SECURITIES EXCHANGE AGREEMENT
EXHIBIT
99.3
THIS
SECURITIES EXCHANGE AGREEMENT, dated as of June ___, 2008 (this “Agreement”), is entered into
by and between nFinanSe Inc., a Nevada corporation (the “Company”), and
_______________________ (the “Securityholder”).
RECITALS
WHEREAS,
the Securityholder purchased __________ shares (the “Original Shares”) of the
Company’s common stock, $0.001 par value per share (“Common Stock”), and a warrant
to purchase up to __________ shares of Common Stock at an exercise price of
$3.25 per share (the “Original Warrant” and, together with
the Original Shares, the “Original Securities”) pursuant
to that certain Securities Purchase Agreement, dated as of ____________ ___,
2008, by and between the Company and the Securityholder (the “Original Purchase
Agreement”);
WHEREAS,
pursuant to Section 8 of the Original Purchase Agreement, the Securityholder
desires to exchange the Original Shares for:
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·
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pursuant
to the provisions of Section 1.2 below, (i) __________ shares of Common
Stock or (ii) ________ shares of Series C Convertible Preferred Stock,
$0.001 par value per share (“Series C Stock,” the
rights and preferences of which are as provided in that certain
Certificate of Designations, Rights and Preferences attached hereto as
Exhibit
A) (collectively, the “Exchange Shares”),
and
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the
Original Warrant for
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·
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a
warrant to purchase up to __________ shares of Common Stock at an exercise
price of $2.30 per share (the “Exchange Warrant” and,
together with the Exchange Shares, the “Exchange
Securities”);
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WHEREAS,
this Agreement is one of a series of securities exchange agreements (the “Security Exchange Agreements”)
by which all of the Original Shares and Original Warrants purchased between
March 21, 2008 and May 16, 2008 are being exchanged for an aggregate of
1,400,000 Exchange Shares and Exchange Warrants to purchase up to 700,000 shares
of Common Stock; and
WHEREAS,
simultaneously with the execution of and consummation of those transactions
contemplated by the Securities Exchange Agreements, the Company has entered into
a series of securities purchase agreements (the “Securities Purchase
Agreements”), pursuant to which the Company will sell and issue up to (i)
1,600,000 shares of Common Stock, (ii) 4,100,000 shares of Series C Stock, and
(iii) warrants to purchase 2,850,000 shares of Common Stock at an exercise price
of $2.30 per share.
NOW,
THEREFORE, in consideration of the premises, and of mutual covenants contained
herein and the mutual benefits to be derived therefrom, the Securityholder and
the Company agree as follows:
SECTION
1
EXCHANGE
1.1 Exchange. Each
of the Company and the Securityholder hereby agree to exchange the Original
Shares for the Exchange Shares and the Original Warrant for the Exchange Warrant
(the “Exchange”) and to
take all actions necessary to consummate the Exchange.
1.2 Exchange
Shares. In the event that the Securityholder (together with
its affiliates) would, as a result of the Exchange, beneficially own in excess
of 750,000 shares
of Common Stock (the “Common
Stock Limitation Amount”), then any Exchange Shares issued pursuant to
this Agreement in excess of the Common Stock Limitation Amount shall be shares
of Series C Stock (the “Exchange Preferred
Shares”).
1.3. Cancellation
and Issuance. Upon execution of this Agreement by the parties,
the Exchange shall be effective, the certificates representing the Original
Shares and the Original Warrant will be deemed cancelled and the Exchange Shares
and the Exchange Warrant shall be deemed issued. The Company shall
execute and deliver to the Securityholder certificates representing the Exchange
Shares (or certificates representing such additional shares of Common Stock that
would constitute the Exchange Shares) and an executed copy of the Exchange
Warrant.
1.4. Closing. The
closing (the “Closing”)
of the Exchange shall occur upon execution of this Agreement (the “Closing Date”).
SECTION
2
REPRESENTATIONS AND
WARRANTIES BY THE COMPANY
The
Company represents and warrants to the Securityholder that:
2.1 Organization,
Good Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada.
2.2 Valid
Issuance. Upon issuance and delivery in the manner herein
described, the Exchange Shares will be duly authorized, validly issued, fully
paid and non-assessable. All shares of Common Stock which may be
issued upon the conversion of the Exchange Preferred Shares (the “Preferred Conversion Shares”),
if any, and the exercise of the Exchange Warrant (collectively with the
Preferred Conversion Shares and as converted or exercised, the “Conversion Shares”), upon
issuance in accordance with the respective terms of the Exchange Preferred
Shares and the Exchange Warrant, will be duly authorized, validly issued, fully
paid and non-assessable.
2.3 Authorized
Shares. The
Company shall take all such action as may be required to ensure that the Company
shall at all times have authorized and reserved a sufficient number of shares of
Common Stock to provide for the (i) conversion of the Exchange Preferred Shares,
if any, into shares of Common Stock, and (ii) the exercise of the Exchange
Warrant for shares of Common Stock.
2.4 Authority
Relative to this Agreement. The execution, delivery and
performance of, and compliance with, this Agreement, the issuance of the
Exchange Securities in exchange for the Original Securities and the issuance of
the Conversion Shares have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement and the Exchange Warrants
are valid and binding agreements of the Company and are enforceable in
accordance with their terms.
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Page 2
SECTION
3
REPRESENTATIONS AND
WARRANTIES BY THE SECURITYHOLDER
The
Securityholder hereby represents and warrants to the Company that:
3.1 Authority
Relative to this Agreement. The execution, delivery and
performance of, and compliance with, this Agreement by the Securityholder and
the terms of the Exchange have been duly authorized by all necessary action on
the part of the Securityholder, and this Agreement is a valid and binding
agreement of the Securityholder, enforceable in accordance with its
terms.
3.2 Investment
Intent. The Exchange Securities and any Conversion Shares are
being acquired for the Securityholder’s own respective account and not with the
view to, or for resale in connection with, any distribution other than resales
made in compliance with the Securities Act of 1933, as amended (the “Securities
Act”). The Securityholder understands and agrees that the
Exchange Securities and any Conversion Shares are being offered and will be sold
in transactions in compliance with or exempt from the registration requirements
of the Securities Act and, as a result, such Exchange Securities and any
Conversion Shares may only be transferred if such securities are registered
under the Securities Act or if the transfer is exempt from
registration.
3.3 Ownership. The
Securityholder owns the Original Securities free and clear of any mortgage,
lien, pledge, charge, security interest, encumbrance, conditional sales
contract, transfer restriction, right of first refusal, voting trust agreement,
preemptive right, or other adverse claim, defect of title, limitation or
restriction of any type or nature whatsoever.
3.4 Investment
Experience and Qualification as an Investor.
(a) The
Securityholder has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company so that
it is capable of evaluating the merits and risks of its investment in the
Company and has the capacity to protect its own interests.
(b) The
Securityholder is an “accredited investor” within the meaning of Regulation D,
Rule 501(a), promulgated by the Securities and Exchange Commission (the “SEC”).
3.5 Speculative
Nature of Investment. Without intending to limit any of the
warranties of the Company set forth herein in any manner, the Securityholder
acknowledges that its investment in the Company is highly speculative and
entails a substantial degree of risk and the Securityholder is in a position to
lose the entire amount of such investment.
3.6 Access to
Data. The Securityholder has had an opportunity to discuss the
Company’s business, management and financial affairs with the Company’s
management.
3.7 Access to
Counsel. The Securityholder has had full opportunity to seek
the advice of independent counsel respecting the Exchange and the tax risks and
implications thereof.
3.8 Legends. The
Securityholder acknowledges and agrees that, subject to the provisions of
Section 4 below:
(a) the
certificates and documents representing the Exchange Securities and any
Conversion Shares shall have the following (or substantially equivalent) legend
on the face or reverse side thereof:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. THE
SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE COMPANY, TO THE
EFFECT THAT THE PROPOSED SALE, TRANSFER OR DISPOSITION MAY BE AFFECTED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT.
EX 99.3 -
Page 3
Any stock
certificate or document issued at any time in exchange or substitution for any
certificate or document bearing such legend shall also bear such (or
substantially equivalent) legend unless, in the opinion of counsel for the
Company, the securities represented thereby need no longer be subject to
restrictions pursuant to the Securities Act or applicable state securities laws;
and
SECTION
4
REGISTRATION
RIGHTS
4.1 Registration
of the Conversion Shares; Compliance with the Securities Act.
The
Company shall:
(a) upon
request from the Securityholder and subject to receipt of necessary information
from the Securityholder after prompt request from the Company to the
Securityholder to provide such information, prepare and file with the SEC,
within 90 days of such request, a registration statement on such form that is
then available to the Company (the “Registration Statement”) to
enable the resale of the Exchange Shares and the Conversion Shares
(collectively, “Registrable
Shares”) by the Securityholder from time to time on the OTC Bulletin
Board or in privately-negotiated transactions or through the facilities of any
securities exchange or securities trading platform through which the Common
Stock is traded, quoted or otherwise included for offer or sale;
(b) use
its commercially reasonable efforts, subject to receipt of necessary information
from the Securityholder after prompt request from the Company to the
Securityholder to provide such information, to cause the Registration Statement
to become effective;
(c) use
its commercially reasonable efforts to prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
current, effective and free from any material misstatement or omission to state
a material fact for a period not exceeding, the earlier of (i) the second
anniversary of the Closing Date, (ii) the date on which the Securityholder may
sell all of its Registrable Shares without restriction by the volume limitations
of Rule 144(e) of the Securities Act, or (iii) such time as all of its
Registrable Shares have been sold pursuant to a registration
statement;
(d) furnish
(which may be furnished electronically) to the Securityholder with respect to
Registrable Shares registered under the Registration Statement such number of
copies of the Registration Statement, prospectuses and preliminary prospectuses
in conformity with the requirements of the Securities Act and such other
documents as the Securityholder may reasonably request, in order to facilitate
the public sale or other disposition of all or any of the Registrable Shares by
the Securityholder; provided, however, that the obligation of the Company to
deliver copies of prospectuses or preliminary prospectuses to the Securityholder
shall be subject to the receipt by the Company of reasonable assurances from the
Securityholder that the Securityholder will comply with the applicable
provisions of the Securities Act and of such other securities or blue sky laws
as may be applicable in connection with any use of such prospectuses or
preliminary prospectuses;
(e) file
documents required of the Company for normal blue sky clearance in states
specified in writing by the Securityholder and use its commercially reasonable
efforts to maintain such blue sky qualifications during the period the Company
is required to maintain the effectiveness of the Registration Statement pursuant
to Section 4.1(c); provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction in
which it is not now so qualified or has not so consented;
(f) bear
all expenses in connection with the procedures in paragraph (a) through (e) of
this Section 4.1 and the registration of the Registrable Shares pursuant to the
Registration Statement except with respect to any legal or attorney fees
incurred by any of the Securityholders in connection with the Registration
Statement and any amendments thereto, the Company shall be required to bear the
fees and expenses of only one such legal counsel for all of the Securityholders
and the amount of the fees and expenses for which the Company is responsible
shall not exceed $10,000; and
(g) advise
the Securityholder (which advisement may occur electronically), promptly after
it shall receive notice or obtain knowledge of the issuance of any stop order by
the SEC delaying or suspending the effectiveness of the Registration Statement
or of the initiation or threat of any proceeding for that purpose; and it will
promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal at the earliest possible moment if such
stop order should be issued.
4.2 Other
Registration Statements. The
Securityholder acknowledges that the Company may include on the Registration
Statement; shares of common stock of the Company for resale by certain other
stockholders of the Company, and that the Company may file a subsequent
registration statement for the resale of shares of common stock by certain other
stockholder of the Company. Until such time as the Company has
included the Securityholder’s Registrable Securities in a Registration
Statement, if the Company determines to file a subsequent registration statement
under the Securities Act, in each such instance, the Company shall give the
Securityholder notice of its plans to file such registration statement no less
than 5 days and no more than 60 days prior to the filing thereof, shall afford
the Securityholder the opportunity to have any of its Registrable Securities
registered for resale pursuant to such registration statement and, upon the
request of the Securityholder by notice to the Company, shall include in such
registration statement such of the Securityholder’s Registrable Securities as
the Securityholder so requests be so included therein. For purposes
of this Agreement, the all references to the term “Registration Statement” shall
include each of such registration statements which purport to register
Registrable Securities of the Securityholder.
EX 99.3 -
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SECTION
5
TRANSFER OF
SHARES
5.1 Transfer
After Registration; Suspension.
(a) The
Securityholder agrees that it will not effect any disposition of the Registrable
Shares or its right to purchase the Registrable Shares that would constitute a
sale within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 4.1 and as described below or as
otherwise permitted by law, and that it will promptly notify the Company of any
changes in the information set forth in the Registration Statement regarding the
Securityholder or its plan of distribution.
(b) Except
in the event that paragraph (c) below applies, the Company shall (i) if deemed
necessary by the Company, use commercially reasonable efforts to prepare and
file from time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Registrable Shares being
sold thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; (ii) provide the Securityholder (which may
occur electronically) upon its request copies of any documents filed pursuant to
Section 5.1(b)(i); and (iii) inform each Securityholder that the Company has
complied with its obligations in Section 5.1(b)(i) (or that, if the Company has
filed a post-effective amendment to the Registration Statement which has not yet
been declared effective, the Company will notify the Securityholder to that
effect, will use its commercially reasonable efforts to secure the effectiveness
of such post-effective amendment as promptly as possible and will promptly
notify the Securityholder when the amendment has become effective).
(c) Subject
to paragraph (d) below, in the event (i) of any request by the SEC or any other
federal or state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to a Registration
Statement or related prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (iv) of any event or circumstance which, upon the advice of its
counsel, necessitates the making of any changes in the Registration Statement or
prospectus, or any document incorporated or deemed to be incorporated therein by
reference, so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; then the Company shall deliver a certificate in writing (which may
be delivered electronically) to the Securityholder (the “Suspension Notice”) to the
effect of the foregoing and, upon receipt of such Suspension Notice, the
Securityholder will refrain from selling any Registrable Shares pursuant to the
Registration Statement (a “Suspension”) until the
Securityholder’s receipt of copies of a supplemented or amended prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such prospectus. In the event of any Suspension,
the Company will use its commercially reasonable efforts to cause the use of the
prospectus so suspended to be resumed as soon as reasonably practicable after
the delivery of a Suspension Notice to the Securityholder.
(d) Provided
that a Suspension is not then in effect, the Securityholder may sell Registrable
Shares under the Registration Statement, provided that it arranges for delivery
of a current prospectus to the transferee of such Registrable Shares to the
extent required by the Securities Act and the rules and regulations
thereunder.
(f) In
the event of a sale of Registrable Shares by the Securityholder pursuant to the
Registration Statement, the Securityholder must also deliver to the Company’s
transfer agent, with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit
B, and its stock certificate, so that the Registrable Shares may be
properly transferred.
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SECTION
6
INDEMNIFICATION
6.1 Definitions.
For
the purpose of this Section 6:
(a) the
term “Selling
Stockholder” shall include the Securityholder and any affiliate of such
Securityholder;
(b) the
term “Registration
Statement” shall include the prospectus in the form first filed with the
SEC pursuant to Rule 424(b) of the Securities Act or filed as part of the
Registration Statement at the time of effectiveness if no Rule 424(b) filing is
required, and any exhibit, supplement or amendment included in or relating to
the Registration Statement referred to in Section 4.1; and
(c) the
term “untrue statement”
shall include any untrue statement or alleged untrue statement, or any omission
or alleged omission to state in the Registration Statement a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
6.2 Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Selling Stockholder from and
against any losses, claims, damages or liabilities to which such Selling
Stockholder may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) any failure by the Company
to comply with the covenants and agreements contained in this Agreement, or (ii)
any untrue statement of a material fact contained in the Registration Statement
as amended at the time of effectiveness or any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse such Selling Stockholder for any
reasonable and documented legal expenses and any other actual, accountable
out-of-pocket documented expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim, or
preparing to defend any such action, proceeding or claim, provided, however,
that the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement made in such Registration Statement or any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Stockholder specifically for use
in preparation of the Registration Statement or the failure of such Selling
Stockholder to comply with its covenants and agreements contained in this
Agreement. The Company shall reimburse each Selling Stockholder for
the amounts provided for herein within a reasonable period of time after demand
thereof.
(b) The
Securityholder agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, (i) any failure
by the Securityholder to comply with the covenants and agreements contained in
this Agreement, or (ii) any untrue statement of a material fact contained in the
Registration Statement or any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading if such
untrue statement or omission was made in reliance upon and in conformity with
written information furnished by or on behalf of the Securityholder specifically
for use in preparation of the Registration Statement, and the Securityholder
will reimburse the Company (or such officer, director or controlling person), as
the case may be, for any reasonable and documented legal expenses or other
actual, accountable out-of-pocket documented expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim.
EX 99.3 -
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(c) Promptly
after receipt by any indemnified person of a notice of a claim or the beginning
of any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this Section 6, such indemnified person shall
notify the indemnifying person in writing of such claim or of the commencement
of such action, but the omission to so notify the indemnifying person will not
relieve it from any liability which it may have to any indemnified person under
this Section 6 (except to the extent that such omission materially and adversely
affects the indemnifying person’s ability to defend such action) or from any
liability otherwise than under this Section 6. Subject to the
provisions hereinafter stated, in case any such action shall be brought against
an indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall elect by written notice delivered to
the indemnified person promptly after receiving the aforesaid notice from such
indemnified person, shall be entitled to assume the defense
thereof. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof, provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) for all indemnified
parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement; provided that such
consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If
the indemnification provided for in this Section 6 is unavailable to or
insufficient to hold harmless an indemnified person under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
person shall contribute to the amount paid or payable by such indemnified person
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and each of the Securityholders on the
other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in the
case of an untrue statement, whether the untrue statement relates to information
supplied by the Company on the one hand or the Securityholder or other Selling
Stockholder on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement. The Company and the Securityholder agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Securityholder and other Selling
Stockholders were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable
by an indemnified person as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
subsection (d), the Securityholder shall not be required to contribute any
amount in excess of the amount by which the net amount received by the
Securityholder from the sale of the Registrable Shares to which such loss
relates exceeds the amount of any damages which such Securityholder has
otherwise been required to pay by reason of such untrue statement. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Securityholder’s obligations in this subsection to contribute shall be in
proportion to its sale of Registrable Shares to which such loss relates and
shall not be joint with any other Selling Stockholders.
(e) The
Securityholder hereby acknowledges that it is a sophisticated business person
who was represented by counsel during the negotiations regarding the provisions
hereof including, without limitation, the provisions of this Section 6.2, and is
fully informed regarding said provisions. The Securityholder further
acknowledges that the provisions of this Section 6.2 fairly allocate the risks
involved in the Offering. The Securityholder and the Company are
advised that federal or state public policy as interpreted by the courts in
certain jurisdictions may be contrary to certain of the provisions of this
Section 6.2, and the Securityholder and the Company hereto hereby expressly
waive and relinquish any right or ability to assert such public policy as a
defense to a claim under this Section 6.2 and further agree not to attempt to
assert any such defense.
6.3 Termination
of Conditions and Obligations. The conditions precedent
imposed by Section 4 or Section 5 upon the transferability of the Registrable
Shares shall cease and terminate as to any particular number of the Registrable
Shares when such Registrable Shares shall have been effectively registered under
the Securities Act and sold or otherwise disposed of in accordance with the
intended method of disposition set forth in the Registration Shares covering
such Registrable Shares or at such time as an opinion of counsel reasonably
satisfactory to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the Securities
Act.
6.4 Information
Available. So long as the Registration Statement is effective
covering the resale of Registrable Shares owned by the Securityholder, the
Company will furnish to the Securityholder:
(a) as
soon as practicable after it is available, one copy of (i) its Annual Report to
Stockholders (which Annual Report shall contain financial statements audited in
accordance with generally accepted accounting principles by a national firm of
certified public accountants), (ii) its Annual Report on Form 10-K and (iii) its
Quarterly Reports on Form 10-Q (the foregoing, in each case, excluding
exhibits);
EX 99.3 -
Page 7
(b) upon
the reasonable request of the Investor, an adequate number of copies of the
prospectuses to supply to any other party requiring such prospectuses;
and
(c) if
agreed to by Securityholder on the signature page to this Agreement, the
documents required to be delivered by the Company pursuant to this Agreement,
except for the prospectus or preliminary prospectus required to be delivered
pursuant to Section 4.1(d) herein, shall be delivered to the Investor in
electronic form to the e-mail address provided by the Securityholder on the
signature page of the Securities Exchange Agreement.
SECTION
7
MISCELLANEOUS
PROVISIONS
7.1 Governing
Law. This Agreement shall be governed by the laws of the State
of Florida as to all matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
7.2 Notice. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within the United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, by facsimile or e-mail (if agreed to by the
Securityholder), or (B) if delivered from outside the United States, by
international express courier, facsimile or e-mail (if agreed to by the
Securityholder), and shall be deemed given (i) if delivered by first-class
registered or certified mail, five business days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one business day after so
mailed, (iii) if delivered by International Federal Express, two business days
after so mailed, or (iv) if delivered by facsimile or e-mail, upon electronic
confirmation of receipt and shall be delivered as addressed as
follows:
(a) if
to the Company, to:
0000
Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX
00000
Attn: Xxxxxxx
X. Xxxxxxxx, Chief Financial Officer
(b) with
a copy to:
Xxxxxx,
Xxxxx & Bockius LLP
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
EX 99.3 -
Page 8
(c) if
to the Securityholder, at its mail or e-mail address on the signature
pagehereto,or at such other address or addresses as may have been furnished
tothe Company in writing.
7.3 Counterparts. This
Agreement may be executed in counterparts, including facsimile counterparts,
each of which shall be deemed an original, but all of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.4 Entire
Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such transactions.
7.5 Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Securityholder; provided, however, the
provisions of Section 4 may not be amended without the prior written consent of
at least a majority in interest of the Registrable Shares.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
EX 99.3 -
Page 9
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement or have caused this Agreement to be
duly executed on their respective behalf by their respective officers thereunto
duly authorized, as of the day and year first above written.
|
|
SECURITYHOLDER
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||||
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By:
|
By:
|
||||
|
Name:
|
Name:
|
||||
|
Title:
|
Title:
|
||||
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Provide Notices
to:
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|||||
|
Address:
|
|||||
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Email
Address:
|
|||||
EX 99.3 -
Page 10
Exhibit
A
CERTIFICATE
OF DESIGNATIONS, RIGHTS AND PREFERENCES
See
attached.
EX 99.3 -
Page 11
Exhibit
B
CERTIFICATE OF SUBSEQUENT
SALE
Transfer
Agent Name
Transfer
Agent Address
Transfer
Agent Address
|
|
RE:
|
Sale
of Shares of Common Stock of nFinanSe Inc. (the “Company”) pursuant to the
Company’s prospectus dated _____________, 2008 (the
“Prospectus”)
|
Dear
Sir/Madam:
The
undersigned hereby certifies, in connection with the sale of shares of Common
Stock of the Company included in the table of Selling Shareholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption “Plan of Distribution” in the
Prospectus and that such sale complies with all securities laws applicable to
the undersigned, including, without limitation, the Prospectus delivery
requirements of the Securities Act of 1933, as amended.
Selling
Shareholder (the beneficial
owner):_______________________________________
Record
Holder (e.g., if held in name of
nominee):__________________________________
Restricted
Stock Certificate
No.(s):______________________________________________
Number of
Shares Sold:_______________________________________________________
Date of
Sale:________________________________________________________________
In the
event that you receive a stock certificate(s) representing more shares of Common
Stock than have been sold by the undersigned, then you should return to the
undersigned a newly issued certificate for such excess shares in the name of the
Record Holder and BEARING A
RESTRICTIVE LEGEND. Further, you should place a stop transfer
on your records with regard to such certificate.
|
Very
truly yours,
|
||||
|
Dated:
|
By:
|
|||
|
Print
Name:
|
||||
|
Title:
|
||||
EX 99.3 -
Page 12
