Exhibit 10.52
Voting Agreement
This Voting Agreement ("Agreement") is made and entered into as of November
__, 2000 between Xxxx X. Xxxxx ("Xx. Xxxxx"), Insynq, Inc., a Delaware
corporation (the "Company"), Xxxxxxxx XxXxxxx ("XxXxxxx") and Xxxxxx Xxxxxx LLP
("HBLLP") (XxXxxxx and HBLLP are sometimes collectively referred hereunder as
the "Stockholders").
RECITALS
A. Concurrently with the execution of this Agreement, the Stockholders,
Xx. Xxxxx, Xxxxxxx Xxxxxx ("Xx. Xxxxxx"), Insynq, Inc., a Washington corporation
("Insynq I"), and the Company have entered into a Settlement Agreement of even
date herewith (the "Settlement Agreement") which provides that XxXxxxx will
receive 1,500,000 shares of Insynq II common stock, $0.001 par value, currently
held by Xx. Xxxxx (the "Release Shares"), in exchange for releasing Xx. Xxxxx,
Xx. Xxxxxx, Insynq I and Insynq II from certain claims as set forth in the
Settlement Agreement. From the Release Shares, XxXxxxx intends to transfer
350,000 shares to HBLLP (the "HB Shares") as payment for its representation of
XxXxxxx in a lawsuit styled "Xxxxxxxx XxXxxxx v. Xxxx Xxxxx, M. Xxxxxxx Xxxxxx,
Insynq, Inc, a Washington corporation and Insynq, Inc., a Delaware corporation,
In the Superior Court of Washington, In and For Xxxxxx County, Case No. 00 2
10599 7 (the "Lawsuit").
B. Upon the consummation of the transactions set forth in the Settlement
Agreement, XxXxxxx will be the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of the Release Shares less the HB Shares.
C. As a material inducement to enter into the Settlement Agreement, Xx.
Xxxxx desires XxXxxxx to agree, and XxXxxxx hereby agrees, to grant Xx. Xxxxx
irrevocable proxies giving Xx. Xxxxx the right and authority to vote all of the
Release Shares less the HB Shares owned by the XxXxxxx for as long as XxXxxxx
owns the Release Shares less the HB Shares, directly or indirectly.
D. As an additional material inducement to enter into the Settlement
Agreement, Xx. Xxxxx desires HBLLP to agree, and HBLLP hereby agrees, to grant
Xx. Xxxxx an irrevocable proxy giving Xx. Xxxxx the right and authority to vote
all of the HB Shares owned by the HBLLP for as long as HBLLP owns the HB Shares,
directly or indirectly.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, the parties agree as follows:
1. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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XxXxxxx and HBLLP are each hereby delivering to Xx. Xxxxx proxies in the forms
attached hereto as Annex A and Annex B (collectively, the "Proxies"), which
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shall be irrevocable, with respect to the total number of the Release Shares
less the HB Shares beneficially owned (as such term is defined in Rule 13d-3
under the Exchange Act) by XxXxxxx, directly or indirectly, and with respect to
the
total number of the HB Shares beneficially owned by HBLLP, directly or
indirectly, as a result of the Settlement Agreement until such date as XxXxxxx
and HBLLP, their heirs, administrators, executors, successors and assigns, shall
no longer beneficially own, directly or indirectly, any of the Release Shares or
the HB Shares (the "Termination Date"). Prior to the Termination Date, Xx. Xxxxx
shall have the right to vote all such Shares that each Stockholder or its or her
heirs, administrators, executors, successors and assigns continues to
beneficially own, directly or indirectly. The parties acknowledge and agree that
this right to vote the Release Shares less the HB Shares and the HB Shares
granted to Xx. Xxxxx hereunder and under the Proxies does not include the power
to invest or sell the Shares, which power currently belongs to XxXxxxx with
respect to the Release Shares less the HB Shares and to HBLLP with respect to
the HB Shares, and that Xx. Xxxxx does not have a pecuniary interest in the
Release Shares less the HB Shares or the HB Shares. XxXxxxx and HBLLP further
understand and agree that Xx. Xxxxx shall disclaim beneficial ownership in the
Release Shares and the HB Shares, and that XxXxxxx and HBLLP will not take any
actions contrary to such position.
Nothing in this Agreement shall be construed to limit in any way XxXxxxx'x
ability to sell or transfer any or all of the Release Shares less the HB Shares
or HBLLP's ability to sell or transfer any or all of the HB Shares; provided,
--------
however, that the restriction set forth in the Registration Rights Agreement
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attached to the Settlement Agreement as Exhibit "A" shall apply to their
respective rights to sell or transfer any or all of their Shares.
2. Notice upon Sale of the Shares. XxXxxxx hereby agrees to provide
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prompt written notice to Xx. Xxxxx of any sale or transfer of any portion of the
Release Shares less the HB Shares, but in no event later than 48 hours after
such a sale is completed. HBLLP hereby agrees to provide prompt written notice
to Xx. Xxxxx of any sale or transfer of any portion of the HB Shares, but in no
event later than 48 hours after such a sale is completed.
3. Representations, Warranties and Covenants of XxXxxxx and HBLLP.
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X. XxXxxxx and HBLLP each hereby represent, warrant and covenant to Xx.
Xxxxx and the Company as follows:
(i) Authority. XxXxxxx and HBLLP each has full power and authority
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to make, enter into and carry out the terms of this Agreement and the
Proxies.
(ii) Review by Attorney. XxXxxxx and HBLLP acknowledge that this
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Agreement has been reviewed by their own attorneys and that each
understands the implications of entering into this Agreement.
(iii) No Reliance. Neither XxXxxxx nor HBLLP have relied, in
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connection with this transaction, upon any statements, representations,
warranties or agreements other than those set forth in the documents
referred to in this Agreement.
(iv) Distribution. XxXxxxx represents that there is no current plan
------------
or intention by her to sell, exchange or otherwise dispose of any of the
Release Shares, other than the plan to transfer the HB Shares to HBLLP,
effective as of the date hereof. HBLLP
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represents that there is no current plan or intention by it to sell,
exchange or otherwise dispose of any of the HB Shares.
B. HBLLP further represents and warrants as follows to Xx. Xxxxx and the
Company:
(i) HBLLP understands that the HB Shares are being transferred to
it in reliance upon the exemptions provided in the Securities Act of 1933,
as amended (the "Securities Act").
(ii) HBLLP has read and fully understands the public information and
filings of the Company on file with the Securities and Exchange Commission
("SEC"). HBLLP has received or had access to all information which it
considers necessary or advisable to enable it to make a decision concerning
its acquisition of the HB Shares.
(iii) HBLLP understands and acknowledges that: (a) while the Company
has an operating history, the acquisition of the HB Shares by HBLLP
involves a high degree of risk of loss of HBLLP's entire investment, and
there is no assurance of any income from such investment; (b) HBLLP must
bear the economic risk of an investment in the HB Shares for an indefinite
period because the offer and sale of the HB Shares has not been registered
under the Securities Act or any state securities laws and has been offered
and sole in reliance upon exemptions provided in the Securities Act and
state securities laws for transactions not involving any public offering
and, therefore, cannot be resold or transferred unless the HB Shares are
subsequently registered under the Securities Act and applicable state laws,
or unless an opinion of counsel satisfactory to the Company and its
counsel, is received by the Company stating that an exemption from such
registration is available; (c) HBLLP is accepting the HB Shares for
investment purposes only for HBLLP's account and not for the benefit of any
other person or with any view toward the resale or distribution thereof;
(d) because there are substantial restrictions on the transferability of
the HB Shares, it may not be possible for HBLLP to liquidate an investment
therein readily in case of an emergency; and (e) HBLLP has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else any of the HB Shares which HBLLP
hereby subscribes to purchase or any part thereof, and HBLLP has no present
plans to enter into any such contract, undertaking, agreement or
arrangement.
(iv) HBLLP is an "accredited investor" within the meaning of
Regulation D promulgated under the Securities Act.
(v) HBLLP is knowledgeable and experienced in evaluating
investments and is experienced in financial and business matters and it has
evaluated the risks of investing in the HB Shares, and has determined that
the HB Shares are a suitable investment for it. HBLLP can bear the economic
risk of an investment in the HB Shares and has a sufficient net worth to
sustain a complete loss of its investment.
(vi) HBLLP understands that the certificates representing the HB
Shares will bear a legend to the effect that the HB Shares are restricted
and may not be resold or
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transferred unless the HB Shares are registered under the Securities Act
and applicable state laws or unless an opinion of counsel satisfactory to
the Company and its counsel is received by the Company stating that an
exemption from such registration is available.
4. Additional Documents. XxXxxxx and HBLLP hereby covenant and agree to
--------------------
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Xx. Xxxxx and his counsel, to carry out the intent of this
Agreement. If the Proxies shall expire or terminate for any reason prior to the
Termination Date, XxXxxxx agrees to enter into additional proxies in
substantially the same form as the Annex A attached hereto until she no longer
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beneficially owns any Release Shares less the HB Shares, directly or indirectly,
and HBLLP agrees to enter into additional proxies in substantially the same form
as the Annex B attached hereto until it no longer beneficially owns any HB
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Shares, directly or indirectly.
5. Term. This Agreement and the Proxies delivered in connection herewith
----
shall terminate and shall have no further force or effect on and as of the
Termination Date.
6. General.
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(a) Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of the
-----------------------------
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, administrators, executors,
successors and permitted assigns, but, except as otherwise specifically
provided herein, neither this Agreement nor any of the rights, interests or
obligations of the parties hereto may be assigned by either of the parties
without prior written consent of the other. This subdivision does not
apply to shares of the Release Shares or the HB Shares sold through a
permitted brokerage transaction as allowed under applicable law and the
Registration Rights Agreement.
(c) Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
---------------------------------------
acknowledge that Xx.Xxxxx and the Company will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of XxXxxxx or HBLLP set forth herein. Therefore, it
is agreed that, in addition to any other remedies that may be available to
Xx. Xxxxx or the Company, upon any such violation, Xx. Xxxxx or the
Company, shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Xx. Xxxxx or the Company, at law or in equity.
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(e) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
If to Xx. Xxxxx or the Company: Insynq, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
If to XxXxxxx: Xxxxxxxx XxXxxxx
0000 Xxxxxxxxx Xxxx XX, #X
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
If to HBLLP: Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
8.6 Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
8.7 Entire Agreement. This Agreement contains the entire understanding of
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the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
8.8 Counterparts; Facsimile Signatures. This Agreement may be executed in
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several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement. Each party to this Voting
Agreement agrees that it will be bound by its own telecopy signature and that it
accepts the telecopy signature of each other party to this Agreement.
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8.9 Effect of Headings. The section headings herein are for convenience
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only and shall not affect the construction of interpretation of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
GORST
________________________________
Xxxx X. Xxxxx
INSYNQ, INC.
By: ___________________________
Its: ___________________________
XXXXXXX
/s/ Xxxxxxxx XxXxxxx
--------------------------------
Xxxxxxxx XxXxxxx
HBLLP
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Its: Partner
----------------------------
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ANNEX A
IRREVOCABLE PROXY
Xxxxxxxx XxXxxxx ("XxXxxxx") hereby irrevocably appoints Xxxx X. Xxxxx
("Xx. Xxxxx") as the sole and exclusive attorney and proxy of XxXxxxx, with full
power of substitution and resubstitution, to the full extent of XxXxxxx'x rights
with respect to the 1,150,000 shares (the "Release Shares less the HB Shares")
of capital stock of Insynq, Inc., a Delaware corporation ("Insynq"),
beneficially owned by XxXxxxx, and any and all other shares or securities issued
or issuable in respect thereof on or after the date hereof, until XxXxxxx and/or
her heirs, administrators, executors, successor and assigns shall no longer
beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act)
any of the Release Shares less the HB Shares ("Termination"). Prior to the
Termination, this proxy shall represent Xx. Xxxxx'x right to vote such Release
Shares less the HB Shares that XxXxxxx and/or her heirs, administrators,
executors, successors and assigns continues to beneficially own, directly or
indirectly. Upon the execution hereof, all prior proxies given by XxXxxxx with
respect to the Release Shares less the HB Shares, if any, and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof are hereby revoked and no subsequent proxies will be given with respect
to the Release Shares less the HB Shares prior to Termination.
This proxy is irrevocable, is granted pursuant to the Settlement Agreement
dated as of November _____, 2000 between Xx. Xxxxx and XxXxxxx and certain other
parties (the "Settlement Agreement"), and is granted in consideration of Xx.
Xxxxx entering into the Settlement Agreement and all Exhibits attached thereto.
Xx. Xxxxx and XxXxxxx agree and acknowledge that the grant of this irrevocable
proxy is a material inducement for Xx. Xxxxx to enter into the Settlement
Agreement and is therefore coupled with an interest and is irrevocable. Xx.
Xxxxx will be empowered at any time prior to Termination, to exercise all voting
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Release Shares less the HB Shares) of the
undersigned to the Release Shares less the HB Shares that XxXxxxx and/or her
heirs, administrators, executors, successors and/or assigns continues to
beneficially own, directly or indirectly, at every annual, special or adjourned
meeting of Insynq stockholders, and in every written consent in lieu of such a
meeting, or otherwise, as Xx. Xxxxx determines, in his sole and absolute
discretion. The powers represented by this proxy do not include the power to
invest, sell or transfer the Release Shares.
Nothing in this Proxy shall be construed to limit in any way XxXxxxx'x
ability to sell or transfer any or all of the Release Shares less the HB Shares;
provided, however, that the restrictions set forth in the Registration Rights
Agreement attached to the Settlement Agreement as Exhibit "A", as well as
applicable federal and state law, shall apply to XxXxxxx'x right to sell or
transfer any or all of the Release Shares less the HB Shares.
Xx. XxXxxxx agrees that she will be bound by her own telecopy signature to
this Proxy.
Any obligation of the undersigned hereunder shall be binding upon the
heirs, administrators, executors, successors and/or assigns of the undersigned;
provided, however, that this provision does not apply to any of the Release
Shares sold through a permitted brokerage transaction allowed under the
Registration Rights Agreement and applicable law.
This proxy is irrevocable and is coupled with an interest.
(Signature Page Follows)
Dated: November __, 2000.
XxXxxxx
/s/ Xxxxxxxx XxXxxxx
-----------------------------------
Xxxxxxxx XxXxxxx
XxXxxxx'x Address for Notice:
Xxxxxxxx XxXxxxx
0000 Xxxxxxxxx Xxxx XX, #X
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
ANNEX B
IRREVOCABLE PROXY
Xxxxxx Xxxxxx LLP ("HBLLP") hereby irrevocably appoints Xxxx X. Xxxxx ("Xx.
Xxxxx") as the sole and exclusive attorney and proxy of BHLLP, with full power
of substitution and resubstitution, to the full extent of HBLLP's rights with
respect to the 350,000 shares (the "HB Shares") of capital stock of Insynq,
Inc., a Delaware corporation ("Insynq"), beneficially owned by HBLLP, and any
and all other shares or securities issued or issuable in respect thereof on or
after the date hereof, until HBLLP and/or its heirs, administrators, executors,
successors and assigns shall no longer beneficially own (as such term is defined
in Rule 13d-3 under the Exchange Act) any of the HB Share ("Termination").
Prior to the Termination, this proxy shall represent Xx. Xxxxx'x right to vote
such HB Shares that HBLLP and/or its heirs, administrators, executors,
successors and assigns continues to beneficially own, directly or indirectly.
Upon the execution hereof, all prior proxies given by HBLLP with respect to the
HB Shares, if any, and any and all other shares or securities issued or issuable
in respect thereof on or after the date hereof are hereby revoked and no
subsequent proxies will be given with respect to the HB Shares prior to
Termination.
This proxy is irrevocable, is granted pursuant to the Settlement Agreement
dated as of November _____, 2000 between Xx. Xxxxx and Xxxxxxxx XxXxxxx and
certain other parties (the "Settlement Agreement"), and is granted in
consideration of Xx. Xxxxx entering into the Settlement Agreement and all
Exhibits attached thereto. Xx. Xxxxx and HBLLP agree and acknowledge that the
grant of this irrevocable proxy is a material inducement for Xx. Xxxxx to enter
into the Settlement Agreement and is therefore coupled with an interest and is
irrevocable. Xx. Xxxxx will be empowered at any time prior to Termination, to
exercise all voting rights (including, without limitation, the power to execute
and deliver written consents with respect to the HB Shares) of the undersigned
to the HB Shares that HBLLP continues to beneficially own, directly or
indirectly, at every annual, special or adjourned meeting of Insynq
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, as Xx. Xxxxx determines, in his sole and absolute discretion. The
powers represented by this proxy do not include the power to invest, sell or
transfer the HBLLP Shares.
Nothing in this Proxy shall be construed to limit in any way XxXxxxx'x
ability to sell or transfer any or all of the Release Shares less the HB Shares;
provided, however, that the restrictions set forth in the Registration Rights
Agreement attached to the Settlement Agreement as Exhibit "A", as well as
applicable federal an state law, shall apply to XxXxxxx'x right to sell or
transfer any or all of the Release Shares less the HB Shares.
HBLLP agrees that it will be bound by the telecopy signature of its
representative to this Proxy.
Any obligation of the undersigned hereunder shall be binding upon the
heirs, executors, administrators, successors and/or assigns of the undersigned;
provided, however, that this provision does not apply to any of the HB Shares
sold through a permitted brokerage transaction allowed under the Registration
Rights Agreement and applicable law.
This proxy is irrevocable and is coupled with an interest.
(signature page follows)
Dated: December 1, 2000.
HBLLP
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
By: _____________________________
Its: Partner
----------------------------
HBLLP's Address for Notice:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
