EXHIBIT 4.4
REGISTRATION AND REPURCHASE AGREEMENT
This Registration and Repurchase Agreement (the "Agreement"), dated as of
the 17th day of May, 2000 is entered into between XCEL Management, Inc., a Utah
corporation (the "Company") and International Fluid Dynamics ("International").
WHEREAS, there are currently outstanding 9,839,764 shares of Common Stock
of the Company;
WHEREAS, the Company is contemplating a reorganization and recapitalization
(the "Contemplated Reorganization") whereby each holder of outstanding Common
Stock of the Company will receive two (2) shares of Common Stock in a newly
formed Delaware entity for every one (1) share of Common Stock currently held;
WHEREAS, pursuant to a Subscription Agreement dated May 17, 2000 (the
"Subscription Agreement"), by and among the Company and International,
International has purchased 25,000 shares of common stock, $0.001 par value per
share (the "Common Stock"), of the Company;
WHEREAS, pursuant to that certain Warrant to Purchase Common Stock dated
May 17, 2000, International has acquired a Warrant (the "Warrant") to purchase
25,000 shares of Common Stock (the Common Stock purchased pursuant to the
Subscription Agreement and the underlying shares subject to the Warrant are
hereafter collectively referred to as the "Shares");
WHEREAS, in order to insure liquidity in the future the Holder wishes to
have the Shares registered and the Company wishes to grant such registration
rights.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, agree
as follows:
Definitions. As used herein, the following terms have the following
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meanings:
"Register," "registered" and "registration" refer to a registration
effected by filing a registration statement in compliance with the Securities
Act of 1933, as amended (the "Securities Act") and the declaration or ordering
by the Securities and Exchange Commission (the "Commission") of effectiveness of
the registration statement.
1. Registration and Repurchase.
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(a) The Company grants to the Holder the right to have the
Shares registered pursuant to the Securities Act. The Company will use its
best efforts to cause a registration statement to be filed by July 15, 2000
to be declared effective on or before October 15, 2000.
(b) In the event (i) the registration statement is not filed by
July 15, 2000 or (ii) is not declared effective by October 15, 2000, the
Holder shall have the right, but not the obligation, to require the Company
to repurchase the Shares acquired pursuant to the Subscription Agreement at
$5.72 per share (the "Repurchase Price"), payable in cash ten
(10) business days after the Holder gives notice to the Company that it has
elected to "put" the Shares back to the Company. The parties agree that
after the Contemplated Reorganization, the Shares subject to repurchase
shall be 50,000 Shares and the Repurchase Price shall be $2.86 per Share,
as required by Section 3 herein.
2. Registration Procedures. The Company is required by the provisions of
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this Agreement to effect promptly the registration of the Shares and will:
(a) prepare and file with the Commission a registration
statement on an appropriate form with respect to the Shares and, subject to
the provisions of Section 2(b), use its best efforts to cause the
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registration statement to become effective as provided herein;
(b) prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in
connection therewith as may be necessary to keep the registration statement
effective and current and to comply with the provisions of the Securities
Act, with respect to the disposition of the Shares, including such
amendments and supplements as may be necessary to reflect the intended
method of disposition from time to time of the prospective seller of the
Shares, but in no event will the Company be required to file a registration
statement or cause a registration statement filed pursuant to this
Agreement to remain effective after the second anniversary of this
Agreement;
(c) furnish to the Holder four (4) copies of a prospectus and
amendments thereof and supplements thereto in conformity with the
requirements of the Securities Act, and such other documents as the Holder
may reasonably request in order to facilitate the public sale or other
disposition of the Shares owned by the Holder;
(d) use its best efforts to register or qualify, or satisfy
exemptions from registration or qualification for, the Shares under such
other securities or blue sky or other applicable laws of such jurisdictions
within the United States as the Holder shall reasonably request, to enable
the Holder to consummate (upon the registration statement being declared
effective by the Commission) the public sale or other disposition in such
jurisdictions of the Shares owned by the Holder; provided, however, that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not at the time so qualified or to take any action
which would subject it to service of process in judicial or administrative
proceedings other than those arising out of the offer or sale of the Shares
in any jurisdiction where it is not at the time so subject;
(e) prior to filing any registration statement contemplated by
this Agreement, furnish to the Holder and its legal counsel four (4) copies
of all documents proposed to be filed. The Holder or its counsel shall be
entitled to perform a reasonable due diligence review, at the expense of
the Holder, of the matters addressed in the documents and to advise the
Company of the changes to such documents that are necessary so that they do
not contain any untrue statement of a material fact about the Holder or
omit to state any material fact about the Holder required to be stated
therein or necessary to make statements about the Holder not misleading in
light of the circumstances under which
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they were made. The Company shall reimburse the Holder up to $1,000 for
legal expenses incurred in reviewing the registration statement;
(f) notify the Holder promptly, and (if requested by the Holder)
confirm the notice in writing, (i) when a 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 under the Securities Act and each applicable state
law, (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a registration
statement or related prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of a registration statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event which makes any statement made in a registration
statement or related prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the registration statement,
prospectus or documents so that, in the case of the registration statement,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the
prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to a registration statement
would be appropriate;
(g) use best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement filed pursuant to
Section 1 of this Agreement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Shares
offered pursuant to a registration statement filed pursuant to Section 1 of
this Agreement for sale in any jurisdiction, at the earliest practicable
moment;
(h) cooperate with the Holder to facilitate the timely
preparation and delivery of certificates representing Shares to be sold,
which certificates shall not bear any restrictive legends;
(i) use best efforts to cause the Shares to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable
the Holder thereof to consummate the disposition of the Shares; and
(j) use best efforts to cause all the Shares to be listed on
each registered securities exchange or the Nasdaq Stock Market on which
Common Stock of the Company is then listed or quoted and on any inter-
dealer quotation system on which the Common Stock of the Company is then
quoted.
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3. Adjustment Provisions
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(a) If the Company shall, during the term hereof, (i) declare a
dividend and make a distribution on the Common Stock payable in shares of
Common Stock, (ii) subdivide or combine its outstanding shares of Common
Stock, (iii) change the number of shares of Common Stock evidence by this
Agreement by reclassification, exchange or substitution, or (iv) reorganize
the capital structure of the Company by merger, reorganization,
consolidation or sale of assets, then after the occurrence of such event,
this Agreement shall apply to the number of shares of Common Stock or other
securities into which the Shares subject to each provision herein shall
have been converted, substituted, combined, subdivided, reorganized,
reclassified or exchanged as a result of such event. Such adjustment shall
be made successively whenever any event listed above shall occur. Any
adjustment under this subparagraph (a) shall become effective at the close
of business on the date any such event occurs (the "Adjustment Date") and
the Repurchase Price shall be adjusted proportionately.
(b) If, during the term of this Agreement, the number of shares
of Common Stock of the Company is adjusted pursuant to subparagraph (a)
above, then the Repurchase Price per share to be in effect after such
Adjustment Date shall be determined by multiplying the Repurchase Price per
share in effect immediately prior to such Adjustment Date by a fraction,
the numerator of which shall be the number of shares of Common Stock
outstanding at the closing of business on the Business Day immediately
preceding such Adjustment Date and the denominator of which shall be the
number of shares of Common Stock (or the equivalent amount of other
securities) outstanding at the opening of business on the first Business
Day after the Adjustment Date.
(c) Notice of Adjustment. The Company shall give notice of each
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adjustment or readjustment of the number of shares of Common Stock or other
securities issuable upon exercise of this Warrant to Holder or of the
Exercise Price per share at the address set forth in Paragraph 17 hereof.
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4. Cooperation by the Holder.
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(a) The Holder will furnish to the Company in writing such
information about the Holder as the Company may reasonably require from the
Holder in connection with the preparation of the registration statement
(and the prospectus included therein).
(b) The Holder will not (until further notice) effect sales of
Shares after receipt of telegraphic or written notice from the Company to
suspend sales to permit the Company to correct or update a registration
statement or prospectus; but the obligations of the Company with respect to
maintaining a registration statement current and effective shall be
extended by a period of days equal to the period the suspension is in
effect. The Company agrees to use commercially reasonable efforts to
promptly prepare and file any such correction or update. At the end of the
period during which the Company is obligated to keep a registration
statement current and effective (and any extensions thereof required by the
preceding sentence), the Holder shall discontinue sales of Shares pursuant
to the registration statement upon receipt of notice from the Company of
its
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intention to remove from registration the Shares covered by the
registration statement which remain unsold, and the Holder shall notify the
Company of the number of Shares registered which remain unsold immediately
upon receipt of the notice from the Company.
(c) The Holder agrees to provide the Company with written
representations of fact about the Holder reasonably necessary to permit the
Company and its counsel to conclude that all sales of Shares made in
connection with the registration were made in compliance with all
applicable securities laws, including, without limitation, the prospectus
delivery requirements of Section 5 of the Securities Act and any applicable
restrictions of Rules 10b-6 and 10b-7 of the Securities Exchange Act of
1934, as amended.
5. Expenses of Registration. All expenses incurred in effecting any
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registration pursuant to this Agreement including, without limitation, all
registration and filing fees, expenses of compliance with blue sky laws, fees
and disbursements of counsel for the Company and expenses of any audits
incidental to or required by any such registration, shall be borne by the
Company, except that the costs of prospectus printing and all underwriting
discounts and commissions attributable to Shares being sold by the Holder shall
be borne by the Holder. Without limiting the generality of the foregoing, the
Company shall pay all of the following registration expenses: (a) the Company's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (b) to the
extent not already incurred, the fees and expenses incurred in connection with
the listing on an exchange, the Nasdaq Stock Market, or inter-dealer quotation
system of the Shares, (c) all registration and filing fees, (d) fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Shares), (e) printing expenses and engraving expenses, (f) fees and
disbursements of counsel to the Company and customary fees and expenses for
independent certified public accountants retained by the Company, and (g) the
fees and expenses of any special experts retained by the Company.
6. Notices. Any and all notices, designations, consents, offers,
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acceptances or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier, telegram or telecopy which shall be
addressed, or sent, to the Company as follows (or such other address as the
Company or the Holder may specify to the Company and all other parties by
Notice):
XCEL Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
Telecopy: (000) 000-0000
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and to the Holder at :
International Fluid Dynamics
__________________________
__________________________
Attn: ___________________
Telecopy:
All Notices shall be deemed effective and received (a) if given by telecopy,
when the telecopy is transmitted to the telecopy number specified above and
receipt thereof is confirmed; (b) given by overnight courier, on the business
day immediately following the date on which the Notice is delivered to a
reputable overnight courier service; or (c) if given by telegram, when the
Notice is delivered at the address specified above.
7. Amendment. The terms of this Agreement may not be amended, modified or
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otherwise revised except by the written consent of the Company and the Holder.
8. Counterparts; Facsimile Execution. This Agreement may be executed in
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two or more counterparts and each counterpart shall be deemed to be an original
and which counterparts together shall constitute one and the same agreement of
the parties hereto. Each party to this Agreement agrees that it will be bound by
its own telecopy signature and that it accepts the telecopy signature of each
other party to this Agreement.
9. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
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THE STATE OF WASHINGTON WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR
PERFORMANCE IN XXXXXX COUNTY, WASHINGTON.
10. Entire Agreement. This Agreement contains the entire understanding of
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the parties hereto respecting the subject matter hereof and supersedes all prior
agreements, discussions and understandings with respect thereto.
11. Cumulative Rights. The rights of the parties under this Agreement are
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cumulative and in addition to all similar and other rights of the parties under
other agreements.
12. Severability and Reformation. If any provision of this Agreement is
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held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of the parties under this Agreement would not
be materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance therefrom, and in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement, a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the court or any
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arbitrator to whom disputes relating to this Agreement are submitted to reform
the otherwise illegal, invalid or unenforceable provision in accordance with
this Section 11.
13. Arbitration. IN THE EVENT OF A DISPUTE HEREUNDER WHICH CANNOT BE
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RESOLVED BY THE PARTIES AMONG THEMSELVES, SUCH DISPUTE SHALL BE SETTLED BY
ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATION
PANEL (WHICH SHALL BE A ONE PERSON PANEL) MAY BE ENTERED IN ANY COURT OR
TRIBUNAL OF COMPETENT JURISDICTION. THE COMPANY AND THE HOLDER AGREE THAT ALL
ARBITRATIONS OCCURRING UNDER THIS SECTION 12 SHALL BE HELD IN THE CITY OF
TACOMA, WASHINGTON.
14. Indemnification.
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(a) Indemnification by the Company. The Company will indemnify
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Holder against any and all claims, losses, damages, and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of any material fact contained in any
prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related registration
statement, notification or the like) or any omission (or alleged omission)
to state therein any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation
by the Company of any rule or regulation promulgated under the Securities
Act applicable to, and relating to any action or inaction required of, the
Company in connection with any such registration, qualification or
compliance, and the Company will reimburse Holder for any legal and any
other expenses reasonably incurred by them in connection with investigating
or defending any such claim, loss, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such claim, loss, damage or liability arises out of or is based on
any untrue statement or omission based upon written information furnished
to the Company by Holder for use in such prospectus, offering circular or
other document.
(b) Indemnification by Holder. Holder will indemnify the Company
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and its officers and directors and each entity or individual who controls
the Company (within the meaning of the Securities Act) and their respective
successors in title and assigns against any and all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of any material fact
contained in any prospectus, offering circular or other document incident
to any registration, qualification or compliance (or in any related
registration statement, notification or the like) or any omission (or
alleged omission) to state therein any material fact required to be stated
therein or necessary to make the statement therein not misleading, and
Holder will reimburse the Company and its officers, directors, and
controlling entities or individuals for any legal and any other expenses
reasonably by them incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided, however, that
this paragraph (b) shall apply only if (and only to the extent that) such
statement or omission was made in reliance upon written information
furnished to the Company in an instrument duly executed by Holder
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or any of its officers, directors, or controlling entities or individuals
and stated to be specifically for use in such prospectus, offering circular
or other document (or related registration statement, notification or the
like) or any amendment or supplement thereto.
(c) Indemnification Proceedings. Each party entitled to
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indemnification pursuant to this Section 13 (the "Indemnified Party") shall
give notice to the party required to provide indemnification pursuant to
this Section 13 (the "Indemnifying Party") promptly after such Indemnified
Party acquires actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party (at its expense) to assume
the defense of any claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be acceptable to the Indemnified Party, and
the Indemnified Party may participate in such defense at such party's
expense; and provided, further, that the failure by any Indemnified Party
to give notice as provided in this paragraph (c) shall not relieve the
Indemnifying Party of its obligations under Section 13 except to the extent
that the failure results in a failure of actual notice to the Indemnifying
Party and such Indemnifying Party is damaged solely as a result of the
failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. The reimbursement
required by this Section 13 shall be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
15. Reimbursement of Expenses. The Company shall reimburse Holder his
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legal and accounting fees incurred by Holder in connection with his acquisition
of the Common Stock and the Warrants referenced herein, up to but not exceeding
$2,000.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XCEL MANAGEMENT, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
INTERNATIONAL FLUID DYNAMICS
By:_______________________________
Name:_____________________________
Title:____________________________
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AMENDMENT NO. 1 TO
REGISTRATION AND REPURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO REGISTRATION AND REPURCHASE AGREEMENT (this
"Agreement") is effective as of June 13, 2000 by and between Xcel Management,
Inc., a Utah corporation (the "Company"), and International Fluid Dynamics, Inc.
("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Registration and Repurchase
Agreement as of May 17, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best interests to
amend the Registration and Repurchase Agreement to reflect new dates for filing
a registration statement with the SEC and for such registration statement to be
declared effective by the SEC.
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:
Section 1 shall be amended in its entirety to read as follows:
"1. Registration and Repurchase.
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(a) The Company grants to the Holder the right to have the Shares
registered pursuant to the Securities Act. The Company will use its best efforts
to cause a registration statement to be filed by September 15, 2000 to be
declared effective on or before December 15, 2000.
(b) In the event (i) the registration statement is not filed by
September 15, 2000 or (ii) is not declared effective by December 15, 2000, the
Holder shall have the right, but not the obligation, to require the Company to
repurchase the Shares acquired pursuant to the Subscription Agreement at $5.72
per share (the "Repurchase Price"), payable in cash ten (10) business days after
the Holder gives notice to the Company that it has elected to "put" the Shares
back to the Company. The parties agree that after the Contemplated
Reorganization, the Shares subject to repurchase shall be 50,000 Shares and the
Repurchase Price shall be $2.86 per Share, as required by Section 3 herein."
The remainder of this page intentionally left blank
IN WITNESS WHEREOF, the parties have executed this Amendment to
Registration and Repurchase Agreement as of the 13th day of June, 2000.
INTERNATIONAL FLUID DYNAMICS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
XCEL MANAGEMENT, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
INSYNQ, INC.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
September 5, 2000
RE: Extension of the filing by Insynq, Inc. (the "Company") of the
Registration Statement on Form SB-2 (the "Registration Statement")
To the parties attached on Exhibit A hereto:
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Due to the circumstances requiring us to file a Form 12b-25 to extend the
filing of our Annual Report on Form 10-KSB, and the need for additional time
after the filing of the 10-KSB for our internal accounting and financial group
to verify the information contained in the Registration Statement, we request
that you, the undersigned stockholder of the Company, agree to extend the filing
date of the Registration Statement which is required under your applicable
Registration & Repurchase Agreement to September 25, 2000.
If you agree to this extension, please sign below and return this executed
letter to Xxxx X. Xxxxxxx, Xxxxx Xxxxxxx & Xxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx, 00000.
Best Regards,
//s//
Xxxx X. Xxxxx
President and Chief Executive Officer
The undersigned hereby consents to extend the filing of the Registration
Statement to September 25, 2000.
International Fluid Dynamics, Inc.
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By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title:
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