WARRANT TO PURCHASE
COMMON STOCK OF
INSYNQ, INC.
__________________________________
Dated: February 20, 2001
_______________________________________________________________________________
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.
TCA Investments, Inc./$0.30 per share.
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Warrant to Purchase
10,000 Shares of
Common Stock
WARRANT TO PURCHASE COMMON STOCK
INSYNQ, INC.
Dated as of the 20th day of February 2001.
WHEREAS, the undersigned desires to acquire for investment purposes this
Warrant to Purchase Common Stock providing for the acquisition of up to
10,000 shares of common stock, $0.001 par value per share (the "Common Stock"),
of Insynq, Inc. (the "Company"), subject to adjustment as provided herein.
NOW, THEREFORE, for and in consideration of past service and of the mutual
covenants, representations, warranties and agreements contained herein, this is
to certify that:
1. The undersigned or its permitted and registered assigns ("Holder"),
is entitled to purchase from time to time, subject to the provisions and
conditions herein, not later than the termination of the Exercise Period of
this Warrant to Purchase Common Stock (this "Warrant") as set forth in
PARAGRAPH 4 below, an aggregate of 10,000 shares of Common Stock, at the
Exercise Price per share set forth in PARAGRAPH 2(c) herein, and upon such
purchase to receive a certificate or certificates representing such shares of
Common Stock. The number of shares of Common Stock to be received upon the
exercise of this Warrant may be adjusted from time to time as hereinafter set
forth.
2. DEFINED TERMS. As used in this Warrant, the following capitalized
terms shall have the meanings respectively assigned to them below, which
meanings shall be applicable equally to the singular and plural forms of the
terms so defined.
(a) "BUSINESS DAY" shall mean any day except a Saturday, Sunday or
other day on which commercial banks in the State of Washington are
authorized or required by law to close.
(b) "EXERCISE PERIOD" means the period commencing on the date of
this Warrant and terminating at 5:00 p.m., Tacoma, Washington time, on
February 19, 2004 or, in the event that February 19, 2004 is not a
Business Day, the Business Day next following.
(c) "EXERCISE PRICE" shall mean a strike price of $0.30 per share.
(d) "HOLDER" shall mean the Person(s) then registered as the owner
of the Warrant or Warrant Securities, as the case may be, on the books and
records of the Company.
(e) "PERSON" shall mean any natural person, corporation, limited
partnership, limited liability company, general partnership, joint
venture, association, company, or other organization, whether or not a
legal entity, and any government agency or political subdivision thereof.
(f) "WARRANT SECURITIES" shall mean the shares of Common Stock (or
other securities) of the Company purchasable or purchased from time to
time under this Warrant or acquired upon any transfer of any such shares,
together with all additional securities received in payment of dividends
or distributions on or splits of those securities or received as a result
of the adjustments provided for in Paragraph 6 hereof.
3. EXERCISE OF WARRANT. Subject to and in accordance with the
provisions and conditions hereof, this Warrant may be exercised from time to
time in whole or in part during the term of this Warrant as set forth in
Paragraph 5 hereof.
4. TERM OF WARRANT. The term of this Warrant shall commence on the date
hereof and shall expire on the exercise in full of this Warrant by Holder or at
5:00 p.m. Tacoma, Washington time on the expiration of the Exercise Period.
5. MANNER OF EXERCISE. Holder may exercise this Warrant in whole or in
part in accordance with the terms hereof by mailing or personally delivering to
the Company (i) this Warrant, (ii) a Notice of Exercise in the form of
Exhibit I hereto duly executed by Holder and (iii) payment of the Exercise
Price per share, such payment to be in the form of: (a) cash, a certified or
official bank check made payable to the Company, or a wire transfer of funds to
an account designated by the Company, or any combination of the foregoing,
together with all federal and state excise taxes applicable upon such exercise;
(b) by crediting amounts due and owing to the Holder by the Company for
professional services previously rendered by the Holder as of the date of each
exercise of the Warrant by Holder as provided for herein. Upon receipt by the
Company of this Warrant, the Notice of Exercise and such payment, this Warrant
shall be deemed to have been exercised with respect to the number of shares of
Common Stock subject to such exercise and specified in the Notice of Exercise,
and Holder shall thereupon become the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding the fact that the stock
transfer books of the Company may then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered
to Holder. As soon as practicable after any exercise, in whole or in part, of
the Warrant, and in any event within ten (10) Business Days thereafter, the
Company will deliver to Holder a stock certificate or certificates representing
the shares of Common Stock so purchased, with such certificate or certificates
to be in such name(s) and such denominations as Holder may specify in the
Notice of Exercise. If this Warrant is exercised for less than all of the
shares of Common Stock subject hereto, the Company shall, upon such exercise
and surrender of this Warrant for cancellation, promptly execute and deliver to
Holder a new Warrant of like tenor evidencing the right of Holder to purchase
the balance of shares of Common Stock purchasable hereunder.
6. ADJUSTMENT PROVISIONS.
(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 issuable upon
exercise of this Warrant by reclassification, exchange or substitution, or
(iv) reorganize the capital structure of the Company by merger,
reorganization, consolidation or sale of assets, then this Warrant shall,
after the happening of any such event, evidence the right to purchase the
number of shares of Common Stock or other securities that would have been
received as a result of that change with respect to the shares of Common
Stock as if such shares had been purchased under this Warrant immediately
before occurrence 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").
(b) If, during the term of this Warrant, the number of shares of
Common Stock of the Company is adjusted pursuant to subparagraph (a)
above, then the Exercise Price per share to be in effect after such
Adjustment Date shall be determined by multiplying the Exercise 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
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.
7. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued in connection with the
exercise of this Warrant, but the Company shall pay, in lieu of any fractional
share, a cash payment on the basis of the Exercise Price per share of the
Common Stock to be acquired pursuant to such exercise for such fractional
share.
8. REGISTRATION RIGHTS. Holder has been granted Registration Rights
with respect to the shares underlying this Warrant pursuant to a Registration
Agreement dated February 20, 2001. In such Registration Agreement, the Company
has agreed to Piggyback Registration Rights.
9. RESTRICTIONS ON TRANSFER. The undersigned represents and warrants
that this Warrant, and the Warrant Securities acquired pursuant to the exercise
of this Warrant, are being purchased for his investment account without a view
towards the resale or distribution thereof in violation of applicable
securities laws. It is understood that in case of subsequent sale of such
Warrant or the Warrant Securities under certain circumstances, such sale might
be deemed to constitute a public distribution within the meaning of, and
require registration under, the provisions of the Securities Act of 1933, as
amended (the "Act").
(a) The undersigned acknowledges and agrees that unless and until
the Warrant and the Warrant Securities are registered under the Act, this
Warrant and the Warrant Securities shall be "restricted securities" for
purposes of Rule 144 under the Act. The undersigned shall, prior to any
transfer or disposition or attempted transfer or disposition of the
Warrant or the Warrant Securities give written notice to the Company of
his intention to effect such transfer or disposition and shall deliver to
the Company an opinion of legal counsel (such counsel and opinion to be
reasonably satisfactory to the Company) that the proposed transfer or
disposition of the Warrant or the Warrant Securities may be effected
without registration thereof under the Act and without taking any similar
action under any other applicable securities laws, in which case the
undersigned shall be entitled to transfer or dispose of the Warrant or the
Warrant Securities, as applicable, in accordance with the terms of the
notice delivered by such Holder to the Company. Until the Warrant
Securities are registered under the Act, each certificate evidencing the
Warrant Securities so transferred or disposed of (and each certificate
evidencing any untransferred Warrant Securities) shall bear the following
restrictive legend unless in the opinion of Company counsel such legend is
not required:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act")
or any state securities laws. These shares may not be offered for
sale, sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an opinion of
counsel delivered to the Company that an exemption from such
registration is available for such sale and transfer."
(b) Until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder thereof as the absolute owner
thereof for all purposes, notwithstanding any notice to the contrary.
(c) The undersigned understands and acknowledges that: (i) while the
Company has an operating history, the Warrant and the Warrant Securities
involve a high degree of risk of loss of the entire investment, and there
is no assurance of any income from such investment; (ii) the Holder must
bear the economic risk of an investment in the Warrant and the Warrant
Securities for an indefinite period because the offer and sale of the
Warrant and the Warrant Securities have not been registered under the Act
or any state securities laws and are being offered and sold in reliance
upon exemptions provided under the 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
Act and applicable state laws, or unless an exemption from such
registration is available; (iii) there may not be a public market for the
Warrant or the Warrant Securities in the future; (iv) the Holder is
purchasing the Warrant and the Warrant Securities for investment purposes
only for the Holder's account and not for the benefit of any other person
or with any view toward the resale or distribution thereof; and (v) the
Holder has no contract, undertaking, agreement or arrangement with any
person to sell, transfer or pledge to such person or anyone else the
Warrant or any of the Warrant Securities which the Holder is hereby
purchasing or any part thereof, and the Holder has no present plans to
enter into any such contract, undertaking, agreement or arrangement.
10. STOCK TO BE DELIVERED UPON EXERCISE. The Company will at all times
keep available through the term of the Exercise Period, solely for
delivery upon the exercise of this Warrant, such number of the shares of
Common Stock or other securities as shall from time to time be sufficient
to effect the exercise of this Warrant.
11. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant and, in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company will execute and
deliver, in lieu thereof, a new warrant of like tenor to Holder.
12. SPECIFIC PERFORMANCE. The Company stipulates that the remedies at
law available to the holder of this Warrant in the event of any default or
threatened default by it in the performance of or compliance with any of
the terms of the Agreement are not and will not be adequate, and that such
terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against
a violation of any of the terms hereof or otherwise.
13. APPLICABLE LAW. THIS WARRANT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CHOICE OF LAWS OF SUCH STATE.
14. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings relating to the
subject matter hereof. This Warrant and any of the terms hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
15. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon and inure
to the benefit of the Company and the undersigned and their respective
successors and permitted assigns; provided, however, nothing herein shall
be construed to permit assignment of the Warrant except in accordance with
the provisions herein.
16. SEVERABILITY. Every provision of this Warrant is intended to be
severable. If any term or provision hereof (or portion thereof) is
determined to be illegal or unenforceable for any reason whatsoever, such
illegality or unenforceability shall not affect any other term or
provision (or portion thereof) of this Warrant.
17. NOTICES. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at the following address or at such other
address as may have been furnished to the Company in writing by such
holder, or, until an address is so furnished, to the address of the last
holder of such Warrant who has so furnished an address to the Company:
If to the Company:
Insynq, Inc.
1101 Broadway Plaza
Tacoma, Washington 98402
Telecopy No.: (253) 284-2035
If to the Holder:
TCA Investments, Inc.
_____________________
_____________________
IN WITNESS WHEREOF, this Warrant has been executed by Insynq, Inc., by its
duly authorized officers, as of the date first above written.
INSYNQ, INC.
By: /s/ John P. Gorst
Name: John P. Gorst
Title: Chief Executive Officer
The terms and provisions of the Warrant are accepted and agreed to by the
undersigned effective as of the 20th day of February 2001.
TCA Investments, Inc.
By: /s/ F.C. Fisher, Jr.
Name: F. C. Fisher, Jr.
Title: President
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EXHIBIT "I"
NOTICE OF EXERCISE
(To be executed by Holder to exercise the
Warrant in whole or in part)
Insynq, Inc.
1101 Broadway Plaza
Tacoma, Washington 98402
Re: Warrant to Purchase Common Stock dated February 20, 2001
by and between the Company and TCA Investments, Inc.
(the "Warrant")
Dear Sir or Madam:
The undersigned holder irrevocably elects to exercise the Warrant of
Insynq, Inc. to purchase _________ shares of Common Stock of Insynq, Inc.
(the "Company") subject to the Warrant, and hereby makes payment of the amount
of $________ in the manner described below, representing the Exercise Price per
share of Common Stock multiplied by the number of shares of Common Stock to be
purchased pursuant to this exercise.
By: ___________________________________
$__________ cash
$__________ certified or bank cashier's check
$__________ wire transfer
EXHIBIT "I" - Page 1
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