Mark Levin./$0.002 per share.
WARRANT TO PURCHASE
COMMON STOCK OF
APTUS, CORP.
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Dated: February 1, 2004
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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.
-2-
Warrant to Purchase
42,000 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 42,000
shares of common stock, $0.002 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 42,000 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, 2004 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 $0.002 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:
Mark Levein
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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.
MARK LEVIN
By: /s/ Mark Levin
Name: Mark Levin
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 Mark Levin (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 $________in
the manner described below, representing the Exercise Price per share of Common
Stock multiplied by the number of shares of Common Stock to be purchased
pursuant to this exercise.
By:
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$__________cash
$__________certified or bank cashier's check
$__________wire transfer