Exhibit 4.30
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
Travin Partners, L.L.L.P. ("Travin").
WHEREAS, the Company has issued that certain Promissory Note dated as of
October 20, 2000 (the "Note") under which Travin has loaned the Company
$125,000; and
WHEREAS, the parties agree that it will be less burdensome and more
administratively feasible for the Company, in exchange for canceling Travin's
right to receive payment under the Note, which is due and payable on November 3,
2000, to issue 250,000 shares of its Common Stock to Travin at an agreed to,
arms-length negotiated value of $0.50 per share (the "Note Conversion Shares").
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 Note Shares. The $125,000 Note under which Travin
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currently has the right to receive payment from the Company on November 3,
2000, is hereby converted into 250,000 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 Travin and the return of the $125,000
Note to the Company.
2. Registration Rights. The 250,000 shares issued pursuant to this
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Agreement are hereby granted registration rights pursuant to which the
Company will promptly file a registration statement with the SEC.
3. Certain Acknowledgements and Agreements of Travin. Travin 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
Travin 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 Travin and an authorized representative of the
Company.
(d) Travin agrees not to sell nor attempt to sell all or any part of the
Shares allocated to Travin 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.
4. Representatiions and Warranties of Travin. Travin understands that the
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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 Travin, 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
Travin as an investor in the Company:
(a) Travin has consulted its attorney, accountant or investment advisor
with respect to the investment contemplated hereby and its suitability for
Travin. 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, Travin is relying solely on
independent investigations made by Travin or representative(s) of Travin.
(b) Travin has read and fully understands the public filings of the
Company as filed with the SEC.
(c) The Company has made available to Travin, 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, Travin 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) Travin understands and acknowledges that: (i) while the Company has an
operating history, the purchase of Shares by Travin involves a high degree
of risk of loss of Travin's entire investment, and there is no assurance of
any income from such investment; (ii) Travin 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) Travin is purchasing the Shares for investment
purposes only for Travin'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 Travin to liquidate an investment
therein readily in case of an emergency; and (vi) Travin 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 Travin hereby
subscribes to purchase or any part thereof, and Travin 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 Travin and the other
information set forth in Section 7 are true, correct and complete in all
material respects. Any information which Travin has heretofore furnished
to the Company with respect to Travin 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, Travin will immediately
furnish such revised or corrected information to the Company.
(f) Travin 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. Travin 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. Travin 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
Travin in, and his commitments to, all similar investments that are
illiquid is reasonable in relation to his net worth.
(g) Travin 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) Travin is a United States citizen or is otherwise a U.S. Person* as
defined below.
(i) The representations, warranties, agreements and acknowledgements made
by Travin in this Agreement are made with the intention that they be relied
upon by the Company in determining the suitability of Travin as a purchaser
of Shares, and shall survive their purchase. In addition, Travin
undertakes to notify the Company immediately of any change in any
representation or warranty of Travin set forth herein.
5. Indemnification. Travin understands that the offer and sale of Shares
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to him is being made, and the sale of Shares will be made, in reliance upon
the acknowledgments and agreements of Travin set forth in Section 3 and the
representations and warranties of Travin set forth in Section 4. Travin
agrees to provide, if requested, any additional information that may
reasonably be required to determine the eligibility of Travin to purchase
Shares. Travin 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 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 Travin contained in this
Agreement or in any other document provided by Travin to the Company in
connection with Travin's offer to purchase Shares. Travin 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 Travin in violation of the Securities Act or
other applicable law. Notwithstanding any provision of this Agreement,
Travin does not waive any rights granted to him under applicable securities
laws. Travin agrees that the affiliates, agents, attorneys and
representatives of the Company are intended third-party
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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.
beneficiaries to this Agreement for the purposes of the indemnification
provided above.
6. 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 Travin. 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.
7. Suitability. Travin warrants and represents to the Company that the
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following information supplied by Travin pursuant to Section 4 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.
[X] (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.
8. General. This Agreement (i) shall be binding on Travin and the heirs,
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personal representatives, successors and permitted assigns of Travin, (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 Travin as a
shareholder in the Company.
9. 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 Travin: At the last address indicated on the Company's books
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and records.
10. Assignment. Travin agrees that neither this Agreement nor any rights
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which may accrue to him hereunder may be transferred or assigned.
11. 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.
12. Confidentiality. Travin acknowledges that all Confidential
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Information (as defined herein) shall be and remain the exclusive property
of the Company at all times. Travin hereby agrees to keep in strict
confidence all Confidential Information. Travin 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 Travin, whether or not reduced to writing and
whether or not conceived, originated, discovered or developed in whole or
in part by Travin, 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.
13. 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.
14. 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.
15. 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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TRAVIN PARTNERS, L.L.L.P.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Agent
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