EXHIBIT 4.34
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of November
11, 2000 by and between Insynq, Inc., a Delaware corporation (the "Company"),
and International Fluid Dynamics, Inc. ("IFD").
WHEREAS, the parties have entered into that certain Registration and
Repurchase Agreement dated as of May 17, 2000 (the "Registration Agreement")
under which IFD has the right to "put" 50,000 shares of the Company's common
stock, par value $.001 per share (the "Common Stock") purchased under the
Subscription Agreement between the parties dated as of the same date as the
Registration Agreement back to the Company at $2.86 per share under certain
conditions; and
WHEREAS, the Company has issued that certain Promissory Note dated as of
October 20, 2000 (the "Note") under which IFD 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 IFD's "put"
rights valued at $143,000 (50,000 shares multiplied by $2.86), to issue 286,000
shares of its Common Stock to IFD at an agreed to, arms-length negotiated value
of $0.50 per share (the "Put Conversion Shares"); and
WHEREAS, the parties further 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 November 3, 2000,
to issue 250,000 shares of its Common Stock to IFD 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 Put Shares. The 50,000 shares of Common Stock which IFD
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currently has the right to "put" to the Company at $2.86 per share under
the Registration Agreement (the "Put Shares") are hereby converted into the
right to receive 286,000 shares of Common Stock pursuant to an agreed-to
value of $0.50 per share. If the effective date of a registration statement
filed with the Securities Exchange Commission ("SEC") registering the Put
Conversion Shares (the "Effective Date") occurs prior to May 17, 2001, IFD
shall promptly return the Put Shares to the Company after the Effective
Date, and the certificates representing the Put Conversion Shares shall
thereafter promptly be issued to IFD. If, however, the Effective Date
occurs after May 17, 2001, IFD shall be entitled to retain the Put Shares
and the Company shall only be obligated to issue such number of additional
shares to IFD equal to the number of Put Conversion Shares less the number
of Put Shares retained by IFD.
2. Conversion of Note. The $125,000 Note under which IFD currently has
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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
IFD and the return of the $125,000 Note to the Company.
3. Termination of Certain Provisions of Registration Agreement. Sections
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1(a) and 1(b) of the Registration Agreement are hereby terminated in their
entirety.
4. Remaining Provisions of Registration Agreement. The remaining
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provisions of the Registration Agreement shall remain in effect with
respect to the Warrant Agreement issued to IFD on May 17, 2000 (the
"Warrant Agreement") and the Common Stock subject to that Warrant
Agreement.
5. Registration Rights. The Put Conversion Shares issued in exchange for
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the cancellation of the Put Shares and the Note Shares issued in exchange
for the cancellation of the Note pursuant to this Agreement are hereby
granted the same registration rights as set forth in the remaining
provisions of the Registration Agreement pursuant to which the Company
will promptly file a registration statement with the SEC. The term
"Shares" as defined under the Registration Agreement shall be amended to
include only the shares of Common Stock subject to the Warrant Agreement.
Put Conversion Shares issued hereunder, the remaining Put Shares that IFD
does not return pursuant to Section 1 above, and the Note Conversion Shares
issued hereunder.
6. 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.
7. Representatiions and Warranties of IFD. IFD 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 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 10 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.
8. Indemnification. IFD understands that the offer and sale of Shares to
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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 6 and the
representations and warranties of IFD set forth in Section 7. 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 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.
9. 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
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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.
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.
10. Suitability. IFD warrants and represents to the Company that the
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following information supplied by IFD pursuant to Section 7 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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 - President
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Title: President
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