PURCHASE AGREEMENT
U.S. Wireless Data, Inc. (the "Company") and Tonga Partners, L.P. ("Tonga")
hereby agree as follows:
(1) Tonga represents and warrants to the Company that Tonga is the record
and beneficial owner of 136,411 shares of the Company's Series B Convertible
Preferred Stock (the "Securities").
(2) Tonga agrees to sell the Securities to the Company, and the Company
agrees to purchase such securities for $210,000 and warrants in the form
attached as Annex I hereto to purchase 15,000 shares of the Company's Common
Stock (the "Purchase Price").
(3) Within three business days of the date of this Agreement, Tonga shall
deliver to the Company by federal express at its address set forth in Section 6
below certificates representing the Securities, duly endorsed for transfer and
free and clear of all Liens (as defined below). Within two business days of
receipt of such Securities duly endorsed, the Company shall deposit the cash
portion of the Purchase Price and the executed warrants in federal express to
the address set forth in Section 6 below.
(4) Tonga represents and warrants to the Company, and by delivering the
Securities to the Company at the closing shall be deemed to represent and
warrant to the Company as of the closing date, that:
(a) Tonga has good and valid title to the Securities, free and clear
of all liens, encumbrances, equities, claims, proxies or other voting rights
("Liens"); and, upon delivery of such Securities and the consummation of the
sale pursuant hereto, the Company will receive good and valid title to such
Securities, free and clear of all Liens.
(b) All consents, approvals, authorizations and orders necessary for
the execution, delivery and performance by Tonga of this Agreement have been
obtained; and Tonga has full right, power and authority to execute, deliver and
perform this Agreement; and this Agreement is a valid and binding obligation of
Tonga, enforceable against Tonga in accordance with its terms.
(c) Upon receipt of the Purchase Price, Tonga will have no claims
against the Company with respect to the Securities or any converitble debentures
and the related agreements, including without limitation, any claims as to
registration rights (including a claim that the Company has been late in
registering any securities, including common stock underlying convertible
debentures) or any interest or penalties (whether related to the Securities or
convertible debentures).
(5) Each party, for itself and on behalf of all direct and indirect
partners, officers, directors, employees, affiliates (both persons and
entities), representatives, agents, representatives, servants, trustees,
beneficiaries, predecessors in interest, successors in interest, assigns,
nominees and insurers (collectively, the "Releasing Parties"), shall be deemed
to have released and forever discharged the other party and its officers,
directors, employees, affiliates (both persons and entities), agents,
representatives, servants, trustees, beneficiaries, processors in interest,
successors in interest, assigns, nominees and insurer of each such party, of and
from any and all claims, demands, actions and causes of actions, whether known
or unknown, fixed or contingent, that any of the Releasing Parties may have had,
may now have or may hereafter acquire with respect to any matters whatsoever
arising under or in any way related to the purchase and sale of the Company's 6%
convertible debentures due July 21, 2000 and Series B Preferred Stock.
Notwithstanding anything to the contrary contained herein, the foregoing release
shall not release either party from claims arising from a breach of this
agreement or under the warrants delivered as part of the Purchase Price.
Each of the parties hereto represents, warrants and covenants that it
has not, and at the time this release becomes effective will not have, sold,
assigned, transferred or otherwise conveyed to any other person or entity all or
any portion of its rights, claims, demands, actions or causes of action herein
released.
Each of the parties hereto acknowledge that its is familiar with
Section 1542 of the Civil Code of the State of California, which provides as
follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor."
Each of the parities hereto hereby waives any and all rights and
benefits that it now has or in the future may have under Section 1542 of the
Civil Code (and under the comparable provisions of any other applicable law) and
agrees and acknowledges that this Agreement contains a full and final release
applying to unknown and unanticipated claims, injuries or damages arising out of
the subject matter hereof, as well as to those now known or disclosed.
(6) Notices. Each notice required hereunder shall be in writing, be
delivered by hand, mail, telegram, or facsimile transmission, postage prepaid,
and shall be deemed to have been duly given or made when received by the party
to which it was sent at its following address (or at such other address as may
hereafter be furnished by one party to the other in writing):
To the Company:
US Wireless Data, Inc.
805 Third Avenue - 8th Floor
New York, NY 10022
Attn: Dean Leavitt
To Tonga Partners, L.P.:
c/o Cannell Capital Management
600 California Street
San Francisco, California 94108
Attn: Linda Fung
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(7) Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
IN WITNESS WHEREOF, the parties have has signed this Agreement as of this
_______ day of May 2000.
THE CUTTYHUNK FUND LIMITED
By:
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Name:
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Title:
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U.S. WIRELESS DATA, INC.
By:
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Name:
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Title:
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