EXHIBIT 10.23
THIS WARRANT IS NON-TRANSFERABLE. THIS WARRANT AND THE SECURITIES ACQUIRABLE
UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. SECURITIES ACQUIRABLE
UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION FROM
REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY, THE SECURITIES ACQUIRABLE
UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF WITHOUT (I) AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO NS8
CORPORATION THAT SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS OR (II) SUCH REGISTRATION.
[NS8 LOGO - GRAPHIC OMITED]
NON-TRANSFERABLE WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
For value received, MAXIMUM VENTURES, INC., its successors or assigns
("Holder"), is entitled to purchase from NS8 Corporation, a Delaware
corporation, at Two Union Square, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx
Xxxxxxxxxx, XXX 00000 (the "Company"), up to 5,439,501 fully paid and
nonassessable shares of the Company's Common Stock or such greater or lesser
number of such shares as may be determined by application of the adjustment
provisions of Section 3 of this warrant, at the price of US$2.00 per share until
5:00 p.m. Seattle, Washington time on May 18, 2006 (the "warrant exercise
price").
This warrant is subject to the following terms and conditions:
1. Exercise. The rights represented by this warrant may be exercised
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by the Holder, in whole or in part, by written election, in the form set forth
below, by (i) the surrender of this warrant (properly endorsed if required) at
the principal office of the Company, (ii) payment to it by cash, certified check
or bank draft of the warrant exercise price for the shares to be purchased and
(iii) delivery of (A) a written opinion of counsel or other evidence
satisfactory to the Company to the effect that the warrants and the shares
issuable upon exercise of this warrant have been registered under the Securities
Act of 1933, as amended (the "Securities Act") and applicable state securities
laws or are exempt from registration thereunder or (B) the representation that
at the time this warrant is exercised by the original purchaser of this warrant
from the Company such Holder's representations and warranties made to the
Company in the Subscription Agreement remain true, accurate and correct as of
the date of exercise. The shares so purchased shall be deemed to be issued as
of the close of business on the date on which this warrant has been exercised by
payment to the Company of the warrant exercise price. Certificates for the
shares of stock so purchased, bearing an appropriate restrictive legend, shall
be delivered to Holder within 15 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, if any, with respect to which
this warrant has not been exercised shall also be delivered to Holder hereof
within such time. No fractional shares shall be issued upon the exercise of
this warrant.
2. Shares. All shares of Common Stock (the "Shares") that may be
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issued upon the exercise of the rights represented by this warrant shall, upon
issuance, be duly authorized and issued, fully paid and nonassessable shares.
During the period within which the rights represented by this warrant may be
exercised, the Company shall at all times have authorized and reserved for the
purpose of issue or transfer upon exercise of the subscription rights evidenced
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by this warrant a sufficient number of shares of its Common Stock to provide for
the exercise of the rights represented by this warrant.
The Shares to be issued to the Holder upon exercise of the rights
represented by this warrant shall be issued pursuant to an exemption from
registration under the Securities Act and applicable securities law. As such,
the Shares are "restricted securities" within the meaning of Rule 144 of the
Securities Act, and the share certificates representing the Shares are to be
legended as follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THESE
SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO
THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS (C) IN COMPLIANCE
WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT
PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT
REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS AND
REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES, AND THE HOLDER HAS,
PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL, OF
RECOGNIZED STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO
THE COMPANY. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.
3. Adjustment. The warrant exercise price shall be subject to adjustment
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from time to time as hereinafter provided in this Section 3:
(a) If the Company at any time divides the outstanding shares of its
Common Stock into a greater number of shares (whether pursuant to a stock split,
stock dividend or otherwise), and conversely, if the outstanding shares of its
Common Stock are combined into a smaller number of shares, the warrant exercise
price in effect immediately prior to such division or combination shall be
proportionately adjusted to reflect the reduction or increase in the value of
each such share of Common Stock.
(b) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of the Company's Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for such common stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the Holder
shall have the right to purchase and receive upon the basis and upon the terms
and conditions specified in this warrant and in lieu of the shares of the common
stock of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby, such shares of stock, other
securities or assets as would have been issued or delivered to Holder if Holder
had exercised this warrant and had received such shares of common stock
immediately prior to such reorganization, reclassification, consolidation,
merger or sale. The Company shall not effect any such consolidation, merger or
sale unless prior to the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument executed
and mailed to Holder at the last address of Holder appearing on the books of the
Company the obligation to deliver to Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, Holder may be entitled
to purchase.
(c) Upon each adjustment of the warrant exercise price,
Holder shall thereafter be entitled to purchase, at the warrant exercise price
resulting from such adjustment, the number of shares obtained by multiplying the
warrant exercise price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the warrant exercise price
resulting from such adjustment.
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(d) Upon any adjustment of the warrant exercise price, the Company
shall give written notice thereof to Holder stating the warrant exercise price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of this warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
4. No Rights as Shareholder. This warrant shall not entitle Holder to
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any rights as a shareholder of the Company.
5. Transfer. This Warrant may not be transferred or assigned in whole
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or in part.
6. Notices. All demands and notices to be given hereunder shall be
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delivered or sent by first class mail, postage prepaid; in the case of the
Company, addressed to its corporate headquarters, Two Union Square, 000 Xxxxx
Xxxxxx Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, XXX, 00000, until a new address shall
have been substituted by like notice; and in the case of Holder, addressed to
Holder at the address written below, until a new address shall have been
substituted by like notice.
7. Governing Law. This Warrant shall be interpreted and construed in
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accordance with and pursuant to the laws of the State of Washington without
giving effect to principles of conflicts of laws. The parties hereto submit to
the exclusive jurisdiction of the state and federal courts situated in King
County in the state of Washington for all disputes arising with respect to this
Warrant.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed and
delivered by a duly authorized officer.
Dated: May 18, 2004
NS8 CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
Its: CEO
_________________________________
(Name of Warrant Holder)
_________________________________
Print Address
_________________________________
Email
_________________________________
Social Security Number
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WARRANT EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THIS WARRANT)
The undersigned, the Holder of the foregoing warrant, hereby irrevocably elects
to exercise the purchase right represented by such warrant for, and to purchase
thereunder, __________ shares of Common Stock of NS8 Corporation, to which such
warrant relates and herewith makes payment of $__________ therefor in cash,
certified check or bank draft and requests that the certificates for such shares
be issued in the name of, and be delivered to ___________________, whose address
is set forth below the signature of the undersigned.
The undersigned represents that it acquired the warrant pursuant to an Exclusive
Advisory Agreement made between NS8 Corporation and Maximum Ventures, Inc. and
dated May 18, 2004.
Dated:
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Signature
If shares are to be issued other than to Holder:
Social Security or Tax Identification No.
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Please print present name and
address
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