nFinanSe Inc. AMENDMENT NO. 3 TO WARRANTS
Exhibit
99.1
AMENDMENT
NO. 3 TO WARRANTS
This Amendment No. 3 to Warrants, dated
as of ____________ __, 2010 (this “Amendment”), is entered into
by nFinanSe Inc., a Nevada corporation (the “Company”), and
______________________ (the “Holder”).
BACKGROUND
Each Warrant listed on Exhibit A evidences
the right of the Holder thereof to purchase the number of shares of common stock
of the Company (the “Warrant
Shares”) set forth on Exhibit A adjacent to
such Warrant. Each Warrant listed on Exhibit A is referred
to herein as the “Warrant.”
Each Warrant contains a provision that
restricts its exercise, if, upon exercise, the Holder thereof would be the
beneficial owner of more than 9.99% of the outstanding shares of common stock of
the Company (the “Blocker
Provision”). Certain Warrants that were issued in connection
with the Company’s Series D Preferred Stock offering contain a provision that
such Warrants are not exercisable until the first anniversary of their issue
date (the “One-Year
Provision”). The Blocker Provision was included in the
Warrants at the request of the Holder.
The Company agrees to remove the
Blocker Provision from the Warrants pursuant to the Holder’s
request. In addition, the Company agrees to remove the One-Year
Provision in consideration of the Holder’s agreement that any Warrant Shares
will not be sold, assigned or otherwise transferred until the earlier of the
first anniversary of that Warrant’s issue date, or upon a
Merger, a Sale of Assets, or a Change in Control as set forth in Section 3(c) of
the Warrant.
Pursuant to Section 11(d) of the
Warrants, the Warrants may be amended, modified or waived upon written consent
of the party against whom such amendment, modification or waiver is to be
enforced. By execution hereof, the Company and the Holder hereby
consent to and approve the Amendment. Any capitalized terms used
herein, but not otherwise defined, shall have the meanings given to such terms
in each Warrant.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants hereinafter contained, the parties hereto
agree as follows:
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1.
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Amendment. The
Warrants are hereby amended as set forth
below:
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a.
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With
respect to Warrant Numbers [_________, ________, __________], the Exercise
Period set forth in the first sentence of the preamble paragraph (the
“Preamble”) which
states “during the period commencing on the first anniversary of the of
the date of the Warrant and expiring four (4) years thereafter (the “Exercise Period”),” is
hereby amended and restated in its entirety as
follows:
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“during
the period commencing on the date first written above and expiring five (5)
years thereafter (the “Exercise
Period”),”
In
addition, the following sentence is added as the last sentence of the
Preamble:
“Any
Warrant Shares received upon the exercise of this Warrant shall not be sold,
assigned or otherwise transferred by the Holder until the earlier of the first
anniversary of the Warrant’s issue date or upon a Merger, a Sale of Assets, or a
Change in Control as set forth in Section 3(c). The certificate(s)
representing any Warrant Shares shall bear a legend reflecting the foregoing
restriction.”
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b.
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With
respect to each Warrant listed on Exhibit A, the
second to last sentence in Section 3(c) which states “The limitations
contained in Section 5(a) below will terminate and cease to be in effect
at the time of the Triggering Transaction” is hereby deleted in its
entirety.
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c.
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With
respect to each Warrant listed on Exhibit A,
Section 5 is hereby deleted in its
entirety.
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2. Conflict. Except
as expressly amended by this Amendment, the terms and provisions of the Warrants
shall continue in full force and effect. In the event of a conflict
between the provisions of this Amendment and the Warrants, the provisions of
this Amendment shall prevail and the provisions of the Warrants shall be deemed
modified by this Amendment as necessary to resolve such conflict.
3. Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
document.
[Signature page
follows]
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IN WITNESS WHEREOF, this Amendment has
been duly executed as of the date first written above.
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By:
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Name:
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Title:
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HOLDER:
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By:
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Name:
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Title:
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EXHIBIT
A
WARRANTS
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Warrant
Number
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Date
of Warrant
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Number
of Shares
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Exercise
Price
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