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 REASONABLY 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
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Warrant
No.: __
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Warrant
to Purchase __________
|
|
Issue
Date: February 3, 2009
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Shares
of Common Stock
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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 one (1) year
thereafter, unless extended pursuant to Section 1(b) below (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 $1.00 (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.
a. 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”).
b. It
is expressly understood that the Warrant is being issued by the Company to the
Holder as consideration for participating in an accommodation loan (the “Accommodation Loan”)
pursuant to the terms and conditions of that certain Amended and Restated Loan
and Security Agreement, dated as of the date hereof (the “Loan Agreement”), by
and among the Company, the Holder and the lenders party thereto (together with
the Holder, the “Lenders”). In
the event the Company and the Lenders extend the maturity of the Accommodation
Loan from one year to 18 months pursuant to Section 2.2(c) of the Loan
Agreement, the Exercise Period of the Warrant will automatically extend to the
18 month anniversary of the date of the Warrant.
DB1/62568198.1
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) below.
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 of the Exercise Price 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 stock 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, Sale of Assets,
Change of Control. In the event that the Company shall (i)
consolidate with or merge with or into another person or entity, (ii) sell,
transfer or lease all or substantially all of its assets, (iii) change its
Common Stock into property or other securities, or (iv) enter into and
consummate a transaction constituting a Change of Control (as defined below)
(each, a “Triggering
Transaction”), the Warrant shall terminate and shall thereafter represent
the right to receive the cash, evidences of indebtedness or other property as
the Holder would have received had the Holder been the record owner, at the time
of completion of such 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 the Holder in writing, setting
forth the terms of any such Triggering Transaction (including the proposed
closing date for the consummation of such Triggering Transaction, 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 the 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. The 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 the Holder for execution in connection with such
Triggering Transaction. The limitations contained in Section 5(a)
below will terminate and cease to be in effect at the time of the Triggering
Transaction. “Change of Control”
shall mean (i) the sale of the Company to one or more independent third parties,
in a single transaction or series of related transactions, (ii) the merger,
combination or consolidation of the Company into or with another corporation or
(iii) any other transaction or occurrence, pursuant to which or as a result of
which any independent third party or parties acquire capital stock or other
securities of the Company possessing the voting power to elect a majority of the
Board of Directors of the Company (whether by merger or consolidation or
issuance, sale or transfer of the Company’s capital stock or
otherwise).
d. Notice of
Adjustment. In each case of an adjustment or readjustment of
the Exercise Price and the 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).
DB1/62568198.1
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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 to the Holder.
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 Section 5(a) shall have
any effect on the applicability of the provisions of this Section 5(a) with
respect to any subsequent determination of exercisability. For the
purposes of this Section 5(a), 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 Section 5(a)
shall be implemented in a manner otherwise than in strict conformity with the
terms this Section 5(a) to correct this Section 5(a) (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 Section 5(a)
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 (i) the Company’s most recent Form 10-K, Form 10-Q,
Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission (as the case may be), (ii) a more recent public announcement
by the Company, or (iii) 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 Section 5(a) above will terminate and cease to be in
effect three (3) business days before the Expiration Date.
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 ensure 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 by
the Holder 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 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, or to such other address as is designated by written notice,
similarly given to each other party hereto.
DB1/62568198.1
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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.
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 annexes are to annexes attached hereto, each of which is made
a part hereof for all purposes.
DB1/62568198.1
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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]
DB1/62568198.1
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IN
WITNESS WHEREOF, the Company has caused the Warrant to be executed by its duly
authorized officer as of the date first written above.
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Chief
Financial Officer and Secretary
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DB1/62568198.1
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Annex A
NOTICE OF
EXERCISE
To:
nFinanSe Inc.
The
undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby elects to purchase (check applicable box):
________
shares of the Common Stock of the Company covered by such Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant. Such payment takes
the form of:
______
in lawful money of the United States.
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.
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:
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Name:
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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:
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Name:
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(Date)
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Signature
of Holder
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DB1/62568198.1
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