WARRANT AND THE STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE THIS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH 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.
COMMON STOCK PURCHASE WARRANT
1. Issuance. In consideration of good and valuable consideration, the
receipt of which is hereby acknowledged by U.S. Wireless Data, Inc., a Colorado
corporation (the "Company"), RBB BANK or registered assigns (the "Holder") is
hereby granted the right to purchase at any time until 5:00 P.M., Pacific Coast
time, on July 6, 2004 (the "Expiration Date"), (22,500) fully paid and
nonassessable shares of the Company's Common Stock, no par value per share (the
"Common Stock") at an exercise price of $1.50 per share (the "Exercise Price")
subject to further adjustment as set forth in Section 6 hereof.
2. Exercise of Warrants. This Warrant is exercisable in whole or in part
for whole shares of the Company's Common Stock at the Exercise Price per share
of Common Stock payable hereunder, payable in cash or by certified or official
bank check. In lieu of paying cash to exercise this Warrant, the Holder may, by
designating a "cashless" exercise on the Notice of Exercise Form, acquire a
number of whole shares of the Company's Common Stock equal to (a) Exercise
Price, multiplied by (b) the number of shares of Common Stock purchasable under
the portion of the Warrant tendered to the Company, divided by (c) the Market
Value of the Company's Common Stock. Upon surrender of this Warrant Certificate
with the annexed Notice of Exercise Form duly executed, together with payment of
the Exercise Price for the shares of Common Stock purchased, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. For the purposes of this Section 2, "Market Value" shall be an
amount equal to the average closing bid price of a share of Common Stock for the
five (5) business days immediately preceding the Company's receipt of the Notice
of Exercise Form duly executed.
3. Reservation of Shares. The Company hereby agrees that at all times
during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrants. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) receipt of reasonably
satisfactory indemnification, and (in case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor and date and any such lost, stolen, destroyed or mutilated Warrant
shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
6. Adjustments to Exercise Terms.
If the Company at any time prior to the full execution of this Warrant
shall, by subdivision, combination, merger, spin-off, re-classification or like
capital adjustment of the securities, change any of the securities to which
purchase rights under this Warrant exist into the same or different number of
securities of any class or classes, this Warrant shall thereafter entitle the
Holder to acquire such number and kind of securities as would have been issuable
as a result of such change with respect to the securities acquirable immediately
prior to such transaction. If the securities acquirable upon exercise of this
Warrant are subdivided into a greater number of securities (including pursuant
to any stock dividend paid to all holders of such securities), or if such
securities are combined into a lesser number of securities, then the purchase
price for the securities acquirable upon exercise of this Warrant and the
securities acquirable pursuant to this Warrant shall be proportionately and
equitably adjusted.
7. Transfer to Comply with the Securities Act: No Registration Rights. This
Warrant has not been registered under the Securities Act of 1933, as amended
(the "Act") and has been issued to the Holder for investment and not with a view
to the distribution of either the Warrant or the Warrant Shares. Neither this
Warrant nor any of the Warrant Shares of any other security issued or issuable
upon exercise of this Warrant may be sold, transferred, pledged or hypothecated
in the absence of an effective registration statement under the Act and
applicable state securities laws relating to such security, unless the opinion
of counsel satisfactory to the Company, such registrations are not required
under the Act. Each certificate for the Warrant, the Warrant Shares and any
other security issued or issuable upon exercise of this Warrant shall contain a
legend on the face thereof, in form and substance satisfactory to counsel for
the Company, setting for the restrictions on transfer contained in this Section.
The holder is not being granted any rights to have the Warrant or the Warrant
Shares registered under the Act of any state securities laws.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed telexed or sent to facsimile transmission, or,
if mailed, two days after the date of deposit in the United States mails, as
follows:
(i) if to the Company, to:
U.S. Wireless Data, Inc.
2200 Powell Street, Suite 800
Emeryville, California 94608
ATTN: Robert Robichaud, Chief Financial Officer
Telecopier No.: (510) 596-2029
Telephone No.: (510) 5596-2025
(ii) If to the Holder, to such address and facsimile number as
appears in the records of the Company.
A party shall give notice to the other in accordance with this Section to change
the address, facsimile number or person to whom notices shall be given.
9. Supplements and Amendments: Whole Agreement. This Warrant may be amended
or supplemented only by an instrument in writing signed by the parties hereto.
This Warrant contains the full understanding of the parties hereto with respect
to the subject matter hereof and thereof and there are no representations,
warranties, agreements or understandings other than expressly contained herein
and therein.
10. Governing Law. This Warrant shall be deemed to be a contract made under
the laws of the State of Colorado and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
11. Descriptive Headings. Descriptive headings of the several Sections of
this Warrant are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
3
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
January 20, 2000.
U.S. WIRELESS DATA, INC.
By:
-------------------------------
DEAN M. LEAVITT
Chief Executive Officer
Attest:
- ---------------------------------
Name: Robert R. Robichaud
Chief Financial Officer