EXHIBIT 10.3
WARRANT TO PURCHASE COMMON STOCK
THIS WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON STOCK
NUMBER OF SHARES: UP TO 1,689,612 SHARES (SUBJECT TO ADJUSTMENT)
WARRANT PRICE: $0.47 PER SHARE
ISSUANCE DATE: DECEMBER 3, 2004
EXPIRATION DATE: DECEMBER 3, 2007
THIS WARRANT CERTIFIES THAT for value received, Mercator Advisory Group, LLC, or
its registered assigns (hereinafter called the "HOLDER") is entitled to purchase
from International Card Establishment, Inc. (hereinafter called the "COMPANY"),
the above referenced number of fully paid and nonassessable shares (the
"SHARES") of common stock (the "COMMON STOCK"), of Company, at the Warrant Price
per Share referenced above; the number of shares purchasable upon exercise of
this Warrant referenced above being subject to adjustment from time to time as
described herein. This Warrant is issued in connection with that certain
Subscription Agreement of even date herewith, by and between the Company and
Holder (the "SUBSCRIPTION AGREEMENT"). The exercise of this Warrant shall be
subject to the provisions, limitations and restrictions contained herein.
1. TERM AND EXERCISE.
1.1 TERM. This Warrant is exercisable in whole or in part (but not as to any
fractional share of Common Stock), at any time and from time to time after the
date hereof prior to 6:00 p.m. on the Expiration Date set forth above.
1.2 WARRANT PRICE. The Warrant shall be exercisable at the Warrant Price
described above.
1.3 MAXIMUM NUMBER OF SHARES. The maximum number of Shares of Common Stock
exercisable pursuant to this Warrant is 1,689,612 Shares. However,
notwithstanding anything herein to the contrary, in no event shall the Holder be
permitted to exercise this Warrant for a number of Shares greater than the
number that would cause the aggregate beneficial ownership of the Company's
Common Stock (calculated pursuant to Rule 13d-3 of the Securities Exchange Act
of 1934, as amended) of the Holder and all persons affiliated with the Holder to
equal 9.99% of the Company's Common Stock then outstanding.
1.4 PROCEDURE FOR EXERCISE OF WARRANT. Holder may exercise this Warrant by
delivering the following to the principal office of the Company in accordance
with Section 5.1 hereof: (i) a duly executed Notice of Exercise in substantially
the form attached as Schedule A, (ii) payment of the Warrant Price then in
effect for each of the Shares being purchased, as designated in the Notice of
Exercise, and (iii) this Warrant. Payment of the Warrant Price may be in cash,
certified or official bank check payable to the order of the Company, or wire
transfer of funds to the Company's account (or any combination of any of the
foregoing) in the amount of the Warrant Price for each share being purchased.
1.5 DELIVERY OF CERTIFICATE AND NEW WARRANT. In the event of any exercise of the
rights represented by this Warrant, a certificate or certificates for the shares
of Common Stock so purchased, registered in the name of the Holder or such other
name or names as may be designated by the Holder, together with any other
securities or other property which the Holder is entitled to receive upon
exercise of this Warrant, shall be delivered to the Holder hereof, at the
Company's expense, within a reasonable time, not exceeding fifteen (15) calendar
days, after the rights represented by this Warrant shall have been so exercised;
and, unless this Warrant has expired, a new Warrant representing the number of
Shares (except a remaining fractional share), if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
hereof within such time. The person in whose name any certificate for shares of
Common Stock is issued upon exercise of this Warrant shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was received by the
Company, irrespective of the date of delivery of such certificate, except that,
if the date of such surrender and payment is on a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become the
holder of such Shares at the close of business on the next succeeding date on
which the stock transfer books are open.
1.6 RESTRICTIVE LEGEND. Each certificate for Shares shall bear a restrictive
legend in substantially the form as follows, together with any additional legend
required by (i) any applicable state securities laws and (ii) any securities
exchange upon which such Shares may, at the time of such exercise, be listed:
THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ("TRANSFERRED") IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. IN THE ABSENCE OF
SUCH REGISTRATION, SUCH SHARES MAY NOT BE TRANSFERRED UNLESS, IF THE
COMPANY REQUESTS, THE COMPANY HAS RECEIVED A WRITTEN OPINION FROM COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY STATING THAT SUCH
TRANSFER IS BEING MADE IN COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE
SECURITIES LAWS.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend shall also bear such legend unless, in the
opinion of counsel for the Holder thereof (which counsel shall be reasonably
satisfactory to the Company), the securities represented thereby are not, at
such time, required by law to bear such legend.
1.7 FRACTIONAL SHARES. No fractional Shares shall be issuable upon exercise or
conversion of the Warrant. In the event of a fractional interest, the number of
Shares to be issued shall be rounded down to the nearest whole Share.
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1 REPRESENTATIONS AND WARRANTIES.
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and has all necessary
power and authority to perform its obligations under this Warrant;
(b) The execution, delivery and performance of this Warrant has been duly
authorized by all necessary actions on the part of the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms; and
(c) This Warrant does not violate and is not in conflict with any of the
provisions of the Company's Articles of Incorporation or Certificate of
Determination, Bylaws and any resolutions of the Company's Board of Directors or
stockholders, or any agreement of the Company, and no event has occurred and no
condition or circumstance exists that might (with or without notice or lapse of
time) constitute or result directly or indirectly in such a violation or
conflict.
2.2 ISSUANCE OF SHARES. The Company covenants and agrees that all shares of
Common Stock that may be issued upon the exercise of the rights represented by
this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. The Company further covenants and agrees that it will pay when
due and payable any and all federal and state taxes which may be payable in
respect of the issue of this Warrant or any Common Stock or certificates
therefor issuable upon the exercise of this Warrant. The Company further
covenants and agrees that the Company will at all times have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise in full of the rights represented by this
Warrant. If at any time the number of authorized but unissued shares of Common
Stock of the Company shall not be sufficient to effect the exercise of the
Warrant in full, subject to the limitations set forth in Section 1.3 hereto,
then the Company will take all such corporate action as may, in the opinion of
counsel to the Company, be necessary or advisable to increase the number of its
authorized shares of Common Stock as shall be sufficient to permit the exercise
of the Warrant in full, subject to the limitations set forth in Section 1.3
hereto, including without limitation, using its best efforts to obtain any
necessary stockholder approval of such increase. The Company further covenants
and agrees that if any shares of capital stock to be reserved for the purpose of
the issuance of shares upon the exercise of this Warrant require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued or delivered upon exercise, then the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be. If and so long as the Common
Stock issuable upon the exercise of this Warrant is listed on any national
securities exchange or the Nasdaq Stock Market, the Company will, if permitted
by the rules of such exchange or market, list and keep listed on such exchange
or market, upon official notice of issuance, all shares of such Common Stock
issuable upon exercise of this Warrant.
3. OTHER ADJUSTMENTS.
3.1 SUBDIVISION OR COMBINATION OF SHARES. In case the Company shall at any time
subdivide its outstanding Common Stock into a greater number of shares, the
Warrant Price in effect immediately prior to such subdivision shall be
proportionately reduced, and the number of Shares subject to this Warrant shall
be proportionately increased, and conversely, in case the outstanding Common
Stock of the Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall be
proportionately increased, and the number of Shares subject to this Warrant
shall be proportionately decreased.
3.2 DIVIDENDS IN COMMON STOCK, OTHER STOCK OR PROPERTY. If at any time or from
time to time the holders of Common Stock (or any shares of stock or other
securities at the time receivable upon the exercise of this Warrant) shall have
received or become entitled to receive, without payment therefor:
(a) Common Stock, Options or any shares or other securities which are at any
time directly or indirectly convertible into or exchangeable for Common Stock,
or any rights or options to subscribe for, purchase or otherwise acquire any of
the foregoing by way of dividend or other distribution;
(b) any cash paid or payable otherwise than as a regular cash dividend; or
(c) Common Stock or additional shares or other securities or property (including
cash) by way of spin-off, split-up, reclassification, combination of shares or
similar corporate rearrangement (other than Common Stock issued as a stock split
or adjustments in respect of which shall be covered by the terms of Section 3.1
above) and additional shares, other securities or property issued in connection
with a Change (as defined below) (which shall be covered by the terms of Section
3.4 below), then and in each such case, the Holder hereof shall, upon the
exercise of this Warrant, be entitled to receive, in addition to the number of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of stock and other securities and
property (including cash in the cases referred to in clause (b) above and this
clause (c)) which such Holder would hold on the date of such exercise had such
Holder been the holder of record of such Common Stock as of the date on which
holders of Common Stock received or became entitled to receive such shares or
all other additional stock and other securities and property.
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. If any
recapitalization, reclassification or reorganization of the share capital of the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of its shares and/or assets or other
transaction (including, without limitation, a sale of substantially all of its
assets followed by a liquidation) shall be effected in such a way that holders
of Common Stock shall be entitled to receive shares, securities or other assets
or property (a "CHANGE"), then, as a condition of such Change, lawful and
adequate provisions shall be made by the Company whereby the Holder hereof shall
thereafter have the right to purchase and receive (in lieu of the Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby) such shares, securities or other
assets or property as may be issued or payable with respect to or in exchange
for the number of outstanding Common Stock which such Holder would have been
entitled to receive had such Holder exercised this Warrant immediately prior to
the consummation of such Change. The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other property. The new
Warrant shall provide for adjustments which shall be as nearly equivalent as may
be practicable to give effect to the adjustments provided for in this Section 3
including, without limitation, adjustments to the Warrant Price and to the
number of securities or property issuable upon exercise of the new Warrant. The
provisions of this Section 3.3 shall similarly apply to successive Changes.
4. OWNERSHIP AND TRANSFER.
4.1 OWNERSHIP OF THIS WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary until presentation of this Warrant for registration of transfer
as provided in this Section 4.
4.2 TRANSFER AND REPLACEMENT. This Warrant and all rights hereunder are
transferable in whole or in part upon the books of the Company by the Holder
hereof in person or by duly authorized attorney, and a new Warrant or Warrants,
of the same tenor as this Warrant but registered in the name of the transferee
or transferees (and in the name of the Holder, if a partial transfer is
effected) shall be made and delivered by the Company upon surrender of this
Warrant duly endorsed, at the office of the Company in accordance with Section
5.1 hereof. Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft or destruction, and, in such case, of indemnity or
security reasonably satisfactory to it, and upon surrender of this Warrant if
mutilated, the Company will make and deliver a new Warrant of like tenor, in
lieu of this Warrant; provided that if the Holder hereof is an instrumentality
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of a state or local government or an institutional holder or a nominee for such
an instrumentality or institutional holder an irrevocable agreement of indemnity
by such Holder shall be sufficient for all purposes of this Warrant, and no
evidence of loss or theft or destruction shall be necessary. This Warrant shall
be promptly cancelled by the Company upon the surrender hereof in connection
with any transfer or replacement. Except as otherwise provided above, in the
case of the loss, theft or destruction of a Warrant, the Company shall pay all
expenses, taxes and other charges payable in connection with any transfer or
replacement of this Warrant, other than income taxes and stock transfer taxes
(if any) payable in connection with a transfer of this Warrant, which shall be
payable by the Holder. Holder will not transfer this Warrant and the rights
hereunder except in compliance with federal and state securities laws and except
after providing evidence of such compliance reasonably satisfactory to the
Company.
5. MISCELLANEOUS PROVISIONS.
5.1 NOTICES. Any notice or other document required or permitted to be given or
delivered to the Holder shall be delivered or forwarded to the Holder at c/o
Mercator Advisory Group, LLC, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxx (Facsimile No. 213/553-8285), or
to such other address or number as shall have been furnished to the Company in
writing by the Holder, with a copy to Xxxxxxxx Xxxxxx Xxxxxxx & Hampton LLP, 000
Xxxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 Attention
Xxxxx X. Xxxxx (Facsimile No. 213/620-1398). Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
or forwarded to the Company AT International Card Establishment, Inc., 000
Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention Xxxxxxx
Xxxxxxxx (Facsimile No. 000-000-0000, with a copy to Xxxxxx X. Xxxxxxx, Inc., A
Law Corporation, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000 Attention: Xxxxxx X. Xxxxxxx, Esq. (Facsimile No. 310-556-3687), or to
such other address or number as shall have been furnished to Holder in writing
by the Company.
5.2 All notices, requests and approvals required by this Warrant shall be in
writing and shall be conclusively deemed to be given (i) when hand-delivered to
the other party, (ii) when received if sent by facsimile at the address and
number set forth above; provided that notices given by facsimile shall not be
effective, unless either (a) a duplicate copy of such facsimile notice is
promptly given by depositing the same in the mail, postage prepaid and addressed
to the party as set forth below or (b) the receiving party delivers a written
confirmation of receipt for such notice by any other method permitted under this
paragraph; and further provided that any notice given by facsimile received
after 5:00 p.m. (recipient's time) or on a non-business day shall be deemed
received on the next business day; (iii) five (5) business days after deposit in
the United States mail, certified, return receipt requested, postage prepaid,
and addressed to the party as set forth below; or (iv) the next business day
after deposit with an international overnight delivery service, postage prepaid,
addressed to the party as set forth below with next business day delivery
guaranteed; provided that the sending party receives confirmation of delivery
from the delivery service provider.
5.3 NO RIGHTS AS SHAREHOLDER; LIMITATION OF LIABILITY. This Warrant shall not
entitle the Holder to any of the rights of a shareholder of the Company except
upon exercise in accordance with the terms hereof. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no mere enumeration herein of the rights or privileges of the Holder, shall
give rise to any liability of the Holder for the Warrant Price hereunder or as a
shareholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
5.4 GOVERNING LAW. This Warrant shall be governed by and construed in accordance
with the laws of the State of California as applied to agreements among
California residents made and to be performed entirely within the State of
California, without giving effect to the conflict of law principles thereof.
5.5 BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets and/or securities. All of the
obligations of the Company relating to the Shares issuable upon the exercise of
this Warrant shall survive the exercise and termination of this Warrant. All of
the covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
5.6 WAIVER, AMENDMENTS AND HEADINGS. This Warrant and any provision hereof may
be changed, waived, discharged or terminated only by an instrument in writing
signed by both parties (either generally or in a particular instance and either
retroactively or prospectively). The headings in this Warrant are for purposes
of reference only and shall not affect the meaning or construction of any of the
provisions hereof.
5.7 JURISDICTION. Each of the parties irrevocably agrees that any and all suits
or proceedings based on or arising under this Agreement may be brought only in
and shall be resolved in the federal or state courts located in the City of Los
Angeles, California and consents to the jurisdiction of such courts for such
purpose. Each of the parties irrevocably waives the defense of an inconvenient
forum to the maintenance of such suit or proceeding in any such court. Each of
the parties further agrees that service of process upon such party mailed by
first class mail to the address set forth in Section 5.1 shall be deemed in
every respect effective service of process upon such party in any such suit or
proceeding. Nothing herein shall affect the right of a Holder to serve process
in any other manner permitted by law. Each of the parties agrees that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
5.8 ATTORNEYS' FEES AND DISBURSEMENTS. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party or parties shall be entitled to receive from the other party or parties
reasonable attorneys' fees and disbursements in addition to any other relief to
which the prevailing party or parties may be entitled.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer this ___ day of December, 2004.
COMPANY:
INTERNATIONAL CARD ESTABLISHMENT, INC.
BY____________________________________
PRINT NAME:___________________________
TITLE: _______________________________
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SCHEDULE A
FORM OF NOTICE OF EXERCISE
[TO BE SIGNED ONLY UPON EXERCISE OF THE WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby elects to purchase _______ shares of Common Stock (the
"Shares") of International Card Establishment, Inc. under the Warrant to
Purchase Common Stock dated September __ , 2004, which the undersigned is
entitled to purchase pursuant to the terms of such Warrant. The undersigned has
delivered $_________, the aggregate Warrant Price for _____ Shares purchased
herewith, in full in cash or by certified or official bank check or wire
transfer.
Please issue a certificate or certificates representing such shares of
Common Stock in the name of the undersigned or in such other name as is
specified below and in the denominations as is set forth below:
_______________________________________________________________________
[Type Name of Holder as it should appear on the stock certificate]
_______________________________________________________________________
[Requested Denominations - if no denomination is specified, a single
certificate will be issued]
The initial address of such Holder to be entered on the books of
Company shall be:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for his own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
Dated:____________________________________
-1-
FORM OF ASSIGNMENT
(ENTIRE)
[TO BE SIGNED ONLY UPON TRANSFER OF ENTIRE WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto _______________________________ all rights of the undersigned
under and pursuant to the within Warrant, and the undersigned does hereby
irrevocably constitute and appoint _____________________ Attorney to transfer
the said Warrant on the books of ___________________, with full power of
substitution.
___________________________________________________
[Type Name of Holder]
By:________________________________________________
Title:_____________________________________________
Dated:_____________________________________________
NOTICE
The signature to the foregoing Assignment must correspond exactly to the name as
written upon the face of the within Warrant, without alteration or enlargement
or any change whatsoever.
-1-
FORM OF ASSIGNMENT
(PARTIAL)
[TO BE SIGNED ONLY UPON PARTIAL TRANSFER OF WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto ____________________________ (i) the rights of the undersigned to
purchase ____________________ shares of Common Stock under and pursuant to the
within Warrant, and (ii) on a non-exclusive basis, all other rights of the
undersigned under and pursuant to the within Warrant, it being understood that
the undersigned shall retain, severally (and not jointly) with the transferee(s)
named herein, all rights assigned on such non-exclusive basis. The undersigned
does hereby irrevocably constitute and appoint __________________________
Attorney to transfer the said Warrant on the books of International Card
Establishment, Inc., with full power of substitution.
___________________________________________________
[Type Name of Holder]
By: _______________________________________________
Title:_____________________________________________
Dated:_____________________________________________
NOTICE
The signature to the foregoing Assignment must correspond exactly to the name as
written upon the face of the within Warrant, without alteration or enlargement
or any change whatsoever.
