SUPPLEMENT TO SERIES B PREFERRED
SECURITIES PURCHASE AGREEMENT
This Supplement to Series B Preferred Stock Purchase Agreement is made
and entered into effective as of the date below, between U.S. Wireless Data,
Inc., a Colorado corporation (the "Company") and The Cuttyhunk Fund Limited and
Tonga Partners LP (the "Purchasers") in conjunction with the acquisition by
Purchasers of shares of the Company's Series B Cumulative Convertible Redeemable
Preferred Stock (the "Series B Preferred"), in exchange for certain accrued
interest and damages owing to Purchasers on the Company's 6% Convertible
Subordinated Debentures Due July 21, 2000 (the "6% Debentures") as more fully
described in that certain Waiver of Rights and First Amendment to Debenture
Agreement dated as of the date hereof (the "Debenture Amendment"). This
Agreement is entered into to set forth certain additional agreements between the
Company and the Purchasers.
In consideration of the acquisition of the Series B Preferred by the
Purchasers and the entry of the Debenture Amendment between the Company and the
Purchasers, and other good and valuable consideration, the Company and the
Purchasers hereby agree as follows:
1. Notwithstanding the acquisition of the Series B Preferred by the Purchasers
in exchange for (a) interest owing on the 6% Debentures through June 30, 1999,
and (b) damages owing to Purchasers on the 6% Debentures, all as described in
the Debenture Amendment, the Company agrees and acknowledges that the 6%
Debentures remain as obligations for money loaned to the Company and will not be
treated as an equity instrument by the Company.
2. The Company hereby acknowledges and agrees that the representations and
warranties of the Company being given to the Purchasers in conjunction with the
acquisition of the Series B Preferred Stock set forth in the Securities Purchase
Agreement relating thereto, shall be deemed representations and warranties of
the Company applicable to the 6% Debentures, made as of the date hereof, as if
the 6% Debentures were being purchased by Purchasers thereunder. Purchasers
acknowledge and affirm the representation and warranties contained in the
Securities Purchase Agreement as of the date hereof in connection with their
decision to retain their 6% Debentures.
3. The Company agrees that at the time of filing a registration statement under
the Securities Act of 1933 which includes the shares of Common Stock underlying
the 6% Debentures and the Common Stock Purchase Warrants issued to Purchasers
with the 6% Debentures (which shall be the same registration statement which
includes the shares of Common Stock underlying the Series B Preferred Stock),
such registration statement shall include for purposes of satisfying the
conversion rights of the 6% Debentures, at least that number of shares of Common
Stock equal to 150% of the number of shares issuable upon conversion of the 6%
Debentures as of the last trading date immediately preceding the date of filing
such registration statement together with the number of shares of Common Stock
issuable upon exercise of such Warrants.
Supplement to Series B Preferred
Securities Purchase Agreement
Page 2 of 3
4. The Company agrees that it will take no position inconsistent with an
original acquisition date of the 6% Debentures by Purchasers of July 23, 1998 in
calculating the commencement of Purchasers' holding periods for the 6%
Debentures under Rule 144 of the SEC's Rules and Regulation under the Securities
Act of 1933.
5. The Company acknowledges that Purchasers have advised it that they are not
affiliated in any manner with the other initial Purchaser of the Series B
Preferred, Bold Street LLC, a Cayman limited liability company, and the Company
acknowledges that it is not aware of any facts contrary to this assertion.
6. Notwithstanding Section 4.j in the Securities Purchase Agreement, Purchasers
acknowledge that they are not entitled to any warrants in conjunction with their
acquisition of Series B Preferred in exchange for the interest and damages owing
on the 6% Debentures.
7. The Company hereby agrees that the 6% Debentures currently held by Purchasers
shall be amended such that Purchasers shall have the benefit of any terms
contained in the Securities Purchase Agreement, the Registration Rights
Agreement or Certificate of Designation for the Series B Preferred. Purchasers
shall reasonably determine which terms they deem beneficial. Any such amendment
shall be subject to the review of the Company's independent accountants, and
should such accountants determine that any such amendment(s) determined by the
Purchasers (or the right granted hereby to Purchasers to determine the
applicability of such amendment(s)) would require a reclassification of the 6%
Debentures into other than a debt instrument of the Company, then no such
amendment shall be permitted and this clause shall be considered void ab-initio
as to any such right to amend the 6% Debentures or the rights related thereto.
8. The Company agrees that it will pay the legal fees incurred by Purchasers in
connection with the negotiation of the Debenture Amendment and the acquisition
of the Series B Preferred, in an amount of $9,775, to be paid from the proceeds
of the sale of the Series B Preferred, immediately following the initial closing
of the sale of the Series B Preferred and presentation of an invoice from The
Xxxxxxxxx Law Group, P.C., which has represented Purchasers in these
transactions.
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Supplement to Series B Preferred
Securities Purchase Agreement
Page 3 of 3
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of this ________ day of April, 1999.
U.S. Wireless Data, Inc.
By:
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Print Name:
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Title:
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Date:
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The Cuttyhunk Fund Limited
By:
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Print Name:
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Title:
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Date:
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Tonga Partners LP
By:
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Print Name:
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Title:
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Date:
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RBB Bank Aktiengesellschaft AG
By:
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Print Name:
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Title:
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Date:
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