Exhibit 4.19
NEITHER THE SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF, IF ANY, MAY NOT BE SOLD OR TRANSFERRED
EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION THAT REGISTRATION
IS NOT REQUIRED FOR SUCH SALE OR TRANSFER.
VOID AFTER 5:00 P.M. PACIFIC TIME, September 11, 2005
WARRANT
For the Purchase of
125,000 Shares of Common Stock
of
INSYNQ, INC.
1. Warrant.
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THIS CERTIFIES THAT, in consideration of $10.00 and other good and valuable
consideration, duly paid by or on behalf of TCA Investments, Inc. ("Holder"), as
registered owner of this Warrant, to InsynQ, Inc. ("Company"), Holder is
entitled, at any time or from time to time at or after September 11, 2000
("Exercise Date"), and at or before 5:00 p.m., Pacific Time on September 11,
2005 ("Expiration Date"), but not thereafter, to subscribe for, purchase and
receive, in whole or in part, up to One Hundred Twenty Five Thousand (125,000)
shares of Common Stock of the Company, $0.001 par value ("Common Stock"). If
the Expiration Date is a day on which banking institutions are authorized by law
to close, then this Warrant may be exercised on the next succeeding day which is
not such a day in accordance with the terms herein. During the period ending on
the Expiration Date, the Company agrees not to take any action that would
terminate the Warrant. This Warrant is exercisable at $1.00; provided, however,
that upon the occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Warrant, including the number of shares of Common Stock
to be received upon such exercise, shall be adjusted as therein specified. The
term "Exercise Price" shall mean the initial exercise price or the adjusted
exercise price, depending on the context, of a share of Common Stock. The term
"Securities" shall mean the shares of Common Stock issuable upon exercise of
this Warrant.
2. Exercise.
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2.1 Exercise Form. In order to exercise this Warrant, the exercise form
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attached hereto must be duly executed and completed and delivered to the
Company, together with this Warrant and payment of the Exercise Price for the
Securities being purchased. If the subscription rights represented hereby shall
not be exercised at or before 5:00 p.m., Pacific Time, on the Expiration Date,
this Warrant shall become and be void without further force or effect, and all
rights represented hereby shall cease and expire.
2.2 Legend. Each certificate for Securities purchased under this Warrant
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shall bear a legend as follows, unless such Securities have been registered
under the Securities Act of 1933, as amended ("Act"):
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Act") or applicable state
law. The securities may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under
the Act
or applicable state securities laws, or pursuant to an opinion of counsel
satisfactory to the Company stating that an exemption from such
registration is available for such sale and transfer."
2.3 Exercise Right.
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2.3.1 Exercise in Full. The holder of this Warrant may exercise it in
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full by surrendering this Warrant, with the form of subscription at the end
hereof duly executed by such holder, to the Company at its principal office. The
surrendered Warrant shall be accompanied by payment, (a) in cash or by certified
or official bank check payable to the order of the Company, in the amount
obtained by multiplying the number of shares of Common Stock subject to this
Warrant by the Exercise Price; or (b) by cashless exercise using the following
formula:
X = Y (A-B) / A
Where: X = the number of shares of Common Stock to be issued to the
holder (not to exceed the number of shares set forth on the
cover page of this Warrant Agreement, as adjusted pursuant to
the provisions of Section 6 of this Warrant Agreement).
Y = the number of shares of Common Stock for which the Warrant
is being exercised.
A = the "Market Price" of one share of Common Stock (for
purposes of this Section), shall be defined as the closing
price of the Common Stock on the business day immediately prior
to the date of exercise of this Warrant (the "Closing Bid
Price"), as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), or if the Common
Stock is not traded on NASDAQ, the Closing Bid Price in the
over-the-counter market; provided, however, that if the Common
Stock is listed on a stock exchange, the Market Price shall be
the Closing Bid Price on such exchange; and, provided further,
that if the Common Stock is not quoted or listed by any
organization, the fair value of the Common Stock, as reasonably
determined by the Board of Directors of the Company, whose
determination shall be conclusive, shall be used).
B = the Exercise Price of $1.00/share.
2.3.2 Partial Exercise. This Warrant may be exercised in part by
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surrender of this Warrant in the manner and at the place provided in this
Section 2.3 for the amount obtained by multiplying (a) the number of shares of
Common Stock the holder of this Warrant chooses to purchase as shall be
designated by the holder in the subscription at the end hereof by (b) the
Exercise Price. On any such partial exercise, subject to the provisions of
Section 2 hereof, the Company at its expense will forthwith issue and deliver to
or upon the order of the holder hereof a new Warrant or Warrants of like tenor,
in the name of the holder hereof or as such holder may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
remaining subject to this Warrant after the exercise contemplated herein.
2.3.3 Company Acknowledgment. The Company will, at the time of the
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exercise, exchange or transfer of this Warrant, upon the request of the holder
hereof acknowledge in writing its continuing obligation to afford to such holder
or transferee any rights (including, without limitation, any right to
registration of the Shares as set forth in the Subscription Agreement
incorporated by reference herein) to which such holder or transferee shall
continue to be entitled after such exercise, exchange or transfer in accordance
with the provisions of this Warrant, provided that if the holder of this Warrant
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such holder or transferee any
such rights.
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2.3.4 Delivery of Stock Certificates, Etc., on Exercise. As soon as
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practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable Shares to which such
holder shall be entitled on such exercise, and any fractional Share to which
such holder would otherwise be entitled shall be eliminated pursuant to Section
6.2.
3. Transfer.
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3.1 General Restrictions. The registered Holder of this Warrant, by its
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acceptance hereof, agrees that it will not sell, transfer or assign or
hypothecate this Warrant to anyone except upon compliance with, or pursuant to
an opinion of counsel satisfactory to the Company stating that exemption from
registration under applicable federal and state securities laws is available for
such sale and transfer. In order to make any permitted assignment, after the
receipt of such opinion by the Company, the Holder must deliver to the Company
the assignment form attached hereto duly executed and completed, together with
this Warrant and payment of all transfer taxes, if any, payable in connection
therewith. The Company shall immediately transfer this Warrant on the books of
the Company and shall execute and deliver a new Warrant or Warrants of like
tenor to the appropriate assignee(s) expressly evidencing the right to purchase
the aggregate number of shares of Common Stock purchasable hereunder or such
portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. This Warrant and the
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Securities underlying this Warrant shall not be transferred unless and until (i)
the Company has received the opinion of counsel for the Holder that such
securities may be sold pursuant to an exemption from registration under the Act,
and applicable state law, the availability of which is established to the
reasonable satisfaction of the Company, or (ii) a registration statement
relating to such Securities has been filed by the Company and declared effective
by the Securities and Exchange Commission ("SEC") and compliance with applicable
state law.
4. New Warrants to be Issued.
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4.1 Partial Exercise or Transfer. Subject to the restrictions in Section
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3 hereof, this Warrant may be exercised or assigned in whole or in part. In the
event of the exercise or assignment hereof in part only, upon surrender of this
Warrant for cancellation, together with the duly executed exercise or assignment
form and funds (or conversion equivalent) sufficient to pay any Exercise Price
and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Warrant of like tenor to this Warrant in the name of the
Holder evidencing the right of the Holder to purchase the aggregate number of
shares of Common Stock and Warrants purchasable hereunder as to which this
Warrant has not been exercised or assigned.
4.2 Lost Certificate. Upon receipt by the Company of evidence
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satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of reasonably satisfactory indemnification, the Company shall execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered as a result of such loss, theft, mutilation or destruction shall
constitute a substitute contractual obligation on the part of the Company.
5. Registration Rights.
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The Holders of this Warrant have been granted certain registration rights
as set forth in the Subscription Agreement between the Holder and Company of
even date herewith, and such Subscription Agreement shall be deemed to be
incorporated by reference herein. The Holders shall be entitled to exercise
such registration rights prior to the Exercise Date as set forth in the
Subscription Agreement.
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6. Adjustments
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6.1 Adjustments to Exercise Price and Number of Securities. The Exercise
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Price and the number of shares of Common Stock underlying this Warrant shall be
subject to adjustment from time to time as hereinafter set forth:
6.1.1 Stock Dividends - Recapitalization, Reclassification, Split-
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Ups. If, after the date hereof, and subject to the provisions of Section 6.2
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below, the number of outstanding shares of Common Stock is increased by a stock
dividend on the Common Stock payable in shares of Common Stock or by a split-up,
recapitalization or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock
issuable on exercise of this Warrant shall be increased in proportion to such
increase in outstanding shares.
6.1.2 Aggregation of Shares. If after the date hereof, and subject
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to the provisions of Section 6.2, the number of outstanding shares of Common
Stock is decreased by a consolidation, combination or reclassification of shares
of Common Stock or other similar event, then, upon the effective date thereof,
the number of shares of Common Stock issuable on exercise of this Warrant shall
be decreased in proportion to such decrease in outstanding shares.
6.1.3 Adjustments in Exercise Price. Whenever the number of shares
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of Common Stock purchasable upon the exercise of this Warrant is adjusted, as
provided in this Section 6.1, the Exercise Price shall be adjusted (to the
nearest cent) by multiplying such Exercise Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of this Warrant immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
6.1.4 Replacement of Securities upon Reorganization, etc. In case of
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any reclassification or reorganization of the outstanding shares of Common Stock
other than a change covered by Section 6.1.1 hereof or which solely affects the
par value of such shares of Common Stock, or in the case of any merger or
consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or reorganization of the
outstanding shares of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the property of the Company as an entirety or
substantially as an entirety in connection with which the Company is dissolved,
the Holder of this Warrant shall have the right thereafter (until the expiration
of the right of exercise of this Warrant) to receive upon the exercise hereof,
for the same aggregate Exercise Price payable hereunder immediately prior to
such event, the kind and amount of shares of stock or other securities or
property (including cash) receivable upon such reclassification, reorganization,
merger or consolidation, or upon a dissolution following any such sale or other
transfer, by a Holder of the number of shares of Common Stock of the Company
obtainable upon exercise of this Warrant immediately prior to such event; and if
any reclassification also results in a change in shares of Common Stock covered
by Sections 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.2, 6.1.3 and this Section 6.1.4. The provisions of this
Section 6.1.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
6.1.5 Changes in Form of Warrant. This form of Warrant need not be
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changed because of any change pursuant to this Section, and Warrants issued
after such change may state the same Exercise Price and the same number of
shares of Common Stock and Warrants as are stated in the Warrants initially
issued pursuant to this Agreement. The acceptance by any Holder of the issuance
of new Warrants reflecting a required or permissive change shall not be deemed
to waive any rights to a prior adjustment or the computation thereof.
6.2 Elimination of Fractional Interests. The Company shall not be
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required to issue certificates representing fractions of shares of Common Stock
upon the exercise of this Warrant, nor shall
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it be required to issue scrip or pay cash in lieu of any fractional interests,
it being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of shares of
Common Stock or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep
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available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of this Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid and non-assessable and not subject to preemptive rights of any stockholder.
As long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all shares of Common Stock issuable upon exercise of the
Warrants to be listed (subject to official notice of issuance) on all securities
exchanges (or, if applicable on Nasdaq) on which the Common Stock is then listed
and/or quoted.
8. Certain Notice Requirements.
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8.1 Holder's Right to Receive Notice. Nothing herein shall be construed
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as conferring upon the Holders the right to vote or consent or to receive notice
as a stockholder for the election of directors or any other matter, or as having
any rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the events
described in Section 8.2 shall occur, then, in one or more of said events, the
Company shall give written notice of such event at least fifteen days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of the closing of the transfer books,
as the case may be.
8.2 Events Requiring Notice. The Company shall be required to give the
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notice described in this Section 8 upon one or more of the following events:
(i) if the Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or distribution,
or (ii) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor, or (iii) a merger or reorganization in which
the Company is not the surviving party, or (iv) a dissolution, liquidation or
winding up of the Company (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its property, assets and
business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after
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an event requiring a change in the Exercise Price pursuant to Section 6 hereof,
send notice to the Holders of such event and change ("Price Notice"). The Price
Notice shall describe the event causing the change and the method of calculating
same and shall be certified as being true and accurate by the Company's
President and Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other
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communications under this Warrant shall be in writing and shall be deemed to
have been duly made on the date of delivery if delivered personally or sent by
overnight courier, with acknowledgment of receipt by the party to which notice
is given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (i) if to the
registered Holder of this Warrant, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company, to its principal executive
office.
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9. Miscellaneous.
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9.1 Headings. The headings contained herein are for the sole purpose of
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convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Warrant.
9.2 Entire Agreement. This Warrant (together with the other agreements
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and documents being delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof.
9.3 Binding Effect. This Warrant shall inure solely to the benefit of and
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shall be binding upon, the Holder and the Company and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Warrant or any provisions herein contained.
9.4 Governing Law; Submission to Jurisdiction. This Warrant shall be
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governed by and construed and enforced in accordance with the law of the State
of Delaware, without giving effect to conflict of laws. The Company hereby
agrees that any action, proceeding or claim against it arising out of, or
relating in any way to this Warrant shall be brought and enforced in the courts
of the State of Washington or of the United States of America for the applicable
District of Washington State, in Pierce County, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be served upon the Company may be
served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 8 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
9.5 Waiver, Etc. The failure of the Company or the Holder to at any time
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enforce any of the provisions of this Warrant shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Warrant or any provision hereof or the right of the Company or any Holder
to thereafter enforce each and every provision of this Warrant. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Warrant shall be effective unless set forth in a written instrument executed by
the party or parties against whom or which enforcement of such waiver is sought;
and no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach, non-
compliance or non-fulfillment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer as of the 11th day of September, 2000.
INSYNQ, INC.
By:______________________________________
John P. Gorst
Its: Chief Executive Officer
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Form to be used to exercise Warrant:
InsynQ, Inc.
1101 Broadway Plaza
Tacoma, Washington 98402
Date: _____________________, 20__
The undersigned hereby elects irrevocably to exercise the within
Warrant and to purchase ________ shares of Common Stock of InsynQ, Inc. and
hereby makes payment of $____________ (at the rate of $____ per share of Common
Stock) in payment of the Exercise Price pursuant thereto. Please issue the
Common Stock as to which this Warrant is exercised in accordance with the
instructions given below.
______________________________________
Signature
Payment is hereby made in:
______ cash
______ check or money order
______ wire transfer
______ cashless exercise
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Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Warrant):
FOR VALUE RECEIVED, ________________________________ does hereby sell,
assign and transfer unto _________________________________ the right to purchase
_____________________ shares of Common Stock of InsynQ, Inc. ("Company")
evidenced by the within Warrant and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated:____________________, _____
_____________________________________________
Signature
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AMENDMENT NO. 1 TO
WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO WARRANT AGREEMENT (this "Amendment") is effective
as of December 1, 2000 by and between Insynq, Inc., a Delaware corporation (the
"Company"), and TCA Investments, Inc. ("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Warrant Agreement as of
September 11, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best interests to
amend the Warrant Agreement to reflect a new exercise date to purchase common
stock, $0.001 par value per share (the "Common Stock"), of the Company
thereunder.
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:
The Warrant Agreement is hereby amended to reflect a new exercise date of
May 1, 2001, pursuant to which Holder shall be entitled to exercise the warrants
reflected by the Warrant Agreement to purchase Common Stock.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
TCA INVESTMENTS, INC.
By: /s/ Frank Fisher
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Name: Frank Fisher
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Title: President
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INSYNQ, INC.
By: /s/ John P. Gorst
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Name: John P. Gorst
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Title: CEO
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