ASSIGNMENT AGREEMENT
(WITH ESCROW PROVISIONS)
This Assignment Agreement is made and entered into effective
as of the 12th day of March, 1998, between U.S. Wireless Data, Inc., a Colorado
corporation ("USWD") and Xxxxxxx X. Xxxxxx, an individual ("Xxxxxx"), Tillicomb
International LDC, a Cayman Island company ("Tillicomb") and Ireland Xxxxxxxxx
Xxxxx & Xxxxxx, P.C. ("Escrow Agent").
RECITALS
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WHEREAS, Tillicomb is a Cayman company which is beneficially
owned solely by Xxxxxx and his immediate family which, as Xxxxxx'x assignee, is
the owner of a total of 397,684 shares of the no par value Common Stock of USWD
(the "Shares"), which are the subject of an agreement between USWD and Xxxxxx
dated as of October 5, 1995 (the "Original Agreement");
WHEREAS, pursuant to the Original Agreement, the Shares are
subject to a call option for the benefit of USWD which entitles USWD to purchase
the shares from Xxxxxx at any time prior to October 5, 1998 for $.25 per share
(the "Option");
WHEREAS, USWD desires to assign the Option to certain third
parties, and Xxxxxx and Tillicomb have agreed to any such assignments and to
cooperate with the exercise of the Option on the terms set forth herein;
WHEREAS, USWD, Xxxxxx and Tillicomb have agreed to utilize the
services of an escrow agent (the "Escrow Agent") to facilitate the transactions
to be completed hereunder and the Escrow Agent has agreed to provide its
services on the terms set forth herein;
NOW, THEREFORE, based on the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the parties, the parties hereby agree
as follows:
AGREEMENT
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1. Transfer of Shares to Tillicomb; Representations of Xxxxxx and Tillicomb.
Prior to the initial transaction described in paragraph 2 below, the Shares
shall be submitted for transfer to Tillicomb.
In connection with the transfer of the Shares to Tillicomb, Xxxxxx
represents to USWD that:
a. Tillicomb is beneficially owned solely by Xxxxxx and his
Assignment Agreement
(With Escrow Provisions)
immediate family; (b) Xxxxxx acquired the Shares in about September of 1994
and has been the beneficial owner of the Shares since that time; (c) he has
not been an affiliate of USWD for at least the preceding 90 days; (d)
Tillicomb has not been an affiliate of USWD for at least the preceding 90
days.
x. Xxxxxx and Tillicomb agree that the Shares shall remain subject to the
restrictions applicable to the Shares under the Original Agreement after
the Shares have transferred to Tillicomb. The restrictions applicable to
the Shares under the Original Agreement shall be removed only as set forth
in this Agreement.
2. Initial Transaction. The parties shall complete the following initial
transaction within thirty (30) days of the day this Agreement is signed by
Xxxxxx, USWD and Tillicomb (the "Initial Closing"). At the Initial Closing, the
following actions shall occur:
a. Tillicomb shall deliver 367,684 Shares (the "Escrow Shares") to the
Escrow Agent for deposit into the Escrow Account (as defined below). It is
understood and agreed that stock certificate No. 0617 representing the
397,684 Shares Xxxxxx owns has been lost, stolen, destroyed or misplaced,
and that the parties will cooperate in having a replacement stock
certificate issued to Xxxxxx without the payment of any indemnity bond or
other expense to Xxxxxx (other than a $520 charge payable to USWD's
Transfer Agent, American Securities Transfer & Trust, Inc., in connection
with issuing the replacement certificate). Xxxxxx agrees to execute and
deliver to USWD and AST a lost stock certificate affidavit, including
indemnification provisions running in favor of USWD and AST, their legal
representatives, successors and assigns, which will hold such persons
harmless from any and all liabilities, losses, damages, costs, charges,
counsel fees and other reasonable expenses of every nature and character
which they shall at any time sustain or incur by reason of any claim or
demand which may be made as a result of or arising out the inability of
Xxxxxx to submit Certificate No. 0617 for cancellation or the issuance of a
new certificate representing the Shares.
b. USWD shall deliver $25,000 by wire transfer of immediately available
federal funds to Tillicomb.
3. Release of Option as to Remaining Shares. Concurrently with the Initial
Closing, USWD shall release the Option as to the remaining 30,000 Shares (the
"Tillicomb Shares"). Thereafter, the Tillicomb Shares shall be the sole and
unencumbered property of Tillicomb and all rights of USWD relating to the
Tillicomb Shares under the Original Agreement or otherwise shall terminate.
Assignment Agreement
(With Escrow Provisions)
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4. Consent to Assignment of Option as to Escrow Shares; Payments of Option
Exercise Price to Tillicomb; Release of Shares by Escrow Agent.
x. Xxxxxx and Tillicomb hereby consent to the assignment of the Option by
USWD as to the Escrow Shares, or any portion thereof, to any person
designated by USWD (the "Assignee"); provided, that any partial assignment
of the Option (except the last assignment, which may be for any balance of
shares remaining subject to option) shall be for a minimum of at least
fifty thousand (50,000) Shares at any one time, and provided further, that
USWD shall take all reasonable steps to assure that any such assignments
comply in all respects with applicable state and federal securities laws.
USWD shall indemnify and hold Xxxxxx and Tillicomb harmless from and
against any and all liability, including reasonable attorneys' fees, to
which he becomes subject as a result of any failure of such transactions to
comply with such laws, including any amounts incurred by Xxxxxx and/or
Tillicomb as a result of any allegation, claim or investigation commenced
as a result of any alleged failure of such transactions to comply with
applicable securities laws.
b. Upon assignment of the Option as to any or all of the Escrow Shares by
USWD (an "Assigned Option"), USWD shall provide the Assignee with all
necessary information to allow the Assignee to exercise the Assigned Option
by making payment of $.25 per Share for each Share included in the Assigned
Option (the "Option Exercise Price") directly to Tillicomb (through the
Escrow Agent) for the Shares being purchased by the Assignee.
c. Upon receipt of the Option Exercise Price for an Assigned Option by the
Escrow Agent, as soon as the Escrow Agent has in its possession collected
funds, the Escrow Agent shall, within one business day after receipt of
such funds, pay such amount over to Tillicomb by wire transfer of
immediately available federal funds. Upon transmittal of such payment to
Tillicomb, the Escrow Agent shall immediately release the appropriate
number of Shares that are the subject of the Assigned Option to the
Assignee which has exercised the Assigned Option. For purposes of this
Agreement, the term "collected funds" shall mean all funds received by the
Escrow Agent which have cleared normal banking channels and are in the form
of cash.
d. All Escrow Shares shall be purchased and paid for by Assignees by no
later than October 5, 1998. Any Escrow Shares not purchased by exercise of
the Option by an Assignee by such date shall be purchased and paid for by
USWD at $.25 per share by the delivery of collected funds therefor to the
Escrow Agent by no later five business days thereafter. Any Escrow Shares
which have not been so purchased by the date five business days after
October 5, 1998 shall be returned to Tillicomb unencumbered by the Option
and any other restrictions on such Shares under the Original Agreement.
Assignment Agreement
(With Escrow Provisions)
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5. The Escrow Account and the Escrow Agent. Ireland Xxxxxxxxx Xxxxx & Xxxxxx,
P.C., is hereby appointed and agrees to serve as Escrow Agent hereunder, subject
to the following terms and conditions:
a. Establishment of Escrow Account. The escrow account (the "Escrow
Account") shall be established by the Escrow Agent as described in
paragraph 2, for the benefit of Tillicomb and USWD. The Escrow Account may
be a part of the general trust account of the Escrow Agent.
b. Records to be Maintained by the Escrow Agent. The Escrow Agent shall
keep complete and accurate records of all receipts and disbursements of
funds and Escrow Shares (hereafter "Property") to and from the Escrow
Account, including the names, addresses and other appropriate identifying
information as to all persons submitting monies to the Escrow Account, the
person to whom funds are delivered and a complete record of all
transactions involving the Escrow Shares. Such records shall be available
to USWD and Tillicomb immediately upon request.
c. Escrow Period. The escrow period (the "Escrow Period") shall begin on
the date set forth in paragraph 5a, above, and shall terminate upon the
earlier to occur of the following dates:
(1) The date upon which the Escrow Agent has paid Tillicomb funds
equal to $91,921.00 and has delivered or properly instructed USWD's
Transfer Agent for its Common Stock to deliver all of the Escrow
Shares deposited into the Escrow Account to the person(s) entitled to
receive such Shares as a result of the exercise of Assigned Options as
described in paragraph 4c, and/or the exercise of the Option by USWD
pursuant to paragraph 4d, above; or
(2) The date upon which the Escrow Agent has returned to Tillicomb any
Escrow Shares as to which Assigned Options or the Option has not been
exercised, pursuant to the provisions of paragraphs 4c and 4d, above.
d. Payment of Interest. The Escrow Account shall be non-interest bearing.
As a result, all amounts deposited therein shall be paid to the person
entitled thereto without any interest. Neither shall any deductions be made
as to any amounts to be paid to any person entitled to receive funds from
the Escrow Account.
e. Collection Procedure. The Escrow Agent is hereby authorized to forward
for collection any check received as payment hereunder and, upon collection
of the proceeds of each check, deposit the collected proceeds in the Escrow
Account. As an alternative, the Escrow Agent may telephone the bank on
which the check is drawn to confirm that the check has been paid. Any check
returned unpaid to the Escrow Agent shall be Assignment Agreement (With
Escrow Provisions)
-4-
returned to the person that submitted the check. In such cases, the Escrow
Agent will promptly notify USWD of such return.
f. Compensation of Escrow Agent. USWD shall pay the Escrow Agent any and
all fees for its services hereunder as agreed between USWD and the Escrow
Agent. All ordinary expenses of the Escrow Agent, including any bank or
transfer charges, shall be reimbursed to the Escrow Agent by USWD.
g. Successor Escrow Agents. The Escrow Agent, or any successor Escrow
Agent, may resign at any time by giving notice in writing to each of the
parties and to any person from whom funds are held in the Escrow Account.
Escrow Agent shall be discharged from its duties under this Escrow
Agreement on the first to occur of (i) the appointment of a successor
Escrow Agent as provided in this paragraph and the transfer of all Escrow
Funds to such successor escrow agent, or (ii) the expiration of thirty (30)
calendar days after such notice is given. Any successor Escrow Agent shall
deliver to each of the parties and any subscriber for whom funds are held
in the Escrow Account, a written instrument accepting appointment under
this Agreement, and thereupon it shall succeed to all the rights and duties
of the Escrow Agent hereunder and shall be entitled to receive, in its
capacity as Escrow Agent, possession of the Property in the Escrow Account.
In such event, the parties shall deliver to the former Escrow Agent a
release executed by each of them, releasing such Escrow Agent from its
obligations hereunder.
h. Indemnification. In the event the Escrow Agent becomes involved in any
suit, litigation or other investigative or legal proceeding in connection
with this Agreement, or its duties hereunder, the Escrow Account or any
matter relating hereto or thereto, USWD agrees to indemnify and hold the
Escrow Agent harmless from all loss, cost, damage, expense, liability, fees
and expenses (including attorneys' fees and expenses) suffered or incurred
by the Escrow Agent as a result thereof, except any such loss, cost,
damage, expense, or liability that arises as a result of the Escrow Agent's
gross negligence or willful misconduct.
i. Acting on Notices. The Escrow Agent shall be protected in acting on any
written notice, request, waiver, consent, certificate, receipt,
authorization, power of attorney, or other paper or document that the
Escrow Agent believes to be genuine received from USWD and Tillicomb or an
authorized agent of both such persons. Upon notice to the Escrow Agent from
any person which requests that some action be taken with respect to the
return, payment or release of funds or property from the Escrow Account,
the Escrow Agent shall notify all parties to this Agreement. Thereafter,
the Escrow Agent shall not take any such requested action unless approved
in writing by the parties or authorized by a court of competent
jurisdiction.
j. Standard of Care. The Escrow Agent shall not be liable for anything that
it may do or refrain from doing in connection herewith, provided it acts in
good faith and is not grossly negligent.
k. Consultation with Counsel. The Escrow Agent may consult with legal
counsel in the event of any dispute or question as to the construction of
any of the provisions of this Agreement or Escrow Agent's duties hereunder,
and shall incur no liability
Assignment Agreement
(With Escrow Provisions)
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and shall be fully protected in acting in accordance with the opinion and
instructions of such counsel. The parties agree that the nonprevailing
party as between USWD, Xxxxxx and Tillicomb shall be liable for the payment
of any attorneys' fees reasonably incurred by Escrow Agent in connection
with such consultation or representation in any proceeding.
l. Disagreements. In the event of any disagreement involving the parties
resulting in adverse clams or demands being made in connection with the
Escrow Account or any Property, or in the event the Escrow Agent, in good
faith, shall be in doubt as to what action it should take hereunder, the
Escrow Agent may, at its option and in its sole discretion, (i) interplead
the Property into a court of competent jurisdiction, and/or (ii) refuse to
take any other action hereunder, so long as such disagreement continues or
such doubt exists, and in such event, the Escrow Agent shall not be or
become liable in any way or to any person for its failure or refusal to
act. The Escrow Agent shall be entitled to continue to refrain from acting
until (a) the rights of all interested parties or persons (including any
Option assignee) shall have been fully and finally adjudicated by a court
of competent jurisdiction, or (b) all differences shall have been adjusted
and all doubt resolved by agreement between the parties, and (c) the Escrow
Agent shall have been notified thereof by a written document signed by the
parties or persons interested in the outcome of such dispute. Should a xxxx
of interpleader be instituted, or should Escrow Agent become involved in
litigation in any manner whatsoever on account of this Agreement, the
Escrow Account or the terms or performance hereof, USWD, Xxxxxx and
Tillicomb hereby bind and obligate themselves, jointly and severally, and
their respective heirs, executors, administrators, successors, assigns and
legal representatives, that the non-prevailing party as between them will
pay the reasonable attorneys' fees incurred by Escrow Agent, and any other
disbursements, expenses, losses, costs, and damages in connection with and
resulting from such proceeding or litigation.
m. Discharge of Obligations. The Escrow Agent, upon transferring any and
all funds to Tillicomb and by taking all actions necessary to cause the
Escrow Shares to be properly delivered to the person(s) entitled thereto
from the Escrow Account in accordance with the terms of this Agreement, or
upon interpleading the Property in accordance with paragraph 4l hereof,
shall be discharged from any further obligation hereunder.
6. Notices. Any notices permitted or required to be given under the terms
of this Agreement shall be in writing and may be served by certified mail,
postage prepaid, return receipt requested, and addressed to the person or entity
to be notified at the appropriate address specified below, or by delivering or
causing to be delivered any such notice to the person or entity, or by facsimile
transmission, addressed to the person or entity to be noticed at said address,
provided a copy is placed in the certified mail, postage prepaid, return receipt
requested, on the same date as sent by facsimile. Any notice given in any
authorized manner shall be effective when actually received, or, if such notice
was sent only by certified mail, on the fifth day after it was deposited into
the custody of the United States
Assignment Agreement
(With Escrow Provisions)
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Postal Service, whether actually received by
the addressee or not. Addresses may be changed by notice given in the manner
provided in this paragraph 6.
U.S. WIRELESS DATA, INC.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Ireland Xxxxxxxxx Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXXX X. XXXXXX
c/o Mail Boxes, Etc.
103 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, X.X.
Xxxxxx VON 1B4
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx & Lardner
Firstar Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Assignment Agreement
(With Escrow Provisions)
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TILLICOMB INTERNATIONAL, LDC
c/o Royal Bank of Canada Trust Company (Cayman)
X.X. Xxx 0000
Xxxxxx Xxxx
Xxxxx Xxxxxx, XXX
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ESCROW AGENT
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. Effect of Agreement. This Agreement shall be binding on, inure to the
benefit of, and be enforceable by and against the parties and their respective
heirs, executors, administrators, successors, assigns and legal representatives.
8. Captions. The paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. Choice of Law. This Agreement shall be interpreted and construed in
accordance with, and shall be governed by, the laws of the State of Colorado and
the laws of the United States applicable in Colorado, without regard to the
choice of law rules of such State.
10. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be decreed an original, but all of which together shall
constitute one and the same instrument.
11. Waiver. Any waiver to be enforceable must be in writing and executed by a
person authorized to execute such a waiver. No waiver by any party of any
condition, or of the breach of any term, provision, or covenant contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such condition or the breach of any other
term, provision, or covenant.
Assignment Agreement
(With Escrow Provisions)
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IN WITNESS WHEREOF, this Escrow Agreement has been executed by
the parties effective as of the date set forth above.
U.S. WIRELESS DATA, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Print Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Secretary & CFO
Date of Execution: March 12, 1998
XXXXXXX X. XXXXXX /s/Xxxxxxx X. Xxxxxx
---------------------
Date of Execution: March 12, 1998
TILLICOMB INTERNATIONAL, LDC
By: /s/Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxx
--------------------- ---------------
Print Name:Xxxxxxx X. Xxxxxx Xxxxx Xxxxx
Title: Director Director
Date of Execution: 12 March 1998
ESCROW AGENT
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
By: /s/ Xxxx X. Xxxxx
---------------------
Print Name:Xxxx X. Xxxxx
Title: Vice President
Date of Execution: March 17, 1998
Assignment Agreement
(With Escrow Provisions)
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