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 99.4
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.: 200801
|
|
|
Issue
Date: February 19, 2008
|
Warrant
to Purchase 33,912
|
|
Shares
of Common Stock
|
WARRANT
TO PURCHASE COMMON STOCK
OF
This is to certify that, FOR VALUE
RECEIVED, Xxxxx X. Xxxxxx (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 33,912 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 $3.35 (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”. Notwithstanding
anything herein to the contrary, the Company shall not be obligated to issue any
shares of its Common Stock pursuant to this Warrant unless and until all amounts
due and owing to the Company under this Warrant shall have been paid in
full.
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. Rights of
Exercise. Provided that the Guaranty and Indemnification
Agreement, dated as of February 19, 2008, by and between the Company and the
Holder has not been terminated, the Holder’s right to exercise this Warrant into
the aggregate of 33,912 Warrant Shares shall vest as follows:
1. 3,716
Warrant Shares on April 1, 2008;
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2. 8,455
Warrant Shares on June 30, 2008;
3. 8,455
Warrant Shares on September 30, 2008;
4. 8,455
Warrant Shares on December 31, 2008; and
5. 4,831
shares on February 15, 2009.
b. Manner of
Exercise. Subject to the rights of exercise set forth in 2(a)
above, this 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
this 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(e).
c. 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 this 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 this 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 this Warrant.
d. 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 this Warrant.
e. Payment of Exercise
Price. Except as set forth in 2(f) below, 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.
f. Cashless
Exercise. This Warrant may also be exercised at such time by means
of a “cashless exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the
VWAP on the trading day immediately preceding the date of such
election;
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(B) = the
Exercise Price of this Warrant, as adjusted; and
(X) = the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
“VWAP”
shall mean, for any date, the price determined by the first of the following
clauses that applies: (a) if the Common Stock is then listed or quoted on
NASDAQ, NYSE, AMEX or other successor or comparable trading market (each a
“Trading Market”), the daily volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on the Trading Market on which the
Common Stock is then listed or quoted as reported by Bloomberg Financial L.P.
(based on a trading day from 9:30 a.m. Eastern Time to 4:00 p.m. Eastern Time);
(b) if the Common Stock is not then listed or quoted on a Trading Market and if
prices for the Common Stock are then reported in the “Pink Sheets” published by
the National Quotation Bureau Incorporated (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per
share of the Common Stock so reported; or (c) in all other cases, the fair
market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the Purchasers and reasonably acceptable to
the Company.
g. Fractional
Shares. The Company shall not issue fractions of Warrant
Shares upon exercise of this Warrant or scrip in lieu thereof. If any
fraction of a Warrant Share would, except for the provisions of this Section
2(g), be issuable upon exercise of this 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.
1-PH/2852023.3
3
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”), this 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 this Warrant in full, less the aggregate
Exercise Price payable in connection with the full exercise of this
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 thirty (30) 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 this
Warrant).
Section
4. Exchange and
Replacement.
a. Manner of Exchange and
Replacement. This Warrant is exchangeable, upon surrender of
this 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
this 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, this Warrant, the Company, at its expense,
shall execute and deliver, in lieu of this Warrant, a new Warrant of like tenor
and amount.
1-PH/2852023.3
4
Section
5. 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 this Warrant will, upon issuance in accordance with the terms of
this Warrant, be validly issued, fully paid and non-assessable.
Section
6. 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 this Warrant.
Section
7. 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
8. Restrictions on
Transfer. This Warrant may not be transferred or assigned to
any person without the prior written consent of the Company.
Section
9. Blocking
Provision. At each exercise of this Warrant, the number of
Warrant Shares that may be acquired by the Holder at the time of such exercise
shall be limited to the extent necessary to insure that, following such
exercise, the number of shares of Common Stock then beneficially owned by the
Holder and its Affiliates (as defined below) and any other persons or entities
whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Exchange Act (including shares held by any
“group” of which the Holder is a member, but excluding shares beneficially owned
by virtue of the ownership of securities or rights to acquire securities that
have limitations on the right to convert, exercise or purchase similar to the
limitation set forth herein) does not exceed 9.99% of the total number of shares
of Common Stock then issued and outstanding (the “Beneficial Ownership Cap”).
For purposes hereof, “group” has the meaning set forth in Section 13(d) of the
Exchange Act and applicable regulations of the Securities and Exchange
Commission, and the percentage held by the Holder shall be determined in a
manner consistent with the provisions of Section 13(d) of the Exchange Act. As
used herein, the term “Affiliate” means any person or entity that, directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with a person or entity, as such terms are used in and
construed under Rule 144 under the Securities Act. For purposes of this Section
9, in determining the number of outstanding shares of Common Stock, the Holder
may rely on the number of outstanding shares of Common Stock as reflected in (x)
the Company’s most recent Exchange Act filing that include the number of
outstanding shares of Common Stock, (y) a more recent public announcement by the
Company or (z) any other notice by the Company or the Company’s transfer agent
setting forth the number of shares of Common Stock outstanding. For any reason
at any time, upon the written request of the Holder, the Company shall within
two (2) business days confirm orally and in writing to the Holder the number of
shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company by the Holder or its Affiliates since
the date as of which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may increase
or decrease the Beneficial Ownership Cap, in its sole discretion, to any other
percentage in excess of 9.99% specified in such notice; provided that (i) any
such increase will not be effective until the fifteenth (15th) day after such
notice is delivered to the Company, and (ii) any such increase or decrease will
apply only to the Holder.
5
Section
10. Notice. Unless
otherwise provided in this 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 this Warrant or (in the case of the Company)
at the Principal Address, 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. This 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 this 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 this 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 this 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 this 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 8 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. This
Warrant shall be binding upon and inure to the benefit of all of the parties
and, to the extent permitted by this Warrant, their successors, legal
representatives and assigns.
f. Severability. If
any term or provision of this Warrant, or the application thereof to any person
or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this Warrant, or its application to other persons or circumstances,
shall not be affected thereby, and each term and provision of this Warrant shall
be enforced to the fullest extent permitted by law.
6
g. Construction. Whenever
the context requires, the gender of any word used in this 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 this 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 this 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 this Warrant or any provision
hereof.
i. Facsimile. Delivery
of an executed signature page of this Warrant by facsimile transmission shall be
as effective as delivery of a manually executed signature page.
[SIGNATURE
ON THE FOLLOWING PAGE]
1-PH/2852023.3
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officer as of the date first written above.
By: /s/
Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: Chief
Financial Officer
1-PH/2852023.3
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Annex A
NOTICE OF
EXERCISE
To:_________________ Dated:____________
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby elects to purchase (check applicable
box):
______ shares of the
Common Stock of the Company covered by such Warrant; or
the maximum number of
shares of Common Stock covered by such Warrant pursuantto the cashless exercise
procedure set forth in Section 2(e).
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 (check applicable
box or boxes):
$______
in lawful money of the United States; and/or
the cancellation of such
portion of the attached Warrant as is exercisable for a total of_____ Warrant
Shares (using a VWAP of $_____ per share for purposes of thiscalculation);
and/or
the cancellation of such
number of Warrant Shares as is necessary, in accordance withthe formula set
forth in Section 2(e), to exercise this Warrant with respect to themaximum
number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in Section 2(e).
Signature: ______________________
Address: _______________________
_______________________
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