EXHIBIT 4.29
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of November
1, 2000 by and between Insynq, Inc., a Delaware corporation (the "Company"), and
International Fluid Dynamics, Inc.. ("IFD").
WHEREAS, the Company has issued that certain Promissory Note dated as of
July 17, 2000 (the "Note") under which IFD has loaned the Company $127,500; and
WHEREAS, the parties agree that it will be less burdensome and more
administratively feasible for the Company, in exchange for canceling IFD's right
to receive payment under the Note, which is due and payable on March 1, 2001, to
issue 255,000 shares of its Common Stock to IFD at an agreed to, arms-length
negotiated value of $0.50 per share (the "Conversion Shares"); and
WHEREAS, on July 17, 2000, the parties also executed a Warrant Agreement
under which IFD was issued warrants to purchase 325,000 shares of Common Stock
of the Company at an exercise price of $2.00 per share, which included piggyback
registration rights for the Common Stock (the "Warrant Agreement"); and
WHEREAS, the parties desire to fix the exercise price under the Warrant
Agreement at $0.50.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Conversion of Shares. The Note under which IFD has the right to
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receive payment from the Company on March 1, 2001, is hereby converted
into 255,000 shares of Common Stock pursuant to an agreed-to value of
$0.50 per share. Such shares shall be issued upon the execution of
this Agreement by IFD and the return of the $127,500 Note to the
Company.
2. Warrant Exercise Price. The exercise price to purchase 325,000 shares
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of Common Stock under the Warrant Agreement held by IFD shall be fixed
at $0.50 per share.
3. Registration Rights. The 255,000 shares issued pursuant to this
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Agreement and the shares of Common Stock underlying the Warrants are
hereby granted the registration rights set forth under the Warrant
Agreement, pursuant to which the Company will promptly file a
registration statement with the SEC.
4. Certain Acknowledgements and Agreements of IFD. IFD hereby
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acknowledges and agrees that:
(a) All documents pertaining to the investment in the Shares have been
made available for inspection by the Company, and the books and records of
the Company will be available, upon reasonable notice, for inspection by
IFD during reasonable business hours at the Company's principal place of
business.
(b) NO FEDERAL OR STATE AUTHORITY HAS MADE ANY FINDINGS OR DETERMINATIONS
TO THE FAIRNESS FOR INVESTMENT IN THE SHARES, AND NO FEDERAL OR STATE
AUTHORITY HAS RECOMMENDED OR ENDORSED OR WILL RECOMMEND OR ENDORSE THE
PLACEMENT.
(c) The issuance of the Shares was made only through direct, personal
communication between IFD and an authorized representative of the Company.
(d) IFD agrees not to sell nor attempt to sell all or any part of the
Shares allocated to IFD unless the offer and sale of such Shares have first
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and all applicable state securities laws, or the
undersigned furnishes, at the option of the Company, an opinion of counsel
satisfactory to the Company and its counsel and knowledgeable as to the
securities matters stating that exemptions from such registration
requirements are available and that the proposed sale is not, and will not
place the Company or any affiliate thereof, in violation of any applicable
Federal or state securities law, or any rule or regulation promulgated
thereunder.
(e) The certificate evidencing Shares shall bear a legend substantially as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. AS A
PREREQUISITE TO ANY TRANSFER OF SHARES WITHOUT SUCH
REGISTRATION, THE CORPORATION MAY REQUIRE THAT IT BE
FURNISHED AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT SUCH TRANSFER DOES NOT REQUIRE SUCH
REGISTRATION.
5. Representations and Warranties of IFD. IFD understands that
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the Shares are being sold in reliance upon the exemptions
provided in the Securities Act and/or Regulation D thereunder,
together with exemptions provided under applicable state
securities laws, for transactions involving limited offers and
sales, and IFD, for itself and for his heirs, personal
representatives, successors and assigns, makes the following
representations, declarations and warranties with the intention
that the same may be relied on by the Company in determining the
suitability of IFD as an investor in the Company:
(a) IFD has consulted its attorney, accountant or investment
advisor with respect to the investment contemplated hereby and
its suitability for IFD. The undersigned has received no
representations or warranties from the Company or its officers,
directors, employees or agents, or any other person, and, in
making an investment decision, IFD is relying solely on
independent investigations made by IFD or representative(s) of
IFD.
(b) IFD has read and fully understands the public filings of the
Company as filed with the SEC.
(c) The Company has made available to IFD, during the course of
this transaction and prior to the purchase of any of the Shares,
the opportunity to ask questions of and receive answers from the
Company or any of its representatives concerning the Company, and
to obtain any additional information relative to the financial
condition and business of the Company, to the extent that such
parties possess such information or can acquire it without
unreasonable effort or expense. All such questions, if asked,
have been answered satisfactorily, and all such documents, if
requested, have been received and found to be fully satisfactory.
In connection therewith, IFD is not relying on any documents,
records or other information, except that contained in written
form and signed by the President of the Company.
(d) IFD understands and acknowledges that: (i) while the Company
has an operating history, the purchase of Shares by IFD involves
a high degree of risk of loss of IFD's entire investment, and
there is no assurance of any income from such investment; (ii)
IFD must bear the economic risk of an investment in the Shares
for an indefinite period because the offer and sale of the Shares
have not been registered under the Securities Act or any state
securities laws and are being offered and sold 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 they are
subsequently registered under the Securities Act and applicable
state laws, or unless an exemption from such registration is
available; (iii) there may not be a public market for the Shares
in the future; (iv) IFD is purchasing the Shares for investment
purposes only for IFD's account and not for the benefit of any
other person or with any view toward the resale or distribution
thereof; (v) because there are substantial restrictions on the
transferability of the Shares, it may not be possible for IFD to
liquidate an investment therein readily in case of an emergency;
and (vi) IFD has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or pledge to such
person or anyone else any of the Shares which IFD hereby
subscribes to purchase or any part thereof, and IFD has no
present plans to enter into any such contract, undertaking,
agreement or arrangement.
(e) The undersigned is an "accredited investor" within the
meaning of Regulation D promulgated under the Securities Act. The
net worth, annual income and total assets, as the case may be, of
IFD and the other information set
forth in Section 8 are true, correct and complete in all material
respects. Any information which IFD has heretofore furnished to
the Company with respect to IFD is correct and complete as of the
date of this Agreement, and if there should be any material
change in such information prior to the purchase of Shares, IFD
will immediately furnish such revised or corrected information to
the Company.
(f) IFD is at least 21 years of age, is knowledgeable and
experienced in evaluating investments and is experienced in
financial and business matters and he has evaluated the risks of
investing in the Shares, and has determined that the Shares are a
suitable investment for him. IFD has adequate net worth and means
of providing for his current needs and possible personal
contingencies and has no need, and anticipates no need in the
foreseeable future, to sell the Shares the purchase of which is
subscribed. IFD can bear the economic risk of an investment in
the Shares and has a sufficient net worth to sustain a complete
loss of his investment. The aggregate amount of the investments
of IFD in, and his commitments to, all similar investments that
are illiquid is reasonable in relation to his net worth.
(g) IFD maintains its domicile, and is not merely a transient or
temporary resident, at the residence address shown on the
signature page of this Agreement.
(h) IFD is a United States citizen or is otherwise a U.S.
Person/*/ as defined below.
(i) The representations, warranties, agreements and
acknowledgements made by IFD in this Agreement are made with the
intention that they be relied upon by the Company in determining
the suitability of IFD as a purchaser of Shares, and shall
survive their purchase. In addition, IFD undertakes to notify the
Company immediately of any change in any representation or
warranty of IFD set forth herein.
6. Indemnification. IFD understands that the offer and sale of
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Shares to him is being made, and the sale of Shares will be made,
in reliance upon the acknowledgments and agreements of IFD set
forth in Section 4 and the representations and warranties of IFD
set forth in Section 5. IFD agrees to provide, if requested, any
additional information that may reasonably be required to
determine the eligibility of IFD to purchase Shares. IFD hereby
agrees to indemnify the Company and its affiliates, agents,
attorneys and representatives and to hold each of them harmless,
from and against all claims, losses, damages
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/*/ For purpose of this representation, a U.S. Person is (i) a natural person
who is a citizen of or resident in the United States, (ii) a partnership or
corporation organized or incorporated under the laws of the United States, (iii)
an estate of which any executor or administrator is a U.S. person; (iv) a trust
of which any trustee is a U.S. person, (v) an agency or branch of a foreign
entity located in the United States, or (vi) a non-discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States.
or liability, including costs and reasonable attorneys' fees
(collectively, "Claims"), that may arise in connection with, due
to or as a result of the breach of any representation, warranty,
acknowledgement or agreement of IFD contained in this Agreement
or in any other document provided by IFD to the Company in
connection with IFD's offer to purchase Shares. IFD agrees to
indemnify the Company and any of its affiliates, agents,
attorneys and representatives and to hold each of them harmless,
from and against all Claims that may arise in connection with,
due to or as a result of the sale or distribution of Shares by
IFD in violation of the Securities Act or other applicable law.
Notwithstanding any provision of this Agreement, IFD does not
waive any rights granted to him under applicable securities laws.
IFD agrees that the affiliates, agents, attorneys and
representatives of the Company are intended third-party
beneficiaries to this Agreement for the purposes of the
indemnification provided above.
7. Arbitration. Any dispute or controversy arising under or in
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connection with this Agreement shall be resolved by binding
arbitration. The arbitration shall be held in the City of Tacoma,
Washington, and except to the extent inconsistent with this
Agreement, shall be conducted in accordance with the rules of the
American Arbitration Association in effect at the time of the
arbitration, and otherwise in accordance with principles which
would be applied by a court of law or equity. The arbitrator
shall be acceptable to both the Company and IFD. If the parties
cannot agree on an acceptable arbitrator, the dispute shall be
heard by a panel of three arbitrators, one of which shall be
appointed by each of the parties, and the third shall be
appointed by the other two arbitrators.
8. Suitability. IFD warrants and represents to the Company that
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the following information supplied by IFD pursuant to Section 5
is correct and complete:
(a) Those of the following statements indicated by a check marked in
the box opposite such statement are true and correct with respect to the
undersigned:
[ ] (i) The undersigned is a natural person whose individual
net worth, or joint net worth with its spouse, exceeds $1,000,000.00.
[ ] (ii) The undersigned is a natural person who had an
individual income in excess of $200,000.00 or joint income with its
spouse in excess of $300,000.00 in both 1998 and 1999, and who
reasonably expects an income in excess of $200,000.00, if individual,
or $300,000.00, if joint, in 2000.
[ ] (iii) The undersigned is an entity or institution that
qualifies as one or more of the following:
(A) Any bank as defined in Section 3(a)(2) of the
Securities Act, or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities
Act whether acting in its individual or
fiduciary capacity; any broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934; any insurance
company as defined in Section 2(13) of the Securities Act; any
investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section
2(a)(48) of that act; any Small Business Investment Company
licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; any
plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such
plan has total assets in excess of $5,000,000; any employee
benefit plan within the meaning of the Employee Retirement income
Security Act of 1974 if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such act, which is
either a bank, savings and loan association, insurance company,
or registered investment adviser, or if the employee benefit plan
has total assets in excess of $5,000,000 or, if a self-directed
plan, with investment decisions made solely by persons that are
accredited investors;
(B) Any private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
(C) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, Massachusetts or similar
business trust, or company, nor formed for the specific purpose
of acquiring the securities offered, with total assets in excess
of $5,000,000;
[ ] (iv) The undersigned is a director or executive officer of
the Company.
[ ] (v) The undersigned is a trust, with total assets in
excess of $5,000,000.00, not formed for the specific purpose of
acquiring the Securities, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) under the
Securities Act.
[ ] (vi) The undersigned is an entity in which all of the
equity owners meet the criteria set forth under either (i), (ii),
(iii), (iv), or (v) above.
[ ] (vii) None of the statements in (i), (ii), (iii), (iv), (v),
or (vi) above is a true statement with regard to the undersigned.
(b) The undersigned has knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of,
and protecting its own interest in connection with, investing in the
Securities.
9. General. This Agreement (i) shall be binding on IFD and the heirs,
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personal representatives, successors and permitted assigns of IFD, (ii)
shall be governed construed and enforced in accordance with the laws of the
State of Washington, without reference to any principles of conflicts of
law, and (iii) shall survive the acceptance by the Company of the
subscription evidenced by this Agreement and the admission of IFD as a
shareholder in the Company.
10. Notices. Any notice, request, instruction or other document to be
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given under this Agreement after the date hereof by any party hereto to any
other party shall be in writing and shall be deemed to have been duly given
on the date of service if delivered personally or by telecopier with
confirmed receipt via overnight delivery, or on the third day after mailing
if sent by certified mail, postage prepaid, at the addresses set forth
below, or to such other address or person as any party may designate by
written notice to the others:
If to the Company: Insynq, Inc.
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0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
If to IFD: At the last address indicated on the Company's books and
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records.
11. Assignment. IFD agrees that neither this Agreement nor any rights
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which may accrue to him hereunder may be transferred or assigned.
12. Entire Agreement. This Agreement contains the entire understanding of
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the parties relating to the subject matter contained herein and supersedes
all prior agreements and understandings, written or oral, relating to the
subject matter hereof. This Agreement shall not be modified, amended or
terminated except in a writing signed by the party against whom enforcement
is sought.
13. Confidentiality. IFD acknowledges that all Confidential Information
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(as defined herein) shall be and remain the exclusive property of the
Company at all times. IFD hereby agrees to keep in strict confidence all
Confidential Information. IFD shall not disclose any Confidential
Information, or any portion thereof, to any person or entity nor use,
license, sell, convey or otherwise exploit any Confidential Information, or
any portion thereof, for any purpose other than for the benefit of the
Company. As used in this Agreement, the term "Confidential Information"
refers to all information proprietary to, used by or in the possession of
the Company and not generally known in the industry, which is disclosed to
or learned by IFD, whether or not reduced to writing and whether or not
conceived, originated, discovered or developed in whole or in part by IFD,
including, without limitation: (a) information not generally known in the
industry which relates to the business, products or work of the Company (x)
of a technical nature, such as trade secrets, methods, know-how, formulas,
compositions, designs, processes, information regarding product development
and other similar information and materials, and (y) of a
business or commercial nature, such as information or compilation of data
about the Company's costs, pricing, profits, compensation, sales, product
plans, markets, marketing plans and strategies, equipment and operational
requirements, operating policies or plans, finances, financial records,
methods of operation and competition, management organization customers and
suppliers, and other similar information and materials; and (b) any other
technical business or commercial information designated as confidential or
proprietary that the Company or any of its affiliates may receive belonging
to any supplier, customer or others who do business with the Company or any
of its affiliates. The foregoing limitations on use and disclosure shall
not apply to information that (i) was lawfully known to the recipient
before the receipt thereof, (ii) is learned by the recipient from a third
party that is entitled to disclose same, (iii) becomes publicly known other
than through the actions of the recipient, or (iv) is required by law or
court order to be disclosed by the recipient.
14. Pronouns; Headings. All pronouns and any variations thereof shall be
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deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the entities or persons referred may require. The headings
of the sections of this Agreement are inserted for convenience only and
shall not constitute a part hereof nor affect in any way the meaning or
interpretation of this agreement.
15. Severability. In the event that any provision contained herein shall
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be held to be invalid, illegal or unenforceable for any reason, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
16. Conflict. If any conflict shall arise between the terms of the
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Registration Agreement and this Agreement, or the Warrant Agreement and
this Agreement, this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
INSYNQ, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Chairman CEO
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INTERNATIONAL FLUID DYNAMICS, INC.
By: /s/ X.X. Xxxxxx, Xx. - President
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Name: X.X. Xxxxxx, Xx.
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Title: President
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