Contract
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
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Warrant
No.: ________
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Warrant
to Purchase _______
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Issue
Date: March ___, 2008
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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 three (3) 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 $3.25 (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 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. Except as set forth in Section 2(e) 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.
e. Cashless
Exercise. The Warrant may also be exercised by means of a
“cashless exercise” in which the Holder shall be entitled to receive a stock
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;
(B) = the
Exercise Price of the Warrant, as adjusted; and
(X) = the
number of Warrant Shares issuable upon exercise of the Warrant in accordance
with the terms of the Warrant by means of a cash exercise rather than a cashless
exercise.
“VWAP” shall mean, for
any date on which the Holder exercises the Warrant, the price determined by the
first of the following clauses that applies: (i) 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); (ii) 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 (iii) 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 Holder and reasonably acceptable to the Company.
f. 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 (each, a “Triggering
Transaction”), the Warrant shall terminate and shall thereafter represent
only 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.
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).
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.
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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 (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), (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.
1-PH/2876036.3
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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.
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/2876036.3
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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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_____________________________ | ||
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title
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Chief
Financial Officer and Secretary
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1-PH/2876036.3
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Annex A
NOTICE OF
EXERCISE
To:
nFinanSe Inc.
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1.
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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.
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2.
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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.
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3.
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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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4.
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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:_____________________________________
_________________
___________________________________________
(Date) Signature
of Holder
1-PH/2876036.3
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