U.S. WIRELESS DATA, INC.
NOTE AND COMMON STOCK PURCHASE AGREEMENT
1. General. This Note and Common Stock Purchase Agreement sets forth the
terms under which the undersigned ("Investor") agrees to purchase a $250,000
principal amount, 10% Promissory Note (the "Note") of U.S. Wireless Data, Inc.,
a Colorado corporation (the "Company") due June 12, 1999 (the "Due Date"),
together with 50,000 shares no par value Common Stock of the Company (the
"Common Stock"). The shares will be issued as restricted securities and the
Company will include the shares in the Registration Statement to be filed for
the 6% Convertible Debentures and other share issuances.
By execution hereof, Investor acknowledges that Investor understands that
the Company is relying upon the accuracy of the representations and warranties
of Investor contained herein.
2. Subscription Amount and Payment. Investor tenders $250,000 in full
payment for theNote and Common Stock.
3. Company Need for Additional Financing; Investor's Right of First
Refusal.
a. Need for Additional Financing. Investor understands and agrees that
the Company is presently engaged in several negotiations aimed at raising
substantial additional equity financing in an amount of at least
$1,000,000, but may require additional bridge financing in the form of
Company debt in the immediate future, and prior to the time when the
Company is able to complete a more substantial equity or debt financing
(such intermediate funding being referred to hereafter as the "Bridge
Financing"). Investor agrees that the Company shall be entitled to seek and
obtain such Bridge Financing.
b. First Right of Refusal. Investor is hereby given a right of first
refusal to fund any such additional Bridge Financing. Upon receipt by the
Company of any bona fide proposal for such Bridge Financing from any
person, the Company shall provide a copy of the proposal and/or a summary
of the terms of such proposed financing to Investor, which shall have one
business day from receipt of such information to determine whether to
exercise its first right of refusal, and fund the Bridge Financing on the
same terms and conditions as have been offered by the other party. If
Investor rejects such offer, or fails to respond within the applicable
period, the Company shall be free to accept such proposal from the other
party. Any substantial change in the terms of such proposal by the other
party subsequent to a rejection by Investor and prior to funding shall
reactivate Investor's first right of refusal, which shall be presented to
Investor on the revised terms.
4. Prepayment of the Note. Investor understands that the Company has been
engaged in discussions with various parties, including Investor, regarding the
possible issuance by the Company of additional debt or equity securities (apart
from the Bridge Financing described in Section 4 above), including the possible
issuance of a Preferred Stock to be authorized and issued by the Company upon
final agreement as to the terms of such Preferred Stock. The Company and
Investor agree that at any time prior to the Due Date of the Note, the Note
shall be paid in full (as to all amounts of unpaid principal and interest then
owing) from the proceeds of the sale of any equity or debt securities of the
Company (including shares of Preferred Stock), provided the Company has received
gross proceeds in the minimum amount of U.S. One Million Dollars ($1,000,000)
from the sale of such equity or debt securities (but from which amount any
proceeds from a Bridge Financing shall be excluded).
5. Investor's Representations and Warranties. Investor represents, warrants
and covenants to the Company that:
a. Investor has carefully reviewed the information contained in the
Company's most recent Quarterly Report on Form 10-QSB for the fiscal
quarter ended December 31, 1998. Investor acknowledges Investor has
received, read, understood and become thoroughly familiar with the "Risk
Factors" section set forth therein, as well as the "Risk Factors" contained
in the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998. Investor has not relied on any information or statement not
contained in these financial reports. Investor understands that an
investment in the Company's securities is one of high risk and that no
person has been authorized to give any information or to make any statement
concerning the Company that in any way contradicts what is stated in the
financial reports.
b. Investor has had an adequate opportunity to discuss the Company's
business, management and financial affairs with the Company's management
and has received satisfactory responses to such inquiries.
c. By reason of Investor's business and financial experience or of
those persons Investor has retained to advise Investor with respect to
Investor's investment in the Company, Investor, together with Investor's
advisors, has the capacity to evaluate the merits and risks of the
prospective investment.
d. Investor has been informed that all documents, records and books
pertaining to the Company and this investment were at all times available
to Investor. Investor has utilized such access to Investor's satisfaction
for the purpose of obtaining information regarding the investment. All
documents, records and books pertaining to this investment requested by
Investor have been made available to Investor and the persons Investor has
retained to advise Investor with respect to this investment. Investor and
such persons have been supplied with such additional information concerning
this investment as they have requested.
e. To the extent Investor deemed necessary, Investor has consulted
with Investor's attorney and/or Investor's accountant regarding all aspects
of the proposed investment, including the tax aspects thereof, and said
attorney and/or accountant have reviewed and analyzed the Company's most
recent financial reports on Form 10-KSB and Form 10-QSB.
f. Investor is able to bear the economic risk of this investment and
could afford a complete loss of such investment.
g. Investor is the sole party in interest as to the investment and is
acquiring the Note and Common Stock for Investor's own account, for
investment only and not with a view toward the resale or distribution
thereof, unless and until the initial Common Stock is registered under
applicable federal and state securities law or an exemption from such
registration requirements is available for distribution of the shares.
h. Investor understands that neither the Note nor the shares of Common
Stock have been registered under the Securities Act of 1933 (the "Act") and
may not be resold unless registered or an exemption from such registration
is available. Investor agrees that Investor will not attempt to dispose of
the Note or, if applicable, the shares that may be issued upon conversion
of the Note, except in compliance with the Act.
i. Investor has the authority to purchase the Note and Common Stock
and to execute any other instruments or documents required to be executed
in connection with a purchase of the Note and Common Stock.
6. Indemnification. The Investor shall indemnify and hold harmless the
Company, the officers, directors, employees and/or agents of the Company from
and against any and all loss, damage, liability or expense, including costs and
reasonable attorneys' fees, to which they may be put or which they may incur by
reason of or in connection with any failure of the Investor's representations
and warranties to be fully true, correct, and complete or Investor's failure to
fulfill any of Investor's covenants or agreements under this Agreement.
7. Events of Default. The Note will be considered in default immediately
upon the happening of any of the following events:
a. Failure to pay any installment of principal and interest within ten
(10) days of its due date; or
b. the Company (I) admits in writing its inability to pay its debts
generally as they become due, (II) files a petition in bankruptcy or
petition to take advantage of any insolvency act, (III) makes an assignment
for the benefit of its creditors, (IV) consents to the appointment of a
receiver of itself or of the whole or any substantial part of its property,
(V) a petition in bankruptcy filed against it, has an order for relief
entered against it, (VI) files a petition or answer seeking reorganization
or arrangement under the federal bankruptcy laws or any state insolvency
law, or (VII) distributes any of its assets upon any dissolution, winding
up-or liquidation of the Company.
8. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado, excluding, however, so much of said
law as relates to conflict of laws and/or choice of law.
b. This Agreement contains the entire agreement between the parties
with respect to its subject matter. The provisions of this Agreement may
not be modified or waived except in writing signed by the party to be bound
by any which modification or waiver.
9. NASD Affiliation. Neither Investor nor any person affiliated with
Investor is a member of a broker-dealer licensed with the National Association
of Securities Dealers, Inc. ("NASD") nor is any such xxxxxx affiliated, directly
or indirectly, by ownership or otherwise, with any NASD member.
10. Investor's Status. The Investor represents and warrants that Investor
is an accredited investor because (please initial all that are applicable):
___ The Investor is a director or executive officer of the Company.
___ The Investor and Investor's spouse (if any) have an aggregate
net worth exceeding $1,000,000.
___ The Investor has had an individual income in excess of
$200,000 or joint income with Investor's spouse in excess of $300,000 in each of
the two most recent years and reasonably expects the same income in the current
year.
___ The Investor is an entity in which all of the equity
owners are accredited investors within the meaning of Rule 501(a) under the Act.
_X__ The Investor is a bank, savings and loan association,
broker or dealer, insurance company, investment company, business development
company, small business investment company, employee benefit plan, non-profit
organization, or trust meeting the requirements of Rule 501(a) under the Act.
IN WITNESS WHEREOF, Investor has executed this Note Purchase
Agreement the ______ day of _______, 1999.
RBB Bank as agent for clients
---------------------------------- ACCEPTED:
(Print Name)
/s/ Xxxxxxx Xxxxxxx
---------------------------------- U.S. WIRELESS DATA, INC.
(Signature) Xxxxxxx Xxxxxxx,
Managing Director US Equity
Social Security or Tax I.D. Number: /s/ Xxxxxx X. Xxxxxxxxx
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By: Xxxxxx X. Xxxxxxxxx, President
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Address: Date: March 12, 99
Burgring 16
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8010 Graz, Austia
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