]
________________________________
[Signature]
________________________________
________________________________
[Address for Notices]
________________________________
[Telephone Number, including area codes]
________________________________
[FAX Number, including area codes]
________________________________
[Date]
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