WARRANT TO PURCHASE
COMMON STOCK OF
APTUS, CORP.
_______________________________________________
Dated: February 1, 2004
______________________________________________________________________________
NEITHER THE SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF, IF ANY, MAY NOT BE SOLD OR TRANSFERRED
EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION THAT REGISTRATION
IS NOT REQUIRED FOR SUCH SALE OR TRANSFER.
Warrant to Purchase
219,706 Shares of
Common Stock
WARRANT TO PURCHASE COMMON STOCK
APTUS, CORP.
Dated as of the 1st day of February 2004
WHEREAS, the undersigned desires to acquire for investment purposes
this Warrant to Purchase Common Stock providing for the acquisition of up to
219,705 shares of common stock, $0.001 par value per share (the "Common Stock"),
of Aptus, Corp. (the "Company"), subject to adjustment as provided herein.
NOW, THEREFORE, for and in consideration of past service and of the
mutual covenants, representations, warranties and agreements contained herein,
this is to certify that:
1. The undersigned or its permitted and registered assigns ("Holder"), is
entitled to purchase from time to time, subject to the provisions and
conditions herein, not later than the termination of the Exercise
Period of this Warrant to Purchase Common Stock (this "Warrant") as set
forth in PARAGRAPH 4 below, an aggregate of 219,706 shares of Common
Stock, at the Exercise Price per share set forth in PARAGRAPH 2(C)
herein, and upon such purchase to receive a certificate or certificates
representing such shares of Common Stock. The number of shares of
Common Stock to be received upon the exercise of this Warrant may be
adjusted from time to time as hereinafter set forth.
2. DEFINED TERMS. As used in this Warrant, the following capitalized terms
shall have the meanings respectively assigned to them below, which
meanings shall be applicable equally to the singular and plural forms
of the terms so defined.
(a) "BUSINESS DAY" shall mean any day except a Saturday, Sunday or other
day on which commercial banks in the State of Washington are authorized
or required by law to close.
(b) "EXERCISE PERIOD" means the period commencing on the date of this
Warrant and terminating at 5:00 p.m., Tacoma, Washington time, on
January 31, 2009 or, in the event that January 31, 2009 is not a
Business Day, the Business Day next following.
(c) "EXERCISE PRICE" shall mean a strike price of $0.0095 per share.
(d) "HOLDER" shall mean the Person(s) then registered as the owner of the
Warrant or Warrant Securities, as the case may be, on the books and
records of the Company.
(e) "PERSON" shall mean any natural person, corporation, limited
partnership, limited liability company, general partnership, joint
venture, association, company, or other organization, whether or not a
legal entity, and any government agency or political subdivision
thereof.
(f) "WARRANT SECURITIES" shall mean the shares of Common Stock (or other
securities) of the Company purchasable or purchased from time to time
under this Warrant or acquired upon any transfer of any such shares,
together with all additional securities received in payment of
dividends or distributions on or splits of those securities or received
as a result of the adjustments provided for in PARAGRAPH 6 hereof.
3. EXERCISE OF WARRANT. Subject to and in accordance with the provisions
and conditions hereof, this Warrant may be exercised from time to time
in whole or in part during the term of this Warrant as set forth in
PARAGRAPH 5 hereof.
4. TERM OF WARRANT. The term of this Warrant shall commence on the date
hereof and shall expire on the exercise in full of this Warrant by
Holder or at 5:00 p.m. Tacoma, Washington time on the expiration of the
Exercise Period.
5. MANNER OF EXERCISE. Holder may exercise this Warrant in whole or in
part in accordance with the terms hereof by mailing or personally
delivering to the Company (i) this Warrant, (ii) a Notice of Exercise
in the form of EXHIBIT I hereto duly executed by Holder and (iii)
payment of the Exercise Price per share, such payment to be in the form
of: (a) cash, a certified or official bank check made payable to the
Company, or a wire transfer of funds to an account designated by the
Company, or any combination of the foregoing, together with all federal
and state excise taxes applicable upon such exercise; (b) by crediting
amounts due and owing to the Holder by the Company for professional
services previously rendered by the Holder as of the date of each
exercise of the Warrant by Holder as provided for herein. . Upon
receipt by the Company of this Warrant, the Notice of Exercise and such
payment, this Warrant shall be deemed to have been exercised with
respect to the number of shares of Common Stock subject to such
exercise and specified in the Notice of Exercise, and Holder shall
thereupon become the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding the fact that the stock
transfer books of the Company may then be closed or that certificates
representing such shares of Common Stock shall not then be actually
delivered to Holder. As soon as practicable after any exercise, in
whole or in part, of the Warrant, and in any event within ten (10)
Business Days thereafter, the Company will deliver to Holder a stock
certificate or certificates representing the shares of Common Stock so
purchased, with such certificate or certificates to be in such name(s)
and such denominations as Holder may specify in the Notice of Exercise.
If this Warrant is exercised for less than all of the shares of Common
Stock subject hereto, the Company shall, upon such exercise and
surrender of this Warrant for cancellation, promptly execute and
deliver to Holder a new Warrant of like tenor evidencing the right of
Holder to purchase the balance of shares of Common Stock purchasable
hereunder.
6. ADJUSTMENT PROVISIONS.
(a) If the Company shall, during the term hereof, (i)
declare a dividend and make a distribution on the Common Stock payable in shares
of Common Stock, (ii) subdivide or combine its outstanding shares of Common
Stock, (iii) change the number of shares of Common Stock issuable upon exercise
of this Warrant by reclassification, exchange or substitution, or (iv)
reorganize the capital structure of the Company by merger, reorganization,
consolidation or sale of assets, then this Warrant shall, after the happening of
any such event, evidence the right to purchase the number of shares of Common
Stock or other securities that would have been received as a result of that
change with respect to the shares of Common Stock as if such shares had been
purchased under this Warrant immediately before occurrence of such event. Such
adjustment shall be made successively whenever any event listed above shall
occur. Any adjustment under this subparagraph (a) shall become effective at the
close of business on the date any such event occurs (the "Adjustment Date").
(b) If, during the term of this Warrant, the number of
shares of Common Stock of the Company is adjusted pursuant to subparagraph (a)
above, then the Exercise Price per share to be in effect after such Adjustment
Date shall be determined by multiplying the Exercise Price per share in effect
immediately prior to such Adjustment Date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding at the closing of
business on the Business Day immediately preceding such Adjustment Date and the
denominator of which shall be the number of shares of Common Stock (or the
equivalent amount of other securities) outstanding at the opening of business on
the first Business Day after the Adjustment Date.
(c) NOTICE OF ADJUSTMENT. The Company shall give notice
of each adjustment or
readjustment of the number of shares of Common Stock or other securities
issuable upon exercise of this Warrant to Holder or of the Exercise Price per
share at the address set forth in PARAGRAPH 17 hereof.
7. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued in connection with
the exercise of this Warrant, but the Company shall pay, in lieu of any
fractional share, a cash payment on the basis of the Exercise Price per
share of the Common Stock to be acquired pursuant to such exercise for
such fractional share.
8. RESTRICTIONS ON TRANSFER. The undersigned represents and warrants that
this Warrant, and the Warrant Securities acquired pursuant to the
exercise of this Warrant, are being purchased for his investment
account without a view towards the resale or distribution thereof in
violation of applicable securities laws. It is understood that in case
of subsequent sale of such Warrant or the Warrant Securities under
certain circumstances, such sale might be deemed to constitute a public
distribution within the meaning of, and require registration under, the
provisions of the Securities Act of 1933, as amended (the "Act").
(a) The undersigned acknowledges and agrees that unless and until the
Warrant and the Warrant Securities are registered under the Act, this
Warrant and the Warrant Securities shall be "restricted securities" for
purposes of Rule 144 under the Act. The undersigned shall, prior to any
transfer or disposition or attempted transfer or disposition of the
Warrant or the Warrant Securities give written notice to the Company of
his intention to effect such transfer or disposition and shall deliver
to the Company an opinion of legal counsel (such counsel and opinion to
be reasonably satisfactory to the Company) that the proposed transfer
or disposition of the Warrant or the Warrant Securities may be effected
without registration thereof under the Act and without taking any
similar action under any other applicable securities laws, in which
case the undersigned shall be entitled to transfer or dispose of the
Warrant or the Warrant Securities, as applicable, in accordance with
the terms of the notice delivered by such Holder to the Company. Until
the Warrant Securities are registered under the Act, each certificate
evidencing the Warrant Securities so transferred or disposed of (and
each certificate evidencing any untransferred Warrant Securities) shall
bear the following restrictive legend unless in the opinion of Company
counsel such legend is not required:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or any state securities laws. These shares may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act
or pursuant to an opinion of counsel delivered to the Company
that an exemption from such registration is available for such
sale and transfer."
(b) Until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder thereof as the absolute owner
thereof for all purposes, notwithstanding any notice to the contrary.
(c) The undersigned understands and acknowledges that: (i) while the
Company
has an operating history, the Warrant and the Warrant Securities
involve a high degree of risk of loss of the entire investment, and
there is no assurance of any income from such investment; (ii) the
Holder must bear the economic risk of an investment in the Warrant and
the Warrant Securities for an indefinite period because the offer and
sale of the Warrant and the Warrant Securities have not been registered
under the Act or any state securities laws and are being offered and
sold in reliance upon exemptions provided under the Act and state
securities laws for transactions not involving any public offering and,
therefore, cannot be resold or transferred unless they are subsequently
registered under the Act and applicable state laws, or unless an
exemption from such registration is available; (iii) there may not be a
public market for the Warrant or the Warrant Securities in the future;
(iv) the Holder is purchasing the Warrant and the Warrant Securities
for investment purposes only for the Holder's account and not for the
benefit of any other person or with any view toward the resale or
distribution thereof; and (v) the Holder has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to
such person or anyone else the Warrant or any of the Warrant Securities
which the Holder is hereby purchasing or any part thereof, and the
Holder has no present plans to enter into any such contract,
undertaking, agreement or arrangement.
9. STOCK TO BE DELIVERED UPON EXERCISE. The Company will at all times keep
available through the term of the Exercise Period, solely for delivery upon the
exercise of this Warrant, such number of the shares of Common Stock or other
securities as shall from time to time be sufficient to effect the exercise of
this Warrant.
10. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of this
Warrant, the Company will execute and deliver, in lieu thereof, a new warrant of
like tenor to Holder.
11. SPECIFIC PERFORMANCE. The Company stipulates that the remedies at law
available to the holder of this Warrant in the event of any default or
threatened default by it in the performance of or compliance with any of the
terms of the Agreement are not and will not be adequate, and that such terms may
be specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
12. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CHOICE OF LAWS OF SUCH STATE.
13. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all
prior agreements and understandings relating to the subject matter hereof. This
Warrant and any of the terms hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
14. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon and inure to the
benefit of the Company and the undersigned and their respective successors and
permitted assigns; provided, however, nothing herein shall be construed to
permit assignment of the Warrant except in accordance with the provisions
herein.
15. SEVERABILITY. Every provision of this Warrant is intended to be severable.
If any term or provision hereof (or portion thereof) is determined to be illegal
or unenforceable for any reason whatsoever, such illegality or unenforceability
shall not affect any other term or provision (or portion thereof) of this
Warrant.
16. NOTICES. All notices and other communications from the Company to the holder
of this Warrant shall be mailed by first class registered or certified mail,
postage prepaid, at the following address or at such other address as may have
been furnished to the Company in writing by such holder, or, until an address is
so furnished, to the address of the last holder of such Warrant who has so
furnished an address to the Company:
If to the Company:
Aptus, Corp.
1127 Broadway Plaza #203
Tacoma, Washington 98402
Telecopy No.: (253) 722-5605
If to Holder:
Glenn Paul
____________________________
____________________________
IN WITNESS WHEREOF, this Warrant has been executed by Aptus, Corp., by
its duly authorized officers, as of the date first above written.
APTUS CORP.
By: /s/ John P. Gorst
Name: John P. Gorst
Title: Chief Executive Officer
The terms and provisions of the Warrant are accepted and agreed to by
the undersigned effective as of the 1st day of February 2004.
Glenn Paul
By: /s/ Glenn Paul
Name: Glenn Paul
Title: __________________________________
EXHIBIT "I" - Page 1
EXHIBIT "I"
NOTICE OF EXERCISE
(To be executed by Holder to exercise the
Warrant in whole or in part)
Aptus, Corp.
1127 Broadway Plaza #203
Tacoma, Washington 98402
Re: Warrant to Purchase Common Stock dated February 1, 2004 by and between
the Company and Glenn Paul (the "Warrant")
Dear Sir or Madam:
The undersigned holder irrevocably elects to exercise the Warrant of
Insynq, Inc. to purchase shares of Common Stock of Insynq, Inc. (the "Company")
subject to the Warrant, and hereby makes payment of the amount of $________in
the manner described below, representing the Exercise Price per share of Common
Stock multiplied by the number of shares of Common Stock to be purchased
pursuant to this exercise.
By:
$__________cash
$__________certified or bank cashier's check
$__________wire transfer