SECURITIES EXCHANGE AGREEMENT
Exhibit
99.1
THIS
SECURITIES EXCHANGE AGREEMENT, dated as of December 28, 2006 (this “Agreement”),
is
entered into by and between nFinanSe Inc., a Nevada corporation (the
“Company”),
and
_____________________ (the “Securityholder”).
RECITALS
WHEREAS,
the Securityholder owns that certain Senior Secured Convertible Promissory
Note,
dated as of _____________, by the Company in favor of the Securityholder (the
“Note”)
in the
aggregate principal amount of $_________; and
WHEREAS,
the Securityholder desires to transfer the Note to the Company and the Company
desires to issue to the Securityholder, in exchange for the Note and any
interest accrued but unpaid thereon, _________ shares (the “Shares”)
of the
Company’s Series A Convertible Preferred Stock (the
rights and preferences of which are as provided in that certain Certificate
of
Designations, Rights and Preferences attached hereto as Exhibit
A) (the
“Preferred
Stock”).
WHEREAS,
this Agreement is one of a series of securities exchange agreements by which
all
of the Company’s outstanding Senior Secured Convertible Promissory Notes are
being exchanged into an aggregate of 5,327,930 shares of the Preferred
Stock.
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 stock purchase agreements, pursuant to which the Company will sell
and issue 4,000,000 shares of Preferred Stock (the “Offered
Shares”).
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 Surrender
of the Note for the Preferred Stock.
The
Securityholder hereby contributes, conveys, transfers, assigns and delivers
to
the Company and the Company hereby accepts from the Securityholder for
cancellation the Note, and in exchange therefor, the Company hereby issues
and
delivers to the Securityholder the Shares (the “Exchange”).
1.2. Cancellation
of the Note and Issuance of the Preferred Stock.
Upon
execution of this Agreement by the parties, the transfer of the Note will be
effective, the Note will be deemed canceled and the Shares of Preferred Stock
will be deemed issued. The Company shall execute and deliver to the
Securityholder certificates representing the Preferred Stock. The Securityholder
shall deliver the Note to the Company.
1.3. 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 Shares will be duly
authorized, validly issued, fully paid and non-assessable. All shares of the
Company’s authorized shares of common stock, par value $0.001 (the “Common
Stock”),
which
may be issued upon the conversion of the Shares and the Offered Shares
(collectively and as converted, the “Conversion
Shares”)
will
be validly issued, fully paid and non-assessable.
2.3 Authorized
Shares.
The
Company 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 Common Stock to provide for the conversion of the Shares into the Conversion
Shares.
2.4 Authority
Relative to this Agreement.
The
execution, delivery and performance of, and compliance with, this Agreement
and
the issuance of the Shares in exchange for the Note have been duly authorized
by
all necessary corporate action on the part of the Company, and this Agreement
is
a valid and binding agreement of the Company enforceable in accordance with
its
terms.
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
and
the terms of the Exchange has 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
Shares 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 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 Shares 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 Note 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.
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 Legend.
The
Securityholder acknowledges and agrees that, subject to the provisions of
Section 4 below, the certificates representing the Shares and the certificates
representing 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 “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 ACT OR AN OPINION OF COUNSEL,
ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER OR DISPOSITION MAY BE AFFECTED WITHOUT REGISTRATION UNDER THE
ACT.
Any
stock
certificate issued at any time in exchange or substitution for any certificate
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 Act or
applicable state securities laws.
SECTION
4
REGISTRATION
RIGHTS
4.1 Registration
of the Conversion Shares; Compliance with the Securities
Act.
The
Company shall:
(a) 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 Securities and Exchange Commission (the “SEC”),
within 60 days after the Closing Date (or, if the 60th day after the Closing
Date is not a business day, then the first business day thereafter) a
registration statement on such form that is then available to the Company (the
“Registration
Statement”)
to
enable the resale of the Conversion Shares by the Securityholder from time
to
time on the OTC Bulletin Board or in privately-negotiated
transactions;
(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 the Conversion Shares without restriction by the volume limitations
of Rule 144(e) of the Securities Act, or (iii) such time as all of the
Conversion Shares have been sold pursuant to a registration
statement;
(d) furnish
(which may be furnished electronically) to the Securityholder with respect
to
the Conversion 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 Conversion 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 Conversion 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; 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.
SECTION
5
TRANSFER
OF SHARES
5.1 Transfer
of Conversion Shares After Registration; Suspension.
(a) The
Securityholder agrees that it will not effect any disposition of the Conversion
Shares or its right to purchase the Conversion 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 Conversion 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 Conversion 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 Conversion 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 Conversion
Shares under the Registration Statement, provided that it arranges for delivery
of a current prospectus to the transferee of such Conversion Shares.
(f) In
the
event of a sale of Conversion 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 Conversion Shares may be properly
transferred.
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 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
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
legal
or other expenses reasonably incurred in investigating, defending or preparing
to defend any such action, proceeding or claim.
(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 the Securityholder, as well as any other Selling
Stockholders under such registration statement 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 Conversion 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 Conversion
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.
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, three 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
00xx
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxxxx
(b) with
a
copy to:
Xxxxxx,
Xxxxx & Bockius LLP
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
(c) if
to the
Securityholder, at its mail or e-mail address on the signature page hereto,
or
at
such other address or addresses as may have been furnished to the 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 Conversion Shares.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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.
|
By:_________________________________
Name:
Title:
|
By:_________________________________
Name:
Title:
Provide
Notices to:
Address:
_______________________________
_______________________________
_______________________________
Email
Address:
_______________________________
|
Exhibit
A
See
attached.
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 _____________, 2006 (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:_________________________
