Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and entered
into the 25th day of January, 2000, by and between Insynq, Inc., a Washington
corporation (the "Company"), and Xxxxxxx Xxxxx, Xx., Trustee (but not
personally) (the "Purchaser").
This Agreement is made pursuant to the Purchaser Representation Letter,
dated as of the date hereof, between the Company and the Purchaser (the
"Subscription Agreement"). In order to induce the Purchaser to enter into the
Subscription Agreement, the Company has agreed to provide for the benefit of the
Purchaser, the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Subscription Agreement.
IN CONSIDERATION of the foregoing and the mutual covenants contained in
this Agreement, the parties hereby agree as follows:
1 Definitions
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As used in this Agreement, the following capitalized terms shall have the
following meanings:
Closing Date: January 26, 2000.
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Common Shares: The shares of Common Stock sold to the Purchaser
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pursuant to the Subscription Agreement.
Common Stock: The shares of common stock, no par value of the Company.
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Effective Date: The date that the Registration Statement is declared
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effective by the SEC.
Exchange Act: The Securities Exchange Act of 1934, as amended from
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time to time.
Holder: Each beneficial holder from time to time of Registrable
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Securities.
Indemnified Holder: See Section 6(a).
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NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in any Registration Statement, as
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supplemented by any prospectus supplement and as amended by all amendments,
including post-effective amendments and all material incorporated by reference
in such prospectus.
Registrable Securities: The Common Shares; provided that a Common
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Share ceases to be a Registrable Security when it (i) has been effectively
registered under Section 5 of the Securities Act and disposed of in accordance
with any Registration Statement, (ii) has been distributed to the public
pursuant to Rule 144 under the Securities Act ("Rule 144") (or any similar
provisions then in force) or (iii) is eligible for distribution to the public by
the Holder pursuant to Rule 144(k) (or any similar provisions then in force).
Registration Expenses: See Section 5.
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Registration Statement: Any registration statement of the Company
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which, in accordance with Section 3 hereof, covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time to
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time.
SEC: The Securities and Exchange Commission.
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2 Securities Subject to this Agreement
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Each holder from time to time of Registrable Securities shall be entitled
to the benefits of this Agreement. A Person is deemed to be a Holder of
Registrable Securities whenever such Person is the beneficial owner of
Registrable Securities. The Company is entitled to treat the record holder of
Registrable Securities as beneficial owner of Registrable Securities unless
otherwise notified by such holder.
3 Registration Statement: Timing of Filing Effectiveness and Period of
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Usability
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Subject to (i) the provisions of Section 4 hereof and (ii) the Common Stock
of the Company being publicly traded at the time of the request set forth below,
the Company shall, upon the request of Purchaser prepare and file with the SEC a
Registration Statement on Form S-3 (or any other form of registration statement
on which it may file for registration under the Securities Act) registering
resales of the Common Shares by the Holders from time to time through the
automated quotation system of the Nasdaq Small Cap Market or the facilities of
any national securities exchange or the Nasdaq National Market if the Common
Stock is then listed or quoted thereon or in privately-negotiated transactions.
The Registration Statement shall register (i) all of the Common Shares and (ii)
such number of additional shares of Common Stock as may become issuable as
Common Shares as a result of the anti-dilution provisions of the Common Shares.
The Company will use commercially reasonable efforts to cause the initial
Registration Statement to be declared effective by the SEC as soon as possible
after the filing thereof. The Company hereby agrees that it shall (i) prepare
and file such post-amendments to the initial Registration Statement and/or such
additional Registration Statements as may be necessary to ensure that at all
times there shall be registered with the SEC for resale by the Holders from time
to time as provided in this Section 3 sufficient shares of Common Stock to
account for all Common Shares which become issuable from time to time with
respect to the Common Shares (as a result of anti-dilution provisions), and (ii)
cause such post-effective amendments to the initial Registration Statement
and/or such additional Registration Statements to be declared effective as soon
as possible after the filing thereof.
The Company agrees to use diligent efforts to keep the Registration
Statement(s) continuously effective and usable for resale of Registrable
Securities until two years (the "Effectiveness Period") from the Closing Date or
such shorter period which will terminate when all Common Shares have ceased to
be Registrable Securities.
4 Registration Procedures
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In connection with the Company's obligation to file Registration Statements
as provided in Section 3 hereof, the Company will as expeditiously as possible:
(a) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the
Securities Act or rules and regulations thereunder for shelf registration
or otherwise necessary to keep the Registration Statement effective for the
applicable period and cause the Prospectus as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the methods of disposition by the sellers thereof
set forth in such Registration Statement or supplement to the Prospectus;
(b) notify Purchaser and the Holders of Registrable Securities
promptly, and confirm such advice in writing,
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(1) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective,
(2) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, and
(3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(c) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(d) furnish, without charge, to Purchaser and, upon request, each
Holder of Registrable Securities, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(e) deliver to Purchaser and each Holder of Registrable Securities
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each Purchaser and
each Holder of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(f) use its reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to enable the
Holders thereof to consummate the disposition of such Registrable
Securities in such jurisdictions as the Holders may reasonably specify in
response to inquiries to be made by the Company, provided that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(g) if any event shall occur as a result of which it is necessary,
in the opinion of counsel for the Company, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of
the circumstances
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existing at the time it is delivered by a Holder, prepare a supplement or
post-effective amendment to the Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the Holders of
the Registrable Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(h) obtain a CUSIP number for all Registrable Securities (unless
already obtained), not later than the Effective Date;
(i) make available for inspection during normal business hours by a
representative of the Holders of a majority of the Registrable Securities
and any attorney or accountant retained by such representative, all
financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors and employees
to supply all information reasonably requested by such Holders or any such
attorney or accountant in connection with the Registration Statement;
provided that all such records, information or documents shall be kept
confidential by such Persons unless disclosure of such records, information
or documents is required by court or administrative order or is generally
available to the public other than as a result of disclosure in violation
of this paragraph (i);
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders an earnings statement satisfying the provisions of Section
11 (a) of the Securities Act (in accordance with Rule 158 thereunder or
otherwise), no later than 45 days after the end of the 12-month period (or
90 days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the Effective Date,
which statements shall cover said 12-month period;
(k) if at any time an event of the kind described in Section 4(g)
shall occur, notify Purchaser and the Holders of Registrable Securities
that the use of the Prospectus must be discontinued (the Company will not
declare any such "black-out" periods in excess of twenty business days
during any twelve month period, unless otherwise required); and
(l) on or prior to the date the Registration Statement is declared
effective by the SEC, cause all of the Common Shares to be listed for
trading on the Nasdaq National Market (or on any other national securities
exchange) on which the Company's Common Stock is then listed.
Each Holder of Registrable Securities as to which any registration is
being effected agrees, as a condition to the registration obligations with
respect to such Holder provided herein, to furnish to the Company such
information regarding the
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distribution of such Registrable Securities as the Company may from time to
time reasonably request in writing.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company
described in this paragraph 4(k), such Holder will forthwith discontinue
disposition of Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
4(g) hereof, or until it is advised in writing by the Company (which notice
the Company shall give as promptly as possible), that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus,
and, if so directed by the Company, such Holder will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
5 Registration Expenses
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation:
(1) all registration, filing and listing fees;
(2) the Company's printing, messenger, telephone and delivery
expenses;
(3) fees and disbursements of counsel for the Company provided such
counsel has been approved by Purchaser, prior to being engaged;
(4) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
necessary to satisfy the requirements of the Securities Act); and
(5) fees and expenses associated with any NASD filing required to be
made in connection with the Registration Statement.
(all such expenses being herein called "Registration Expenses") will be borne by
the Purchaser, regardless of whether the Registration Statement becomes
effective.
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on a securities exchange or the Nasdaq National Market.
6 Indemnification and Contribution
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless each Holder of Registrable Securities, its officers, directors,
employees and agents and each Person who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an "Indemnified
Holder") from and against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any such
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case to the extent that any such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission thereof based upon information
furnished in writing to the Company by such Holder or its agent expressly for
use therein; provided further, that the Company shall not be liable in any such
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case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission was completely corrected
in an amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such Prospectus
as so amended or supplemented, prior to or concurrently with the sale of a
Registrable Security to the person asserting such loss, claim, damage, liability
or expense who purchased such Registrable Security which is the subject thereof
from such Holder. This indemnity will be in addition to any liability which the
Company may otherwise have.
If any action or proceeding (including any governmental investigation or
inquiry) shall be brought or asserted against any Indemnified Holder in respect
of which indemnity may be sought from the Company, such Indemnified Holder shall
promptly notify the Company in writing (but the omission to so notify the
Company shall not relieve it of any liability that it may have against any
Indemnified Holder otherwise than under this subsection), and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses.
Indemnified Holders shall have the right, collectively, to employ their own
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of the Indemnified
Holders unless (a) the Company has agreed to pay such fees and expenses or (b)
the Company shall have failed to assume the defense of such action or proceeding
and have failed to employ counsel reasonably satisfactory to the Indemnified
Holders in any such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include the Indemnified
Holders and the Company, and the Indemnified Holders shall have been advised by
counsel that there may be one or more legal defenses available to the
Indemnified Holders which are different from or additional to those available to
the Company (in which case, if the Indemnified Holders notify the Company in
writing that they elect to employ their own counsel at the expense of the
Company, the
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Company shall not have the right to assume the defense of such action or
proceeding on behalf of the Indemnified Holders, it being understood, however,
that the Company shall not, in connection with any one such action or proceeding
or separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for the
Indemnified Holders which firm shall be designated in writing by the Indemnified
Holders representing at least a majority of the aggregate principal amount of
the outstanding Registrable Securities). Any such fees and expenses payable by
the Company shall be paid to the Indemnified Holders entitled thereto as
incurred by the Indemnified Holders. The Company shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Company agrees
to indemnify and hold harmless the Indemnified Holders from and against any loss
or liability by reason of such settlement or judgment.
(b) Indemnification by Holder of Registrable Securities. Each Holder of
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Registrable Securities agrees to indemnify and hold harmless the Company, its
respective directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Holder, but only with respect to information relating to such
Holder furnished in writing by such Holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its respective directors or officers or any such
controlling person, in respect of which indemnity may be sought against a Holder
of Registrable Securities, such Holder shall have the rights and duties given
the Company, and the Company or its respective directors or officers or such
controlling person shall have the rights and duties given to each holder by the
preceding paragraph. In no event shall the liability of any Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Contribution. If the indemnification provided for in this Section 6 is
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unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company from the sale of the Preferred Shares to Purchaser pursuant to the
Subscription Agreement on the one hand and each Holder of Registrable Securities
from the offering of the Registrable Securities by such Holder, on the other
hand, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and each Holder of Registrable
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Securities on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, or liabilities, as well as the other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and each Holder of Registrable Securities on the other shall be
deemed to be in the same proportion as the aggregate amount paid by Purchaser to
the Company pursuant to the Subscription Agreement for the Registrable
Securities purchased by such Holder that were sold pursuant to the Registration
Statement bears to the difference (the "Difference") between the amount such
Holder paid for the Registrable Securities that were sold pursuant to the
Registration Statement and the amount received by such Holder from such sale.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the particular Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Holders of Registrable
Securities agree that it would not be just and equitable if contributions
pursuant to this subsection (c) were to be determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable
consideration referred to in the first sentence of this subsection (c). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (c) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigation or defending against any
action or claim that is the subject of this subsection (c). Notwithstanding the
provisions of this subsection (c), each Holder of Registrable Securities shall
not be required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 (f) of the Securities Act), shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7 Rule 144 and Rule 144A
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For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act, the Company covenants that it will file
the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder. If the Company is not subject to the reporting requirements of
Section 13 or 15 of the Exchange Act, the Company also covenants that it will
provide the information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any Holder of Registrable Securities which
continue to be "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and it will take such further action as any holder of
such Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of
the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, so long as such provision does not require the
public filing of information relating to the Company which the Company is not
otherwise required to file, (b) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (c) any similar rule or regulation
hereafter adopted by the SEC that does not require the public filing of
information relating to the Company. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
8 Miscellaneous
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(a) No Inconsistent Agreements. The Company will not on or after the date
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of this Agreement enter into any agreement with respect to their securities
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders of Registrable Securities hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any such agreements.
(b) Adjustments Affecting Registrable Securities. The Company will not
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take any action, or permit any change to occur, with respect to the Registrable
Securities which would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including
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the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of a
majority of the Registrable Securities.
(d) Notices. All notices, requests, consents and other communications
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hereunder shall be by telecopier, with a copy being mailed by a nationally
recognized overnight express courier, and shall be deemed given when receipt is
acknowledged by transmit confirmation report, and shall be delivered as
addressed as follows:
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(1) if to the Purchaser, at the most current address given by the
Purchaser to the Company in accordance with the provisions of this Section
8(d), which address initially is as set forth on the signature page hereto;
(2) if to a Holder of Registrable Securities, at its address of
record as indicated on the books of the transfer agent and registrar for
the Registrable Securities; and
(3) if to the Company, initially at its address set forth in Section
9 of the Subscription Agreement and thereafter at such other addresses,
notice of which is given in accordance with the provisions of this Section
8(d).
(e) Successors and Assigns. This Agreement shall inure to the benefit of
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and be-binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT
REFERENCE TO ITS RULES AS TO CONFLICTS OF LAW) AND THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
(i) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a final
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expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Subscription Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
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INSYNQ, INC.
By: /s/ Xxxx X. Xxxxx
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Name: /s/ Xxxx X. Xxxxx
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Title: Chairman - CEO
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___________________________________
XXXXXXX XXXXX, XX., TRUSTEE
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