THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT TO...
Exhibit
99.2
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED OR DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT
OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY, QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE SECURITIES ACT, THE
APPLICABLE STATE SECURITIES LAW AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER
Warrant
No.: [_______]
Issue
Date: June 29, 2007 Warrant to Purchase [______]
Shares
of
Common Stock
WARRANT
TO PURCHASE COMMON STOCK
OF
This
is to certify that, FOR VALUE
RECEIVED, [___________] (the “Holder”), is entitled to purchase, subject
to the terms set forth below, from nFinanse Inc., a Nevada corporation (the
“Company”), during the period commencing on the date first written above
and expiring five (5) years thereafter (the “Exercise Period”), an
aggregate of [____________] ([______]) fully paid and non-assessable shares
of
the Company’s common stock, $0.001 par value per share (the “Common
Stock”), at a per share purchase price of $5.00 (the “Exercise
Price”). The Exercise Price and the number of such shares are
subject to adjustment, from time to time, as provided below. The
shares of Common Stock deliverable upon such exercise are hereinafter sometimes
referred to as the “Warrant Shares”. This Warrant is herein
referred to as the “Warrant”.
Section
1. Exercise
Period. In the event that the expiration of the Exercise Period
shall fall on a Saturday, Sunday or United States federally recognized holiday,
the expiration of the Exercise Period shall be extended to 5:00 P.M. (E.S.T.)
on
the first business day following such Saturday, Sunday or recognized holiday
(the “Expiration Date”).
Section
2. Exercise
of Warrant
a. Manner
of Exercise. The Warrant may be exercised by the Holder, in whole
or in part, at any time and from time to time during the Exercise Period, by
(i)
the surrender of the Warrant to the Company, with the Notice of Exercise
attached hereto as Annex A (the “Notice of Exercise”) duly
completed and executed on behalf of the Holder, at the principal office of
the
Company or such other office or agency of the Company as it may designate by
notice in writing to the Holder (the “Principal Office”), and (ii) the
delivery of payment to the Company of the Exercise Price for the number of
Warrant Shares specified in the Notice of Exercise in any manner specified
in
Section 2(d).
b. Issuance
of Warrant Shares. Such Warrant Shares shall be deemed to be
issued to the Holder as the record holder of such Warrant Shares as of the
close
of business on the date on which the Warrant shall have been surrendered and
payment shall have been made for the Warrant Shares as aforesaid. As
promptly as practicable thereafter, but in any event within five (5) business
days, the Company shall deliver to the Holder a stock certificate(s) for the
Warrant Shares specified in the Notice of Exercise. If the Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of the stock certificate(s), also deliver to the Holder, at the
Company’s expense, a new warrant evidencing the right to purchase the remaining
number of Warrant Shares, which new warrant shall in all other respects be
identical to the Warrant.
c. Restrictive
Legends. Each certificate representing the Warrant Shares held by
the Holder shall be endorsed by the Company with a legend substantially similar
to that legend at the beginning of the Warrant.
d. Payment
of Exercise Price. The Exercise Price shall be payable in cash or
its equivalent, payable by wire transfer of immediately available funds to
a
bank account specified by the Company or by certified or bank cashiers’ check in
lawful money of the United States of America.
e. Fractional
Shares. The Company shall not issue fractions of Warrant Shares
upon exercise of the Warrant or scrip in lieu thereof. If any
fraction of a Warrant Share would be issuable upon exercise of the Warrant,
the
Company shall in lieu thereof pay to the person entitled thereto an amount
in
cash equal to such fraction, calculated to the nearest one-hundredth (1/100)
of
a share, multiplied by the Exercise Price.
Section
3. Adjustment
to Exercise Price and Warrant Shares. The Exercise Price in
effect from time to time and the number of Warrant Shares shall be subject
to
adjustment in certain cases as set forth in this Section 3:
a. Stock
Split. If, at any time after the date hereof, the number of
shares of the Company’s capital stock outstanding is increased by a stock
dividend or by a subdivision or split-up of shares, then, following the record
date for the determination of holders of capital stock entitled to receive
such
stock dividend, subdivision or split-up, the Exercise Price shall be
appropriately decreased and the aggregate number of Warrant Shares shall be
increased in proportion to such increase in outstanding shares. The
foregoing provisions shall similarly apply to successive stock dividends,
subdivisions or split-ups.
b. Reverse
Stock-Split. If, at any time after the date hereof, the number of
shares of capital stock outstanding is decreased by a combination or
reverse-split of the outstanding shares, then, following the record date for
such combination or reverse-split, the Exercise Price shall be appropriately
increased and the aggregate number of Warrant Shares shall be decreased in
proportion to such decrease in outstanding shares. The foregoing
provisions shall similarly apply to successive combinations or
reverse-splits.
c. Merger
or Sale of Assets. In the event that the Company shall
consolidate with or merge with or into another person or entity, or the Company
shall sell, transfer or lease all or substantially all of its assets, or the
Company shall change its Common Stock into property or other securities
(collectively, the “Triggering Transaction”), the Warrant shall terminate
and shall thereafter represent only the right to receive the cash, evidences
of
indebtedness or other property as Holder would have received had Holder been
the
record owner, at the time of completion of the Triggering Transaction, of that
number of Warrant Shares receivable upon exercise of the Warrant in full, less
the aggregate Exercise Price payable in connection with the full exercise of
the
Warrant. The Company shall notify Holder in writing, setting forth
the terms of any such Triggering Transaction (including the proposed closing
date for its consummation, which shall not be less than fifteen (15) days from
the effective date of such notice) and all documents required to be executed
in
order to consummate any such Triggering Transaction, and Holder shall be
required to execute such documents to the same extent and upon the same terms
as
required of other holders of Common Stock. Holder shall deliver to
the Company at least seven (7) days prior to the proposed closing date referred
to above all documents previously furnished to Holder for execution in
connection with such Triggering Transaction.
d. Notice
of Adjustment. In each case of an adjustment or readjustment of
the Exercise Price and number of Warrant Shares pursuant to this Section 3,
the
Company shall, at its expense, notify the Holder of such event including
information regarding (i) such adjustment or readjustment, and (ii) the Exercise
Price and number of Warrant Shares in effect following such adjustment or
readjustment (including the amount, if any, of other securities and property
that at the time would be received upon the exercise of the
Warrant).
2
Section
4. Exchange
and Replacement.
a. Manner
of Exchange and Replacement. The Warrant is exchangeable, upon
surrender of the Warrant by the Holder to the Company at the Principal Office,
for new warrants of like tenor registered in the Holder’s name and representing
in the aggregate the right to purchase the same number of Warrant Shares
purchasable hereunder, each of such new warrants to represent the right to
purchase such number of Warrant Shares as shall be designated by the Holder
at
the time of surrender.
b. Issuance
of New Warrant. Upon receipt by the Company of (i) evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation
of
the Warrant, and (ii) (A) in the case of loss, theft or destruction, an
indemnity agreement reasonably satisfactory in form and substance to the Company
or (B) in the case of mutilation, the Warrant, the Company, at its expense,
shall execute and deliver, in lieu of the Warrant, a new warrant of like tenor
and amount.
Section
5. Limitations
on Exercise.
a. Notwithstanding
anything to the contrary contained in the Warrant, the Warrant shall not be
exercisable by the Holder hereof to the extent (but only to the extent) that,
if
exercisable by the Holder, the Holder or any of its affiliates would
beneficially own in excess of 9.99% (the “Maximum Percentage”) of the
then issued and outstanding shares of Common Stock. To the extent the above
limitation applies, the determination of whether the Warrant shall be
exercisable (vis-a-vis other convertible, exercisable or exchangeable securities
owned by the Holder) and of which warrants shall be exercisable (as among all
warrants owned by the Holder) shall, subject to such Maximum Percentage
limitation, be determined on the basis of the first submission to the Company
for conversion, exercise or exchange (as the case may be). No prior
inability to exercise the Warrant pursuant to this paragraph shall have any
effect on the applicability of the provisions of this paragraph with respect
to
any subsequent determination of exercisability. For the purposes of
this paragraph, beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of percentage
ownership) shall be determined by the Holder in accordance with Section 13(d)
of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. The provisions of this paragraph shall be implemented
in
a manner otherwise than in strict conformity with the terms this paragraph
to
correct this paragraph (or any portion hereof) which may be defective or
inconsistent with the intended Maximum Percentage beneficial ownership
limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such Maximum Percentage limitation. The
limitations contained in this paragraph shall apply to a successor Holder of
the
Warrant. For purposes of the Warrant, in determining the number of
issued and outstanding shares of Common Stock, the Holder may rely on the number
of issued and outstanding shares of Common Stock as reflected in (1) the
Company’s most recent Form 10-K (or Form 10-KSB), Form 10-Q (or Form 10-QSB),
Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission (as the case may be), (2) a more recent public announcement
by the Company or (3) any other notice by the Company setting forth the number
of shares of Common Stock issued and outstanding. For any reason at
any time, upon the written or oral request of the Holder, the Company shall
within three (3) business days confirm orally and in writing to the Holder
the
number of shares of Common Stock then issued and outstanding, including by
virtue of any prior conversion or exercise of convertible or exercisable
securities into Common Stock, including, without limitation, pursuant to the
Warrant.
b. The
limitations contained in paragraph (a) above will terminate and cease to be
in
effect three (3) business days before the Expiration Date.
3
Section
6. Representations
and Warranties of the Company. The Company represents and
warrants to the Holder that all shares of Common Stock which may be issued
upon
the exercise of the Warrant will, upon issuance in accordance with the terms
of
the Warrant, be validly issued, fully paid and non-assessable.
Section
7. Covenants
of the Company. The Company covenants and agrees that it shall
take all such action as may be required to assure that the Company shall at
all
times have authorized and reserved, a sufficient number of shares of its Common
Stock to provide for the exercise of the Warrant.
Section
8. No
Stockholder Rights. The Holder shall not be entitled to vote or
receive dividends or be deemed the holder of the Warrant Shares or any other
securities of the Company that may at any time be issuable upon the exercise
hereof for any purpose, nor shall anything contained herein be construed to
confer upon the Holder, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any other
matter submitted to the stockholders of the Company at any meeting thereof,
or
to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance or reclassification of capital stock, change of
par
value, or change of stock to no par value, consolidation, merger, conveyance
or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant shall have been exercised
as
provided herein.
Section
9. Restrictions
on Transfer. The Warrant may not be transferred or assigned to
any person without the prior written consent of the Company.
Section
10. Notice. Unless
otherwise provided in the Warrant, all notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by U.S. Mail or
a
nationally recognized overnight express courier postage prepaid, and shall
be
deemed given one day after being so sent, or if delivered by hand shall be
deemed given on the date of such delivery to such party, or if sent to such
party (in the case of a Holder) at the address provided to the Company by the
Holder at the time of issuance of the Warrant or (in the case of the Company)
at
0000 00xx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, 00000, Attention: Chief Financial
Officer, or to such other address as is designated by written notice, similarly
given to each other party hereto.
Section
11. Miscellaneous.
a. Governing
Law. The Warrant shall be construed in accordance with and
governed by the laws of the State of Florida (without giving effect to any
conflicts or choice of law provisions that would cause the application of the
domestic substantive laws of any other jurisdiction).
b. Prevailing
Party’s Costs and Expenses. The prevailing party in any
mediation, arbitration or legal action to enforce or interpret the Warrant
shall
be entitled to recover from the non-prevailing party all costs and expenses,
including reasonable and documented attorneys’ fees, incurred in such action or
proceeding.
c. Failure
to Pursue Remedies. Except where a time period is specified, no
delay on the part of any party in the exercise of any right, power, privilege
or
remedy hereunder shall operate as a waiver thereof, nor shall any exercise
or
partial exercise of any such right, power, privilege or remedy preclude any
further exercise thereof or the exercise of any other right, power, privilege
or
remedy.
4
d. Amendment
and Waiver. No provision of the Warrant may be amended, modified
or waived except upon the written consent of the party against whom such
amendment, modification or waiver is to be enforced. The failure of
any party to enforce any of the provisions of the Warrant shall in no way be
construed as a waiver of such provisions and shall not affect the right of
such
party thereafter to enforce each and every provision of the Warrant in
accordance with its terms.
e. Assignment;
Binding Effect. The rights and obligations of the Company set
forth herein may not be assigned or delegated by the Company without the prior
written consent of the Holder. Pursuant to Section 9 hereof, the
rights and obligations of the Holder set forth herein may not be assigned or
delegated by the Holder without the prior written consent of the
Company. The Warrant shall be binding upon and inure to the benefit
of all of the parties and, to the extent permitted by the Warrant, their
successors, legal representatives and assigns.
f. Severability. If
any term or provision of the Warrant, or the application thereof to any person
or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of the Warrant, or its application to other persons or circumstances,
shall not be affected thereby, and each term and provision of the Warrant shall
be enforced to the fullest extent permitted by law.
g. Construction. Whenever
the context requires, the gender of any word used in the Warrant includes the
masculine, feminine or neuter, and the number of any word includes the singular
or plural. Unless the context otherwise requires, all references to
articles and sections refer to articles and sections of the Warrant, and all
references to exhibits are to exhibits attached hereto, each of which is made
a
part hereof for all purposes.
h. Headings. The
headings and subheadings in the Warrant are included for convenience and
identification only and are in no way intended to describe, interpret, define
or
limit the scope, extent or intent of the Warrant or any provision
hereof.
i. Facsimile. Delivery
of an executed signature page of the Warrant by facsimile transmission shall
be
as effective as delivery of a manually executed signature page.
[SIGNATURE
ON THE FOLLOWING PAGE]
1-PH/2694634.5
5
IN
WITNESS WHEREOF, the Company has caused the Warrant to be executed by its duly
authorized officer as of the date first written above.
By:
__________________________
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chief Financial Officer and Secretary
1-PH/2694634.5
6
Annex
A
NOTICE
OF EXERCISE
To:
nFinanSe Inc.
|
1.
|
The
undersigned hereby elects to purchase _______________ shares of Common
Stock of nFinanSe Inc., pursuant to the terms of the attached Warrant,
and
tenders herewith payment of the Exercise Price for such shares by
means of
a cash payment, and tenders herewith payment in full for the Exercise
Price of the shares being purchased, together with all applicable
transfer
taxes, if any.
|
|
2.
|
In
exercising the Warrant, the undersigned hereby confirms and acknowledges
that the shares of Common Stock to be issued upon exercise are being
acquired solely for the account of the undersigned and not as a nominee
for any other party, or for investment, and that the undersigned
will not
offer, sell or otherwise dispose of any such shares of Common Stock
except
under circumstances that will not result in a violation of the
registration provisions of the Securities Act of 1933, as amended,
or any
applicable state securities laws.
|
|
3.
|
Please
issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is
specified
below:
|
Name:_____________________________________
|
4.
|
Please
issue a new warrant for the unexercised portion of the attached Warrant
in
the name of the undersigned or in such other name as is specified
below:
|
Name:_____________________________________
_________________ ___________________________________________
(Date) Signature
of Holder
1-PH/2694634.5
7
