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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date
of Report (Date of earliest event reported):
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December
1, 2009
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NFINANSE
INC.
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(Exact
name of registrant specified in its charter)
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Nevada
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000-33389
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65-1071956
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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3923
Coconut Palm Drive, Suite 107,
Tampa,
Florida
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33619
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone, including area code:
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(813)
367-4400
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Not
applicable.
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(Former
name and former address, if changed since last report)
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Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the Registrant under any of the following provisions (see General Instruction A.2.
below):
□ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
□ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
□ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
□ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Closing
of Series D Preferred Stock Offering
On December 1, 2009, nFinanSe Inc. (the
“Company”) entered into Securities Purchase Agreements, dated as of December 1,
2009 (the “Purchase Agreements”), with several institutional and accredited
investors (collectively, the “Investors”), pursuant to which the Company issued
267,134 shares of its Series D Convertible Preferred Stock, $0.001 par value per
share (“Series D Preferred Stock”), and warrants (the “Warrants”) to purchase
2,671,340 shares of the Company’s common stock, $0.001 par value per share
(“Common Stock”), at an exercise price of $0.01 per share, for an aggregate
purchase price of $801,401 in cash.
The consummation of the transactions
contemplated by the Purchase Agreements closes the Company’s offering of Series
D Preferred Stock, which was initially announced by the Company in that certain
Form 8-K, filed by the Company with the Securities and Exchange Commission on
August 26, 2009. In total, the offering was comprised of an aggregate
4,331,838 shares of Series D Preferred Stock and 43,318,380 Warrants for the aggregate purchase
price of $12,995,514, $7,301,616 of which was paid by investors in cash and
$5,693,898 was paid by investors through the exchanges of a like amount of
certain outstanding accommodation loans, term loans and accrued interest payable
thereon.
Pursuant to the terms of the Purchase
Agreements, each Investor who invested an amount equal to or greater than 25% of
the amounts invested in prior transactions involving stock or certain
accommodation loans and term loans had the exercise price of any Company
warrants held by such Investor reduced to (i) $0.30 per share of Common Stock,
if they invested $100,000 or more, or (ii) $0.01 per share of Common Stock, if
they invested $250,000 or more.
The Warrants entitle the Investors to
purchase shares of Common Stock at an exercise price of $0.01 per share, which
exercise price is subject to customary adjustments for Common Stock splits and
reverse stock splits. The Warrants are exercisable during the period
commencing on the first anniversary of the date of the Warrant and expiring four
(4) years thereafter, and may be exercised by means of a “cashless
exercise.” 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 Warrants shall terminate and shall thereafter represent only
the right to receive the cash, evidences of indebtedness or other property as
the Investors would have received had they been the record owner, at the time of
completion of a Triggering Transaction, of that number of shares of Common Stock
receivable upon exercise of the Warrants in full, less the aggregate exercise
price payable in connection with the full exercise of the
Warrants. The Warrants are not exercisable by the Investors to the
extent that, if exercised, they or any of their affiliates would beneficially
own in excess of 9.99% of the then issued and outstanding shares of Common
Stock.
Emerging Growth Equities, Ltd. (“EGE”)
acted as placement agent for the above-described transactions and received a
$34,400 fee, as previously reported. Robert A. Berlacher, a current
stockholder of the Company, is a co-founder and director of EGE Holdings, Ltd.
(“EGE Holdings”), a holding company with a 100% ownership interest in
EGE. Mr. Berlacher received no compensation from EGE Holdings or EGE
related to the Company’s sale of Series D Preferred Stock and the
Warrants. Bruce E. Terker, a member of our Board, controls two
entities that are investors in EGE Holdings.
The foregoing is a summary description
of certain terms of the Purchase Agreements and the
Warrants. References to the Purchase Agreements and the form of the
Warrants are listed as Exhibit 99.1 and Exhibit 99.2, respectively, and are
incorporated herein by reference. You are encouraged to read the
Purchase Agreements and Warrants in their entirety.
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Item
3.02. Unregistered Sales of Equity Securities.
The information provided in response to
Item 1.01 of this Current Report on Form 8-K is incorporated herein by
reference. The Series D Preferred Stock (and shares of Common Stock
to be issued upon conversion thereof (the “Conversion Shares”)) have not been
registered under the Securities Act of 1933, as amended (the
“Act”). The Company offered and sold the Series D Preferred Stock and
Conversion Shares to the Investors in reliance on the exemption from
registration provided by Section 4(2) of the Act.
On August 21, 2009, the Company filed
with the Secretary of State of the State of Nevada a Certificate of
Designations, Rights and Preferences of Series D Convertible Preferred Stock
(the “Series D Certificate”), which sets forth the rights and preferences of the
Series D Preferred Stock. The Series D Certificate was filed pursuant
to Section 78.1955 of the Nevada Revised Statutes and is effective as of August
21, 2009. The Series D Certificate was attached as Exhibit 99.6 to
that certain Form 8-K, filed by the Company with the Securities and Exchange
Commission on August 26, 2009.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description
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99.1
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Form
of Securities Purchase Agreement (attached as Exhibit 99.1 to that certain
Form 8-K, filed by the Company with the Securities and Exchange Commission
on August 26, 2009).
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99.2
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Form
of Warrant (attached as Exhibit 99.2 to that certain Form 8-K, filed by
the Company with the Securities and Exchange Commission on August 26,
2009).
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DB1/63597632.3
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NFINANSE
INC.
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Date:
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December 7, 2009
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By:
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/s/ JERRY R.
WELCH
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Name:
Jerry R. Welch
Title: Chief
Executive Officer
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DB1/63597632.3
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EXHIBIT
INDEX
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Exhibit Number
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Description
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99.1
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Form
of Securities Purchase Agreement (attached as Exhibit 99.1 to that certain
Form 8-K, filed by the Company with the Securities and Exchange Commission
on August 26, 2009).
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99.2
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Form
of Warrant (attached as Exhibit 99.2 to that certain Form 8-K, filed by
the Company with the Securities and Exchange Commission on August 26,
2009).
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DB1/63597632.3
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