THIS OPTION 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 OPTION AND SUCH SHARES 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. NO REGISTRATION RIGHTS HAVE BEEN GRANTED
WITH RESPECT TO THIS OPTION AS OF ITS ORIGINAL DATE OF ISSUANCE.
U.S. WIRELESS DATA, INC.
NONQUALIFIED STOCK OPTION CERTIFICATE
U.S. Wireless Data, Inc., a Colorado corporation ("Company"), for good and
valuable consideration, including the incentive to the Optionee to remain as an
employee of the Company as a result of ownership or increased ownership of the
Company's no par value common stock ("Common Stock"), the receipt and
sufficiency of which consideration hereby is acknowledged, irrevocably grants to
the Optionee the option ("Option") to purchase the following number of shares of
Common Stock:
Optionee Number of Shares
-------- -----------------
Charles I. Leone 350,000
The effective date of this grant is February 15, 2000 ("Date of Grant") and is
subject to the following terms and conditions:
1. EXERCISE PRICE. The purchase price ("Exercise Price") for shares of
Common Stock purchasable pursuant to this Option shall be Two and 434/1000
Dollars ($2.434) per share, which shall be paid in full in cash at the time of
exercise; provided, however, that the Board of Directors of the Company may in
its sole discretion permit payment to be made with shares of the Company's
Common Stock owned by Optionee (a "Cashless Exercise"). The Exercise Price
represents the fair market price of the Company's Common Stock as of the date
this Option is granted. Optionee shall have no rights with respect to dividends
or have any other rights as a shareholder with respect to shares subject to this
Option until Optionee has given written notice of the exercise of the Option and
has paid in full for such shares.
2. VESTING AND TIME OF EXERCISE. This Option will vest 116,666 shares per
yearly anniversary date following grant date. In the event Optionee is
terminated from employment with the Company without "cause" or elects to
terminate his employment with the Company for "good reason" (as such terms are
defined in the Employment Agreement between the Company and Optionee entered
into as of February 11, 2000), all of the options represented hereby shall
become immediately vested at said termination date. This Option may be exercised
as to all or any portion of the vested shares covered by this Option Grant at
any time, and shall expire on the earlier of ten years from the grant date, or
one year after cessation of the Executive's relationship with the Company in any
capacity, including service provided to the Company as an employee, officer,
director or consultant. The period of time during which the Option may be
exercised is referred to herein as the "Option Period."
3. NUMBER OF SHARES PURCHASABLE AT ANY ONE TIME. This Option may be
exercised only for at least 100 shares of Common Stock or a multiple thereof or
for the full number of shares for which the Option is then exercisable.
4. DEATH OF OPTIONEE. If Optionee dies during Optionee's employment with
the Company, this Option shall be exercisable only as to that portion
exercisable as of the date of death and within one year after Optionee's death,
or the last day of the Option Period, whichever is earlier, by the personal
representative or administrator of Optionee's estate, or by any trustee, heir,
legatee or beneficiary to whom Optionee's rights under this Option shall pass by
will or the laws of descent and distribution to the extent that Optionee was
entitled to exercise this Option at the time of Optionee's death.
5. RETIREMENT OF OPTIONEE. If Optionee's employment with the Company
terminates by reason of retirement, the Option shall be exercisable within the
one year period following Optionee's retirement as described above, but not
later than the last day of the Option Period, and then only to the extent to
which the Option was exercisable at the time of such termination of employment
by retirement. However, if Optionee dies within three months after termination
by retirement, the Option, to the extent it was exercisable at the time of
Optionee's death, shall thereafter be exercisable for one year after the date of
Optionee's death, but not later than the last day of the Option Period.
6. DISABILITY OF OPTIONEE. If Optionee becomes permanently and totally
disabled, and at the time of such disability Optionee is entitled to exercise
one or more installments under this Option, Optionee shall have the right to
exercise this Option within one year after such disability provided Optionee
exercises this Option within the Option Period and then only to the extent to
which this Option was exercisable at the time of such disability. For purposes
of this Section, an Optionee shall be considered to be totally and permanently
disabled if a qualified medical physician approved by the Company certifies to
the Company that such Optionee is unable to be gainfully employed by the Company
by reason of a diagnosed and determinable physical or mental impairment which
can be expected to result in death or has lasted and can be expected to last for
a continuous period of not less than 12 months.
7. NONTRANSFERABILITY OF OPTION. This Option may not be transferred by
Optionee otherwise than by will or the laws of descent and distribution. During
Optionee's lifetime, this Option shall be exercisable only by Optionee.
8. LEAVE OF ABSENCE. For purposes of this Option, (i) a leave of absence,
duly authorized in writing by the Company, for military service or sickness, or
for any other purpose approved by the Company, if the period of such leave does
not exceed 90 days, and (ii) a leave of absence in excess of 90 days, duly
authorized in writing by the Company, provided Optionee's right to reemployment
is guaranteed either by statute or by contract, shall not be deemed a
termination of employment.
9. CHANGES IN CAPITAL; CERTAIN REORGANIZATIONS. If the outstanding Common
Stock of the Company which is subject to this Option shall at any time be
changed or exchanged by declaration of a stock dividend, split-up, subdivision
or combination of shares, recapitalization, merger, consolidation or other
corporate reorganization in which the Company is the surviving corporation, the
number of and kind of shares subject to the Option and the Option Price shall be
appropriately and equitably adjusted so as to maintain the proportionate number
of shares without changing the aggregate option price. In the event of a
dissolution or liquidation of the Company, or a merger, consolidation, sale of
all or substantially all of its assets, or other corporate reorganization in
which the Company is not the surviving corporation, or in which the Company is
the surviving corporation but holders of Common Stock receive securities of
another corporation, this Option shall terminate as of the effective date of
such event, provided that immediately prior to such event, Optionee shall have
the right to exercise this Option as to all shares underlying this Option,
irrespective of the number of Options actually vested at the time.
10. MANNER OF EXERCISE.
(a) This Option may be exercised in whole or in part at any time and
from time to time within the Option Period, subject to the terms and conditions
contained herein, by the delivery of written notice of exercise to the Chief
Financial Officer of the Company, as required by subsection (d) of this Section,
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accompanied by (i) full payment, in cash or certified or bank check, payable to
the Company, or, (ii) if permitted by the Company's Board of Directors in its
sole discretion, shares of the Company's Common Stock having a fair market value
equal to the aggregate exercise price for the number of shares purchased which
the Optionee has held for at least six months prior to the time of exercise of
the Option.
(b) For purposes of this section, "Market Price" means the average of
the closing prices of 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 (including the OTC Bulletin Board ) 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 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 the shares are not so listed or traded on any principal domestic
securities exchange or quoted on Nasdaq, the Market Price shall be the fair
value thereof, as determined in good faith by the Board of Directors of the
Company.
(c) Certificates for the shares of Common Stock purchased upon
exercise of this Option shall be delivered by the Company to the Purchaser
within five (5) business days after the Exercise Date.
(d) The notice of exercise (i) shall state the election to exercise
the Option, (ii) shall state the number of shares in respect to which the Option
is being exercised, (iii) shall state Optionee's address, (iv) shall state
Optionee's social security number, (v) shall contain such representations and
agreements concerning Optionee's investment intent with respect to such shares
of Common Stock as shall be satisfactory to the Company's counsel, and (vi)
shall be signed by Optionee. As a further condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
(e) Unless this Option has expired or all of the purchase rights
represented hereby have been exercised, the Company shall, in addition to
certificates for Common Stock issued upon exercise of this Option, prepare upon
exercise of this Option, a new Option representing the rights formerly
represented by this Option that have not expired or been exercised. The Company
shall, within five (5) business days after the Exercise Date, deliver such new
Option to the Optionee.
11. AMENDMENT AND ADMINISTRATION. The Board of Directors shall have the
authority to interpret this Option, and generally to conduct and administer the
exercise of this Option and to make all determinations in connection herewith
which may be necessary or advisable, and all such actions of the Board shall be
final and conclusive for all purposes and binding upon Optionee.
12. MISCELLANEOUS. This Option shall inure to the benefit of and be binding
upon each successor of the Company. All obligations imposed upon and all rights
granted to the Optionee and all rights reserved by the Company under this Option
shall be binding upon and inure to the benefit of Optionee, Optionee's heirs,
personal representatives, administrators and successors. Unless the context
requires otherwise, words denoting the singular may be construed as denoting the
plural, and words of the plural may be construed as denoting the singular and
words of one gender my be construed as denoting such other gender as is
appropriate.
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IN WITNESS WHEREOF, this Option has been issued by the Company effective as
of the Date of Grant, which is February 15, 2000.
U.S. WIRELESS DATA, INC. Accepted by Optionee:
a Colorado corporation
By /s/ Dean M. Leavitt /s/ Charles I. Loene
------------------------------------- ----------------------------
Dean M. Leavitt Charles I. Leone
Chief Executive Officer
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