EXHIBIT 10.155
ASSET PURCHASE AGREEMENT
Dated as of April 30, 2005, by and between
INSYNQ, INC
a Nevada corporation,
and
APTUS, CORP.
a Nevada corporation
TABLE OF CONTENTS
ASSET PURCHASE AGREEMENT.......................................................1
RECITALS....................................................................1
AGREEMENT...................................................................1
ARTICLE I......................................................................1
DEFINITIONS.................................................................1
SALE AND PURCHASE OF ASSETS.................................................4
2.1 Purchase and Sale of Assets.....................................4
2.2 Assumption of Liabilities.......................................4
2.3 Purchase Price..................................................4
2.4 The Closing.....................................................4
2.5 Deliveries at the Closing.......................................4
ARTICLE III....................................................................5
REPRESENTATIONS AND WARRANTIES OF APTUS.....................................5
3.1 Existence; Good Standing; Corporate Authority;
Compliance with Law.............................................5
3.2 Authorization, Validity and Effect of Agreements................5
3.3 No Violation....................................................6
3.4 Financial Statements............................................6
3.5 Absence of Undisclosed Liabilities..............................6
3.6 Absence of Certain Changes or Events............................7
3.7 No Contracts, Etc...............................................8
3.8 Litigation......................................................9
3.9 Authorization...................................................9
3.10 Taxes..........................................................10
3.11 Proprietary Rights.............................................10
3.12 ERISA..........................................................10
3.13 Fees...........................................................10
3.14 Books and Records..............................................11
3.15 Disclosure.....................................................11
ARTICLE IV....................................................................11
4.1 Operations.....................................................11
4.2 Meeting of Stockholders; Compliance with Nevada Corporate Law..12
4.3 No Change......................................................12
4.4 Access; Confidential Information...............................13
4.5 Obtain Consents................................................13
4.6 Exclusivity....................................................13
ARTICLE V.....................................................................14
INTERIM OPERATING COVENANTS OF INSYNQ......................................14
5.1 Operations.....................................................14
5.2 Compliance with Nevada Corporate Law...........................14
5.3 Obtain Consents................................................15
ARTICLE VI....................................................................15
ADDITIONAL COVENANTS OF THE PARTIES........................................15
6.1 Filings; Other Action..........................................15
6.2 Further Action.................................................15
6.3 Expenses.......................................................16
6.4 Brokers and Finders Fees.......................................16
6.5 Notices of Certain Events......................................16
6.6 Completion of Due Diligence....................................16
6.7 Preparation of Schedules and Exhibits..........................16
ARTICLE VII...................................................................17
CONDITIONS TO CLOSING......................................................17
7.1 Conditions to Each Party's Obligations.........................17
7.2 Conditions to Obligation of Aptus to Effect this Agreement.....18
7.3 Conditions to Obligation of Insynq to Effect this Agreement....19
ARTICLE VIII..................................................................20
TERMINATION................................................................20
8.1 Termination by Mutual Consent..................................20
8.2 Termination by Either Party....................................20
8.3 Effect of Termination and Abandonment..........................20
8.4 Extension; Waiver..............................................21
ARTICLE IX....................................................................21
GENERAL PROVISIONS.........................................................21
9.1 Notices........................................................21
9.2 Assignment, Binding Effect.....................................22
9.3 Entire Agreement...............................................22
9.4 Amendment......................................................22
9.5 Subsequent Actions.............................................22
9.6 Governing Law..................................................23
9.7 Counterparts...................................................23
9.8 Headings.......................................................23
9.9 Interpretation.................................................23
9.10 Waivers........................................................23
9.11 Attorneys' Fees................................................23
9.12 Survival.......................................................24
9.13 Incorporation of Exhibits......................................24
9.14 Severability...................................................24
9.15 Enforcement of Agreement.......................................24
9.16 Consent........................................................24
EXHIBIT A.....................................................................27
EXHIBIT B.....................................................................28
Schedule 3.1 Existence: Good Standing; Corporate Authority;
Compliance with Law....................................29
Schedule 3.3 No Violation...........................................29
Schedule 3.5 Absence of Undisclosed Liabilities.....................29
Schedule 3.6 Absence of Certain Changes or Events...................29
SCHEDULE 3.7 NO CONTRACTS, ETC..............................................35
3.7(b)...............................................................35
3.7(c)...............................................................35
3.7(d)...............................................................35
3.7(e)...............................................................35
3.7(f)...............................................................35
3.7(g)...............................................................35
3.7(h)...............................................................36
SCHEDULE 3.8 LITIGATION.....................................................36
SCHEDULE 3.11 PROPRIETARY RIGHTS.............................................36
SCHEDULE 3.13 FEES...........................................................36
SCHEDULE 3.14 BOOKS AND RECORDS..............................................36
EXHIBIT 8.2(D)................................................................37
EXHIBIT 8.3(D)................................................................38
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
April 30, 2005, among Insynq, Inc. ("Insynq" or "Buyer"), a Nevada corporation,
and Aptus, Corp., a Nevada corporation ("Aptus"), upon the following terms and
conditions:
RECITALS
A. Insynq is corporation whose common shares are quoted on the Nasdaq
Electronic Bulletin Board under the symbol "INSN.OB."
B. Aptus is a privately held corporation that owns certain proprietary
technology and other property and assets, and related trade names, and
trademarks, which are used in the operation of Aptus' business.
C. This Agreement provides for the sale by Aptus, and the purchase by
Insynq, of those assets listed on Schedule "A", in consideration for
$328,381.15, which all of the terms and conditions as hereinafter set forth and
further provides for the rescission of the Master Licensing Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and of the
provisions, representations, warranties, covenants and agreements contained
herein and other good and valuable consideration, the parties agree as follows.
ARTICLE I
DEFINITIONS
"Acquired Assets" means all right, title, and interest in and to the
assets of Aptus, listed on Schedule "A", including: a) all of the Intellectual
Property, and goodwill associated therewith, licenses and sublicenses granted
and obtained with respect thereto, and rights thereunder, remedies against
infringements thereof, and rights to protection of interests therein under the
laws of all jurisdictions, (c) agreements, contracts, indentures, mortgages,
instruments, security interests, guaranties, other similar arrangements, and
rights thereunder, (d (e) claims, deposits, prepayments, refunds, causes of
action, chooses in action, rights of recovery, rights of set off, and rights of
recoupment associated therewith, (f) franchises, approvals, permits, licenses,
orders, registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies associated therewith, (g) books, records,
ledgers, files, documents, correspondence, lists, plans, drawings, and
specifications, creative materials, advertising and promotional materials,
studies, reports, and other printed or written specifications, creative
materials, advertising and promotional materials, studies, reports, and other
printed or written materials associated therewith, provided, however, that the
Acquired Assets shall not include: (i) the corporate charter, qualifications to
conduct business as a foreign corporation, arrangements with registered agents
relating to foreign qualifications, taxpayer and other identification numbers,
seals, minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance, and existence of Aptus as a
corporation or (ii) any of the rights of Aptus under this Agreement (or under
any side agreement between Aptus on the one hand and Insynq on the other hand
entered into on or after the date of this Agreement).
"Act" means the Securities Act of 1933.
"Assumed Liabilities" means (a) those liabilities of Aptus set
specifically forth on Schedule "B" attached hereto, pertaining to the Acquired
Assets, (b) all obligations of Aptus under the agreements, contracts, leases,
licenses, and other arrangements referred to in the definition of Acquired
Assets either (i) to furnish goods, services, and other non-cash benefits to
another party after the Closing or (ii) to pay for goods, services, and other
non-cash benefits that another party will furnish to it after the Closing.
"Closing" has the meaning set forth in Section 2.4 below.
"Closing Date" has the meaning set forth in Section 2.4 below.
"Exchange Act" means the Securities Exchange Act of 1934.
"Financial Statement" has the meaning set forth in Section 3.4 below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Governmental Permits" means any permits and/or license issued by any
federal, state, local, or foreign government to Insynq or Aptus, as applicable,
which, without such permit or license, would result in a Material Adverse
Effect.
"Intellectual Property" means (a) all inventions (whether patentable or
un-patentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
re-issuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), and (h) all copies and tangible embodiments
thereof (in whatever form or medium).
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"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Material Adverse Effect" means a material adverse change in the business,
properties, financial condition, results of operations, or prospects of either
Aptus or Insynq, as applicable, taken as a whole.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Proprietary Rights" means the rights to (i) Intellectual Property; (ii)
contracts or agreements granting any right, title, license or privilege under
the Intellectual Property rights of any third party; and (iii) all other
proprietary information.
"SEC" means the United States Securities and Exchange Commission.
"Tax" (or "Taxes") means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Sec. 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest
penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
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ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Purchase and Sale of Assets.
On and subject to the terms and conditions of this Agreement, Insynq agrees to
purchase from Aptus, and Aptus agrees to sell, transfer, convey, and deliver to
Insynq, all of the Acquired Assets at the Closing for the consideration
specified below in this Article 2.
2.2 Assumption of Liabilities.
On and subject to the terms and conditions of this Agreement, Insynq agrees to
assume and become responsible for all of the Assumed Liabilities at the Closing.
Insynq will not assume or have any responsibility, however, with respect to any
other obligation or Liability of Aptus not expressly included within the
definition of Assumed Liabilities.
2.3 Purchase Price.
The aggregate purchase price for the Acquired Assets shall consist of the
following: (a) in the amount of $328,381.15 and (b) the issuance of a credit
memo by Insynq to Aptus, in the amount of $328,381.15 indicating full payment of
Aptus' entire indebtedness to Insynq as of the date hereof.
2.4 The Closing.
The closing of the transaction contemplated by this Agreement (the "Closing"),
shall take place at the offices of Aptus, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ on or before June 1, 2005, commencing at 9:00 a.m. local time on the
second business day following the satisfaction or waiver of all conditions to
the obligations of the Parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective Parties
will take at the Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date"); provided, however, that the Closing Date shall
be no earlier than May 1, 2005
2.5 Deliveries at the Closing.
At the Closing, (i) Aptus will deliver to Insynq the various certificates,
instruments, and documents referred to in Section 8.2 below; (ii) Insynq will
deliver to Aptus the various certificates, instruments, and documents referred
to in Section 9.3 below; (iii) Aptus will execute, acknowledge (if appropriate),
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and deliver to Insynq: (A) assignments (including real property and Intellectual
Property transfer documents) in the forms attached hereto as Exhibit "A"; and
(B) such other instruments of sale, transfer, conveyance, and assignment as
Insynq and its counsel reasonably may request; and (iv) Insynq will execute,
acknowledge (if appropriate), and deliver to Aptus: (A) an assumption in the
form attached hereto as Exhibit "B"; and (B) such other instruments of
assumption as Aptus and its counsel reasonably may request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF APTUS
Aptus represents and warrants to Insynq as of the date of this Agreement
as follows:
3.1 Existence; Good Standing; Corporate Authority; Compliance with Law.
(a) Aptus is a corporation duly incorporated, validly existing,
and in good standing (including tax good standing) under the laws of the State
of Nevada. Aptus is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws of the jurisdictions listed
in Schedule 3.1, which list contains all jurisdictions in which the character of
the properties owned or leased by it or in which the transaction of its business
makes such qualification necessary, in each case except as would not,
individually or in the aggregate, reasonably be expected to have an adverse
effect (as defined in subparagraph (c) below).
(b) Aptus has all requisite corporate power and authority to own,
operate, and lease the Acquired Assets and carry on its business as presently
conducted.
(c) The sale of the Acquired Assets by Aptus is not in violation
of any law, ordinance, governmental rule or regulation nor is the sale of the
Acquired Assets in violation of any order, judgment, or decree of any court,
governmental authority, or arbitration board or tribunal.
3.2 Authorization, Validity and Effect of Agreements.
(a) Aptus has the requisite corporate power and authority to
execute and deliver this Agreement and all agreements and documents contemplated
hereby. The consummation by Aptus of the transactions contemplated hereby has
been duly authorized by all requisite corporate action of Aptus. This Agreement
has been duly executed and delivered by Aptus and, assuming the due
authorization, execution and delivery by Insynq, constitutes, and all agreements
and documents contemplated hereby (when executed and delivered pursuant hereto
for value received) will constitute valid and legally binding obligations of
Aptus, enforceable against Aptus in accordance with their respective terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, or other similar laws relating to creditors'
rights and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including,
without limitation, the possible unavailability of specific performance, other
injunctive relief or other equitable remedies and an implied covenant of good
faith and fair dealing.
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(b) The necessary and affirmative vote of the holders of the
issued and outstanding shares of Aptus Stock present in person or by proxy at a
duly convened and held meeting of the stockholders of Aptus to approve the sale
of Aptus Assets pursuant to the terms hereof has been obtained.
3.3 No Violation.
Neither the execution or delivery by Aptus of this Agreement and all agreements
or documents contemplated therein nor the consummation by Aptus of the
transactions contemplated therein, will: (i) conflict with or result in a breach
of any provisions of the Articles of Incorporation or Bylaws of Aptus; (ii)
except as set forth in Schedule 3.3, violate, conflict with, result in a breach
of any provision of, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, result in the
termination or in a right of termination or cancellation of, accelerate the
performance required by, result in the triggering of any payment or other
obligations pursuant to, result in the creation of any lien, security interest,
charge or encumbrance upon any of the Acquired Assets, or result in being
declared void, voidable, or without further binding effect, any of the terms,
conditions, or provisions of any note, bond, mortgage, indenture, loan
agreement, deed of trust, or any license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Aptus is a
party, or by which Aptus or any of its properties is bound or affected; (iii)
violate any law, statute, rule, regulation, judgment, or decree applicable to
Aptus; or (iv) require any consent, approval, or authorization of, or
declaration, filing, or registration with, any governmental or regulatory
authority.
3.4 Financial Statements.
The audited balance sheet ("Aptus Balance Sheet") and statement of operations as
of and for the 12 (twelve) months ended December 2003, audited by ▇▇ ▇▇▇▇ &
Company, attached to Schedule 3.4, are prepared in accordance with GAAP
consistently applied throughout the periods involved except as otherwise set
forth therein and present fairly the financial condition of Aptus as of such
date and the results of operations of Aptus for the year 9 (nine)months then
ended, except that such financial statements are subject to normal adjustments
that are not and are not expected to be, individually or in the aggregate,
material in amount and do not include certain notes which may be required by
GAAP.
3.5 Absence of Undisclosed Liabilities.
Except as and to the extent reflected or reserved against in Aptus Balance Sheet
or set forth in Schedule 3.5, at the date of Aptus Balance Sheet, Aptus did not
have any obligation or liability of any kind whatsoever (whether accrued,
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absolute, contingent, unliquidated, civil, criminal, or otherwise and whether
due or to become due), whether or not any such liability or obligation would
have been required to be disclosed on a balance sheet prepared in accordance
with GAAP, that, individually or in the aggregate, could have a Material Adverse
Effect on Aptus.
3.6 Absence of Certain Changes or Events.
(a) Except as set forth on Schedule 3.6, since December 31, 2004,
no event or events have occurred, which individually or in the aggregate have
had an Aptus Material Adverse Effect, and there exists no condition or
contingency that could reasonably be expected to result in an Aptus Material
Adverse Effect.
(b) Since the date of Aptus Balance Sheet and except as set forth
in Schedule 3.6, Aptus has not:
(i) declared, set aside, paid, or made any dividend or other
distribution on or in respect of any shares of its capital stock or directly or
indirectly redeemed, retired, purchased, or otherwise acquired any such shares
or any option, warrant, conversion privilege, preemptive right, or other right
or agreement to acquire the same or any other securities convertible into or
evidencing the right to purchase or otherwise acquire the same;
(ii) made any amendments to its Articles of Incorporation or
Bylaws:
(iii) made any change in the number of shares of its capital
stock authorized, issued, or outstanding or authorized, issued, granted, or made
any option, warrant, conversion privilege, preemptive right, or other right or
agreement to acquire the same or any other securities convertible into or
evidencing the right to acquire the same;
(iv) incurred any indebtedness or borrowed money other than
as set forth in Schedule 3.7(b)(iv); which borrowings shall not exceed $5,000 in
the aggregate;
(v) incurred any obligation or liability (contingent or
otherwise), outside the Ordinary Course of Business;
(vi) discharged or satisfied any lien or encumbrance or paid
any obligations or liability (fixed or contingent) other than current
liabilities paid to unrelated parties, wages paid to officers and employees and
director's fees paid to directors, each in the Ordinary Course of Business;
(vii) mortgaged, pledged, or subjected to any lien, charge, or
other encumbrance any of its respective properties or assets (tangible or
intangible) except liens for current property taxes not yet due and payable;
(viii) sold, assigned, leased, transferred or otherwise
disposed of, or agreed to sell, assign, lease, transfer or otherwise dispose of,
any of its tangible assets other than sales of inventory in the Ordinary Course
of Business;
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(ix) entered into any transaction, contract, or commitment;
(x) made any capital expenditures or any commitment
therefore in excess of $1,000 in the aggregate except as consented to by Insynq;
(xi) adopted or made any change in any executive compensation
plan, bonus plan, incentive compensation plan, deferred compensation agreement,
or other employee benefit plan or arrangement;
(xii) entered into any employment or consulting agreement or
arrangement, or granted or paid any bonus, or made or granted any general wage
or salary increase or any specific increase in the wages or salary of any
employee;
(xiii) suffered any casualty loss or damage, whether or not
such loss or damage shall have been covered by insurance;
(xiv) canceled or compromised any debt or claim except for
adjustments made in the Ordinary Course of Business that, in the aggregate, are
not material, or waived or released any rights that are material;
(xv) terminated, amended, or modified any agreement or
instrument described in Schedule 3.7;
(xvi) entered into any transaction with any stockholder,
officer, director, or key employee of Insynq or any affiliate of any such person
other than the payment of wages and salaries and other benefits under employee
benefit plans in existence prior to December 31, 2005;
(xvii) made any loans or advances to, guaranties for the
benefit of, or investments in, any person;
(xviii) made cash charitable contributions;
(xix) merged or consolidated with, or acquired all or
substantially all of the assets, capital stock, or business of any other person;
(xx) introduced any material change with respect to its
method of accounting or accounting practice by Aptus; or
(xxi) agreed or committed to do any of the things described in
this Section 3.6.
3.7 No Contracts, Etc.
Except as set forth in Schedule 3.7, Aptus is not a party to or liable under any
of the following:
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(a) any lease of real property;
(b) any lease of personal property;
(c) any contract for any intellectual property rights, if any;
(d) any employment and consulting agreements covering any employee
of, or consultant to, Aptus;
(e) any deferred compensation agreements, employee stock option
plans, group life, hospitalization or disability insurance, severance policies
and other plans and arrangements providing benefits for employees of Aptus;
(f) any bank accounts and safe deposit boxes of Aptus;
(g) any loan agreements, credit agreements, indentures, and other
documents or instruments relating to the borrowing of money by Aptus and all
promissory notes and other evidences of indebtedness of Aptus, including without
limitation, all such documents and instruments relating to or evidencing any
stockholder loans to Aptus; and
(h) any guaranties of obligations of Aptus under all loan
agreements, leases, and other documents and instruments to which Aptus is a
party or by which it is bound, by any officer or director of Aptus or any
affiliate of any of the foregoing.
3.8 Litigation.
Except as set forth in Schedule 3.8, to the knowledge of Aptus, there are no
claims, actions, suits, investigations, or proceedings (public or private)
pending against or affecting Aptus or any of its properties or assets, at law or
in equity, before or by any federal, state, municipal, or other governmental or
non-governmental department, commission, board, bureau, agency, court, or other
instrumentality, or arbitrator or by any private person or entity. To the
knowledge of Aptus, there are no claims, actions, suits, investigations, or
proceedings (public or private) threatened against or affecting Aptus or any of
its properties or assets, at law or in equity, before or by any federal, state,
municipal, or other governmental or non-governmental department, commission,
board, bureau, agency, court, or other instrumentality, or arbitrator or by any
private person or entity, except for any of the foregoing which would not,
individually or in the aggregate, reasonably be expected to have an Aptus
Material Adverse Effect.
3.9 Authorization.
Other than the approval of the stockholders and directors of Aptus, the
execution, delivery and performance by Aptus of this Agreement and the
consummation by Aptus of the transactions contemplated hereby require no
consents of any party and no action by or in respect of, or filing with, any
governmental body, agency, official or authority.
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3.10 Taxes.
All Tax Returns required to be filed by Aptus have been timely filed and are
true, correct, and complete in all material respects, and all Taxes payable
pursuant thereto have been timely paid or appropriate extensions have been filed
for such periods. No deficiency or adjustment in respect of any Taxes that was
assessed against Aptus remains unpaid and no such claim or assessment is pending
or, to the knowledge of Aptus, threatened. Aptus has made all withholding of
Taxes required to be made under all applicable federal, state, and local tax
regulations and such withholdings have either been paid on a timely basis to the
respective governmental agencies or set side in accounts for such purpose or
accrued, reserved against and entered upon the books of Aptus. There are no
outstanding agreements or waivers extending the statutory period of limitations
applicable to any tax return or tax liability of Aptus, and there is no proposed
liability for any Taxes for which there is not an adequate reserve reflected on
the Aptus Balance Sheet. Aptus has not filed any consent with the Internal
Revenue Service described in Section 341(f) of the Code.
3.11 Proprietary Rights.
Except as set forth on Schedule 3.11(a): to Aptus' knowledge, Aptus has not
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Proprietary Rights of third parties, (ii) Aptus (and its
employees with responsibility for Proprietary Rights matters) has not received
any written charge, complaint, claims, demand, or notice alleging any such
interference, infringement, misappropriation, or violation (including any claim
that Aptus must license or refrain from using any Proprietary Rights of any
third party), (iii) to Aptus's knowledge, there is no basis for any as-yet
unasserted charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation (including any claim
that Aptus must license or refrain from using any Proprietary Rights of any
third party), or (iv) to Aptus's knowledge, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with any
Proprietary Rights of Aptus.
3.12 ERISA.
Aptus does not contribute to and is not obligated to contribute to, and has
never maintained or contributed to or been obligated to contribute to, (i) any
Multiple Employer Plan, (ii) any a Multiple Employer Plan or (iii) any other
incentive or retirement plan, including but not limited to a pension plan.
3.13 Fees.
Except as set forth in Schedule 3.13 there are no claims for legal, accounting,
financial advisory, or investment bankers' fees, brokerage commissions, finders'
fees, or similar compensation in connection with the transactions contemplated
by this Agreement based on any arrangement or agreement made by or on behalf of
Aptus.
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3.14 Books and Records.
Except as set forth in Schedule 3.14 the financial books, records, and work
papers of Aptus are complete and correct in all material respects, have been
maintained in accordance with good business practice and accurately reflect the
bases for the consolidated financial condition and results of operations of
Aptus set forth in the financial statements referred to in Section 3.4 hereof.
3.15 Disclosure.
No representation or warranty by Aptus in this Agreement and no statement
contained in any document, certificate, or other writing prepared by Aptus or
its representatives and furnished by Aptus to Insynq pursuant to the provisions
hereof, affirmatively misstates a material fact or omits a material fact
necessary for such document, certificate, or writing to be, in good faith,
accurately and completely responsive in all material respects to the purpose
identified by Aptus to Insynq for which such information was furnished by Aptus
to Insynq.
ARTICLE IV
INTERIM OPERATING COVENANTS OF APTUS
4.1 Operations.
Between the date of this Agreement and the Closing, Aptus will:
(a) file on a timely basis all notices, reports or other filings
required to be filed with or reported to any federal, state, municipal or other
governmental department, commission, board, bureau, agency or any
instrumentality of any of the foregoing wherever located with respect to the
continuing operations of Aptus;
(b) maintain material compliance with all Governmental Permits and
all laws, rules, regulations and consent orders;
(c) file on a timely basis all complete and correct applications
or other documents necessary to maintain, renew or extend any site assessment,
permit, license, variance or any other approval required by any governmental
authority necessary and/or required for the continuing operation of Aptus's
business operations, whether or not such approval would expire before or after
the Closing; and
11
(d) advise Insynq promptly in writing of any material change in
any document or Schedule, including without limitation any Schedule, Exhibit or
other information delivered pursuant to this Agreement.
4.2 Meeting of Stockholders; Compliance with Nevada Corporate Law.
Aptus will take all action necessary in accordance with applicable law and their
respective charter documents to obtain requisite shareholder approval of this
Agreement and the transactions contemplated hereby, and to otherwise comply in
all respects with Nevada Corporate Law in connection with the transactions
contemplated by this Agreement.
4.3 No Change.
Between the date of this Agreement and the Closing, Aptus will not, without the
prior written consent of Insynq, or except as described in this Agreement:
(a) authorize, issue, transfer, distribute, or register any of its
securities;
(b) declare or pay any dividend or make any distribution in
respect of its capital stock whether now or hereafter outstanding, or purchase,
redeem or otherwise acquire or retire for value any shares of its capital stock;
(c) enter into any contract or commitment or incur or agree to
incur any liability or make any capital expenditures, except in the Ordinary
Course of Business;
(d) change or promise to change the compensation payable or to
become payable to any director, officer, employee or agent, or make or promise
to make any bonus payment to any such person;
(e) create, assume or otherwise permit the imposition of any
mortgage, pledge or other lien (except for current property taxes) or
encumbrance upon or grant any option or right of first refusal with respect to
any assets or properties whether now owned or hereafter acquired;
(f) sell, assign, lease or otherwise transfer or dispose of any
property or equipment other than in the Ordinary Course of Business;
(g) merge or consolidate or agree to merge or consolidate with or
into any firm, corporation or other entity;
12
(h) waive any material rights or claims;
(i) amend or terminate any material agreement or any site
assessment, permit, license or other right;
(j) enter into any other transaction outside the Ordinary Course
of its Business or prohibited hereunder;
(k) take any action or suffer or permit any event to occur that
would cause any representation or warranty in this Agreement to become untrue as
of the Closing; or
(l) take or permit any action which would have an adverse effect
on Insynq.
4.4 Access; Confidential Information.
Between the date of this Agreement and the Closing, Aptus will afford to the
officers and authorized representatives of Insynq, including, without
limitation, its counsel, independent auditors and investment bankers, access to
the facilities, plants, corporate properties and other properties, books and
records of Aptus and will furnish Insynq with such additional financial and
operating data and other information as to the business and properties of Aptus
as Insynq may from time to time reasonably request. Aptus will cooperate with
Insynq, its representatives and counsel in the preparation of any documents or
other material, which may be required by any governmental agency. Except as
necessary to comply with the terms of this Agreement, the rules and regulations
of the Nasdaq Electronic Bulletin Board and the SEC, Insynq will cause all
information obtained from Aptus in connection with the negotiation and
performance of this Agreement to be treated as confidential (except such
information which is in the public domain or which Insynq may be required to
disclose to any governmental agency, or pursuant to any court or regulatory
agency order) and will not use, and will not knowingly permit others to use, any
such confidential information in a manner detrimental to Aptus. Aptus covenants
and agrees not to disclose to any third persons other than its accountants,
brokers, bankers, investment advisers or legal counsel any of the specific terms
or provisions of this Agreement (including financial terms) prior to or after
the date hereof without the prior written consent of Insynq.
4.5 Obtain Consents.
Promptly after the execution of this Agreement, Aptus shall make all filings and
take all steps reasonably necessary to obtain all approvals and consents
required to be obtained by Aptus to consummate the transactions contemplated by
this Agreement.
4.6 Exclusivity.
Aptus agrees that it will not (and will use their best efforts to cause Aptus's
directors, officers, agents, representatives, and affiliates, and any other
person acting on their behalf not to) enter into any contract or agreement that
13
has as a purpose a business combination or merger, an issuance or sale of debt
or equity of Aptus (including the capital stock), a sale of a substantial
portion of the assets of Aptus, or a transaction comparable to or similar to
this Agreement (any of the foregoing, a "Competing Transaction"). Aptus will
promptly notify Insynq if it receives any offer, inquiry or proposal with
respect to a Competing Transaction and the details thereof, and keep Insynq
informed with respect to each such offer, inquiry or proposal. Aptus will
provide Insynq with copies of all such offers, inquiries or proposals, which are
in writing.
ARTICLE V
INTERIM OPERATING COVENANTS OF INSYNQ
5.1 Operations.
Between the date of this Agreement and the Closing, each of Insynq will:
(a) file on a timely basis all notices, reports or other filings
required to be filed with or reported to any federal, state, municipal or other
governmental department, commission, board, bureau, agency or any
instrumentality of any of the foregoing wherever located with respect to the
continuing operations of Insynq, including, without limitation, the SEC and
Nasdaq Bulletin Board;
(b) maintain material compliance with all Governmental Permits and
all laws, rules, regulations and consent orders;
(c) file on a timely basis all complete and correct applications
or other documents necessary to maintain, renew or extend any site assessment,
permit, license, variance or any other approval required by any governmental
authority necessary and/or required for the continuing operation of Insynq's
business operations, whether or not such approval would expire before or after
the Closing Date; and
(d) advise Aptus promptly in writing of any material change in any
document or Schedule, including without limitation any Schedule, Exhibit or
other information delivered pursuant to this Agreement.
5.2 Compliance with Nevada Corporate Law.
Insynq will take all action necessary in accordance with applicable law and
their respective charter documents to obtain requisite approval of this
Agreement and the transactions contemplated hereby, and to otherwise comply in
all respects with Nevada Corporate Law in connection with the transactions
contemplated by this Agreement.
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5.3 Obtain Consents.
Promptly after the execution of this Agreement, Insynq shall make all filings
and take all steps reasonably necessary to obtain all approvals and consents
required to be obtained by Insynq to consummate the transactions contemplated by
this Agreement.
ARTICLE VI
ADDITIONAL COVENANTS OF THE PARTIES
6.1 Filings; Other Action
Subject to the terms and conditions herein provided, Aptus and Insynq shall
cause any appropriate other party to: (a) use all reasonable efforts to
cooperate with one another in (i) determining which filings are required to be
made prior to the Closing with, and which consents, approvals, permits, or
authorizations are required to be obtained prior to the Closing from
governmental or regulatory authorities of the United States, the several states
and foreign jurisdictions in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits, or authorizations; and (b) use all reasonable efforts to take, or cause
to be taken, all other action and do, or cause to be done, all other things
necessary, proper, or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
6.2 Further Action.
Each party hereto shall, subject to the fulfillment at or before the Closing of
each of the conditions set forth herein or the waiver thereof, directly or by or
through its officers or directors, perform such further acts and execute such
documents whether before or after the Closing as may be reasonably required to
effect this Agreement. In addition, subject to the limitations set forth in this
Agreement, and unless specifically prohibited by applicable law, each party will
use its best efforts to cause all of the conditions to Closing set forth in this
Agreement that are within its control to be satisfied prior to the Closing Date
and will not take any action inconsistent with its obligations under this
Agreement or which could hinder or delay the consummation of the transactions
contemplated by this Agreement or that would cause any representation, warranty,
or covenant made by it in this Agreement or in any certificate, list, exhibit,
or other instrument furnished or to be furnished pursuant hereto, or in
connection with the transaction contemplated hereby, to be untrue in any
material respect as of the Closing.
15
6.3 Expenses.
If this Agreement is not consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
6.4 Brokers and Finders Fees.
Each party shall pay and be responsible for any broker's, finder's or financial
advisory fee incurred by such party in connection with the transactions
contemplated by this Agreement.
6.5 Notices of Certain Events.
Each party shall promptly notify the other party hereto of:
(a) any notice or other communication from any person alleging
that the consent of such person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or involving or
otherwise affecting such party that, if pending on the date of this Agreement,
would have been required to have been disclosed pursuant to this Agreement.
6.6 Completion of Due Diligence.
Each party acknowledges that this Agreement is being executed prior to the
completion of necessary due diligence and prior to the preparation and review of
the appropriate Schedules and Exhibits. Each party shall grant the other and
each of their officers, attorneys, accountants and advisors, complete and
unfiltered access to all information, documentation and personnel of the other.
Each party shall conduct such diligence within 10 days of the date of this
Agreement unless such party notifies the other parties in to the Agreement that
they require further time and information to complete their investigations to
their satisfaction, including information contained or in Schedules or Exhibits
to this Agreement.
6.7 Preparation of Schedules and Exhibits.
Each party to this Agreement shall prepare and attach all necessary Schedules
and Exhibits after the execution of this Agreement, but no later than the
Closing Date, which information shall be true and correct as of the Closing
Date, unless otherwise specified therein.
16
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to Each Party's Obligations.
The respective obligation of each party to effect the transactions
contemplated thereby shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions:
(a) This Agreement and the transactions contemplated hereby shall
have been approved in the manner required by applicable law by the holders of
the issued and outstanding shares of capital stock of Aptus and of Insynq.
(b) No party to this Agreement shall be subject to any order or
injunction of a court of competent jurisdiction that prohibits the consummation
of the transactions contemplated by this Agreement. In the event any such order
or injunction shall have been issued, each party agrees to use its reasonable
efforts to have any such injunction lifted or order reversed.
(c) No material action, suit, proceeding, or investigation
involving either party shall have been initiated and be continuing, and all
necessary approvals under state securities laws relating to the issuance or
trading of Insynq Stock to be issued in connection with this transaction shall
have been received.
(d) All consents, authorizations, orders, and approvals of (or
filings or registrations with) any governmental commission, board, or other
regulatory body required in connection with the execution, delivery, and
performance of this Agreement shall have been obtained or made, except for
filings required to be filed after the Closing Date.
(e) No action, suit, or proceeding shall be pending or threatened
by or before any court or governmental body in which an unfavorable judgment,
order, or decree would prevent any of the transactions contemplated hereby or
cause any such transaction to be declared unlawful or rescinded or that could
reasonably be expected to cause an Aptus Material Adverse Effect or a Material
Adverse Effect.
(f) All documents and instruments to be delivered by the parties
in connection with the transactions contemplated hereby shall be in form and
substance reasonably satisfactory to the parties and their respective counsel,
and the parties shall have received such other documents and instruments as they
may reasonably request in connection therewith.
(g) Each party to this Agreement shall have completed to its
satisfaction, due diligence investigation on the other, its shareholders, its
business and operations, financial condition, outstanding liabilities, business
prospects and other material information.
17
(h) Each party to this Agreement shall have provided the
information necessary to complete the Schedules and Exhibits to this Agreement
and the Schedules and Exhibits must be completed and the information contained
therein must be satisfactory to each party to this Agreement, in each such
party's sole discretion.
(i) This Agreement shall be modified and amended to reflect
changes, provisions, terms and conditions agreed upon by the parties hereto
prior to the Closing.
(j) None of these transactions contemplated hereby shall have been
enjoined by the court or by any federal or state governmental branch, agency,
commission or regulatory authority and not suit or other proceeding challenging
the transactions contemplated hereby shall have been threatened or instituted
and no investigative or other demand shall have been made by any federal or
state governmental branch, agency, commission or regulatory authority.
(k) Insynq shall continue to be listed and shall not have received
any notice of impending delisting or suspension from the Nasdaq Electronic
Bulletin Board.
7.2 Conditions to Obligation of Aptus to Effect this Agreement.
The obligation of Aptus to effect the transactions contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions:
(a) Insynq shall have performed or be in compliance in all
respects with agreements contained in this Agreement required to be performed on
or prior to the Closing Date. The representations and warranties of Insynq
contained in this Agreement and in any document delivered in connection herewith
shall be true and correct as of the Closing Date, and Aptus shall have received
a certificate of the President of Insynq, dated the Closing Date, certifying to
such effect.
(b) There shall have been delivered to Aptus certificates, dated
within five days of the Closing Date, of the Secretary of State of the State of
Nevada, with respect to the incorporation, subsistence, and good legal standing
of Insynq.
(c) All approvals and all consents and approvals of any third
parties required in connection with the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby, shall have been
obtained and delivered to Aptus.
(d) There shall have been delivered to Aptus certificates, dated
as of the Closing Date, of the President and Secretary, respectively, of Insynq
as set forth as Exhibit 8.2(d), (i) to the effect that the Articles of
Incorporation of Insynq have not been amended since the date of this Agreement,
(ii) attaching a true and complete copy of the Bylaws of Insynq as in effect on
the Closing Date, (iii) attaching a true and complete copy of the resolutions of
the Board of Directors of Insynq approving the execution and delivery of this
Agreement and authorizing the consummation of the transactions contemplated
hereby; and (iv) to the effect that each of the provisions of Section 8.2(a) are
true and correct as of the Closing Date.
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(e) There shall have been delivered to Aptus certificates, dated
as of the Closing Date, with respect to the incumbency and signatures of all
officers of Insynq signing this Agreement and any other certificate, agreement,
or instrument delivered on behalf of Insynq in connection with this Agreement.
(f) Since the Closing Date, there shall not have been any Material
Adverse Effect in the condition (financial or otherwise), business, properties
or assets of Insynq.
7.3 Conditions to Obligation of Insynq to Effect this Agreement.
The obligation of Insynq to effect the transactions contemplated in this
Agreement shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions:
(a) Aptus shall have performed or be in compliance in all respects
with agreements contained in this Agreement required to be performed on or prior
to the Closing Date. The representations and warranties of Aptus contained in
this Agreement and in any document delivered in connection herewith shall be
true and correct as of the Closing Date, and Insynq shall have received a
certificate of the President of Aptus, dated the Closing Date, certifying to
such effect.
(b) There shall have been delivered to Insynq certificates, dated
within five days of the Closing Date, of the Secretary of State of the State of
Nevada, with respect to the incorporation, subsistence, and good legal standing
of Aptus.
(c) All approvals of Aptus's shareholders, and all consents and
approvals of any third parties required in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been obtained and delivered to Insynq.
(d) There shall have been delivered to Insynq certificates, dated
as of the Closing Date, of the President and Secretary, respectively, of Aptus
as set forth as Exhibit 8.3(d), (i) to the effect that the Articles of
Incorporation of Aptus have not been amended since the date of this Agreement,
(ii) attaching a true and complete copy of the Bylaws of Aptus as in effect on
the Closing Date, (iii) attaching a true and complete copy of the resolutions of
the Board of Directors and shareholders of Aptus approving the execution and
delivery of this Agreement and authorizing the consummation of the transactions
contemplated hereby; and (iv) to the effect that each of the provisions of
Section 8.3(a) are true and correct as of the Closing Date.
(e) There shall have been delivered to Insynq certificates, dated
as of the Closing Date, with respect to the incumbency and signatures of all
officers of Aptus signing this Agreement and any other certificate, agreement,
or instrument delivered on behalf of Aptus in connection with this Agreement.
(f) Since the Closing Date, there shall not have been any Material
Adverse Effect in the condition (financial or otherwise), business, properties
or assets of Aptus.
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ARTICLE VIII
TERMINATION
8.1 Termination by Mutual Consent.
This Agreement may be terminated at any time prior to the Closing Date, by the
mutual consent of Insynq and Aptus.
8.2 Termination by Either Party.
This Agreement may be terminated by either party under any of the following
conditions:
(a) the Closing has not occurred by June 1, 2005; provided that
the right to terminate this Agreement pursuant to this clause shall not be
available to any party whose breach of any provision of this Agreement results
in the failure of the transactions contemplated herein to be consummated by such
time unless otherwise agreed in writing;
(b) there shall be any law or regulation that makes consummation
of the transaction contemplated herein illegal or otherwise prohibited or if any
judgment, injunction, order or decree enjoining any party from consummating the
Agreement is entered and such judgment, injunction, order or decree shall have
become final and non-appealable; provided, that the party seeking to terminate
this Agreement pursuant to this clause shall have used its best efforts to
remove such injunction, order or decree.
(c) breach of or any inability to fulfill any representation or
warranty or event which would constitute a breach upon the Closing hereof, not
cured to the other parties' satisfaction by June 30, 2005.
8.3 Effect of Termination and Abandonment.
In the event of termination of this Agreement and the abandonment of this
transaction pursuant to this Article IX, all obligations of the parties hereto
shall terminate, except the obligations of the parties pursuant to this Section
9.3 and except for the provisions of Sections 10.1, 10.3, 10.4, 10.6, 10.7,
10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, and 10.16, and any
confidentiality agreement signed by the parties hereto.
20
8.4 Extension; Waiver.
At any time prior to the Closing Date, any party hereto, by action taken by its
Board of Directors, may, to the extent legally allowed, (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties made to
such party contained herein or in any document delivered pursuant hereto, or (c)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE IX
GENERAL PROVISIONS
9.1 Notices.
Any notice required to be given hereunder shall be sufficient if in writing, and
sent by facsimile transmission and by same day or overnight courier service
(with proof of service), hand delivery or certified or registered mail (return
receipt requested and first-class postage prepaid), addressed as follows:
If to Insynq: Insynq
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Aptus: Aptus Corp.
With copies to: ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or fax number as any party may specify by written notice
so given, and such notice shall be deemed to have been delivered as of the date
so telecommunicated, personally delivered, or delivered by courier or 5 days
after mailing thereof if received prior to 5:00 p.m. in the place of receipt and
such day is a business day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until the
next succeeding business day in the place of receipt.
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9.2 Assignment, Binding Effect.
Neither this Agreement nor any of the rights, interests, or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or certain stockholders of
Aptus and other named beneficiaries of covenants or agreements in the Agreement,
or their respective heirs, successors, executors, administrators, and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
9.3 Entire Agreement.
This Agreement, the Exhibits, Insynq Disclosure Schedule, the confidentiality
agreements between the parties hereto and any schedules or agreements delivered
in connection with this Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
information previously provided, addition to or modification of any provision of
this Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
9.4 Amendment.
This Agreement may be amended by the parties hereto, by action taken by their
respective Boards of Directors, at any time, but no amendment shall be made
which by law requires the further approval of stockholders without obtaining
such further approval. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
9.5 Subsequent Actions.
If, at any time after the Closing Date, Insynq shall consider or be advised that
any deeds, bills of sale, assignments, assurances or any other actions or things
are necessary or desirable to continue in, vest, perfect or confirm of record or
otherwise in the Insynq's right, title or interest, in, to or under any of the
rights, properties, privileges, franchises or assets of Aptus acquired or to be
acquired by Insynq as a result of, or in connection with, this Agreement, or
otherwise to carry out the intent of this Agreement, the officers and directors
of Aptus agree to execute and deliver, in the name and on behalf of Aptus all
such deeds, bills of sale, assignments and assurances and to take and do, in the
name and on behalf of each of such corporations or otherwise, all such other
actions and things as may be necessary or desirable to vest, perfect or confirm
any and all right, title and interest in, to and under such rights, properties,
privileges, franchises or assets in Insynq or otherwise carry out the intent of
this Agreement.
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9.6 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Nevada without regard to its rules of conflict of laws.
9.7 Counterparts.
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto. Executed counterparts
transmitted by fax shall be effective as originals.
9.8 Headings.
Headings of the Articles and Sections of this Agreement are for the convenience
of the parties only, and shall be given no substantive or interpretive effect
whatsoever.
9.9 Interpretation.
In this Agreement, unless the context otherwise requires, words describing the
singular number shall include the plural and vice versa, and words denoting any
gender shall include all genders and words denoting natural persons shall
include corporations and partnerships and vice versa.
9.10 Waivers.
Except as provided in this Agreement, no action taken pursuant to this
Agreement, including, without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
9.11 Attorneys' Fees.
If any arbitration, litigation, action, suit or other proceeding is instituted
to remedy, prevent or obtain relief from a breach of this Agreement, in relation
to a breach of this Agreement or pertaining to a declaration of rights under
this Agreement, the prevailing party will recover all such party's attorneys'
fees incurred in each and every such action, suit or other proceeding, including
any and all appeals or petitions therefrom. As used in this Agreement,
attorneys' fees will be deemed to be the full and actual cost of any legal
services actually performed in connection with the matters involved, including
those related to any appeal or the enforcement of any judgment, calculated on
the basis of the usual fee charged by attorneys performing such services, and
will not be limited to "reasonable attorneys' fees" as defined in any statute or
rule of court.
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9.12 Survival.
All representations and warranties of any party contained in this Agreement
shall survive the execution and delivery of this Agreement and the Closing until
24 months after the Closing.
9.13 Incorporation of Exhibits.
The Schedules and all Exhibits and schedules attached hereto and referred to
herein are hereby incorporated herein and made a part hereof for all purposes as
if fully set forth herein.
9.14 Severability.
Any term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction unless the same is material to the terms of this Agreement,
in the judgment of either party to this Agreement, in which case the parties
shall negotiate in good faith to revise the same so as to be valid or
enforceable. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
9.15 Enforcement of Agreement.
The parties hereto agree that irreparable damage would occur in the event that
any of the provisions of this Agreement was not performed in accordance with its
specific terms or was otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.16 Consent.
Whenever the consent or approval of a party is required by the terms of this
Agreement, unless otherwise provided, the same shall not be unreasonably
withheld or delayed.
24
INSYNQ, INC, a Nevada corporation APTUS, CORP., a Nevada corporation
By:_______________________________ By:_______________________________
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer President
25
SCHEDULES
26
EXHIBIT A
ACCOUNTING SOFTWARE
Appgen Custom Suite Modules and Source Code
MyBooks Professional and Source Code
Executive Dashboard and Source Code
Appgen Custom Suite, Executive Dashboard and MyBooks Professional - Names
Trademarks, Brands, Logos and Marketing Materials
The right to market and sell the products as well as required underlying runtime
and database licensing and rights and rights to use the Appgen name pursuant to
a Marketing and License Distribution Agreement
Quoting Software
QwikQuote Professional Software, Trademark, Name and Brand and Source code
27
EXHIBIT B
28
Schedule 3.1 Existence: Good Standing; Corporate Authority; Compliance with Law
State of Washington
State of Delaware
Schedule 3.3 No Violation
None
Schedule 3.5 Absence of Undisclosed Liabilities
None
Schedule 3.6 Absence of Certain Changes or Events
3.6(a)
NONE
3.6(b)(ii)
APTUS, CORP.
CERTIFICATE OF AMENDMENT NO. 3
OF
CERTFICATE OF INCORPORATION
Pursuant to Section 242 of the Delaware Corporation Law (the "DGCL"),
Aptus, Corp., a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. The Certificate of Incorporation of the Corporation is hereby
amended in the following manner:
Article Five of the Corporation's Certificate of incorporation is
hereby amended to include:
29
ARTICLE FIVE
SHARES
The total number of shares of stock which the Corporation shall have
authority to issue is 305,000,000 shares, consisting of 250,000,000 shares of
Common Stock having a par value of $.001 per share, 5,000,000 shares of Class A
Common Stock having a par value of $.00l and 50,000,000 shares of Preferred
Stock having a par value of $.001 per share.
PREFERRED STOCK. Shares of preferred stock may be issued from time
to time in one or more series as may from time to time be determined by the
Board of Directors, and for such consideration as shall be fixed by the Board of
Directors. Each series shall be distinctly designated. All shares of any one
series of the preferred stock shall be alike in every particular, except that
there may be different dates from which dividends thereon, if any, shall be
cumulative, if made cumulative. The powers, preferences, participating, optional
and other rights of each such series and qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding. Subject to the provisions of subparagraph (1) of
Paragraph (d) of this Article V, the Board of Directors of this Corporation is
hereby expressly granted authority to fix by resolution or resolutions adopted
prior to the issuance of any shares of each particular series of preferred
stock, the designation, powers, preferences and relative, participating,
optional and other rights and the qualifications, limitations and restrictions
thereof, if any, of such series, including, without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
preferred stock which shall constitute, the series, which number may be
increased (except as otherwise fixed by the Board of Directors) or
decreased (but not below the number of shares thereof outstanding) from
time to time by action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions upon
which, dividends, if any, on shares of the series shall be paid, the
extent of preferences or relation, if any, of such dividends to the
dividends payable on any other class or classes of stock of this
Corporation, or on any series of preferred stock, and whether such
dividends shall be cumulative or noncumulative;
(3) The right, if any, of the holders of shares of the series to
convert the same into, or exchange the same for any other series, or any
other class or classes of stock of this Corporation, and the terms and
conditions of such conversion or exchange;
(4) Whether shares of the series shall be subject to redemption,
and the redemption price or prices, including, without limitation, a
redemption price or prices payable in shares of the Common Stock, cash or
other property and the time or times at which, and the terms and
conditions upon which, shares of the series may be redeemed;
(5) The rights, if any, of the holders of shares of the series
upon voluntary or involuntary liquidation merger, consolidation,
distribution or sale of assets, dissolution or winding up of this
Corporation;
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for shares of the series; and
30
(7) The voting powers, if any, of the holders of shares of the
series which may, without limiting the generality of the foregoing,
include (A) the right to more or less than one vote per share on any or
all matters voted upon by the shareholders and (B) the right to vote as a
series by itself or together without preferred stock as a class, upon such
matters, under such circumstances and upon such conditions as the Board of
Directors may fix, including, without limitation, the right, voting as a
series by itself or together with other series of preferred or together
with all series of preferred stock as a class, to elect one or more
directors of this Corporation in the event there shall have been a default
in the payment of dividends on any one or more series of preferred stock
or under such other circumstances and upon such conditions as the Board
may determine.
COMMON STOCK. The Common Stock shall be non-assessable and shall not
have cumulative voting rights or pre-emptive rights. In addition, the Common
Stock shall have the following powers, preferences, rights, qualifications,
limitations and restrictions:
(1) After the requirements with respect to preferential dividends
of preferred stock (fixed in accordance with the provisions of Paragraph
(a) of this Article V), if any, shall have been met and after this
Corporation shall comply with all the requirements, if any, with respect
to the setting aside of funds as sinking funds or redemption or purchase
accounts (fixed in accordance with provisions of Paragraph (a) of this
Article V) and subject further to any other conditions which may be fixed
in accordance with the provisions of Paragraph (a) of this Article V, the
holders of Common Stock shall be entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors;
(2) After distribution in full of the preferential amount (fixed
in accordance with the provisions of Paragraph (a) of this Article V), if
any, to be distributed to the holders of preferred stock in the event of a
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding up of this Corporation, the holders of the Common
Stock (and Class A Common Stock, as set forth in Paragraph (c) of this
Article V), shall be entitled to receive all of the remaining assets of
this Corporation, tangible and intangible, of whatever kind available for
distribution to stockholders, ratably in proportion to the number of
shares of the Common Stock (and Class A Common Stock) held by each; (3)
Shares of the Common Stock may be issued from time to time as the Board of
Directors shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(4) The holders of Common Stock shall have one vote for each share
of Common Stock, for all matters submitted to the Corporation's
shareholders.
CLASS A COMMON STOCK.
The Class A Common Stock shall be non-assessable and shall not have
cumulative voting rights or pre-emptive rights. In addition, the Class A Common
Stock shall have the following powers, preferences, rights, qualifications,
limitations and restrictions:
31
(1) The holders of Class A Common Stock shall have three (3) votes
for each share of Class A Common Stock, on all matters submitted to the
Corporation's shareholders.
(2) Each holder of record of Class A Common Stock may at any time
or from time to time, in the holder's sole discretion and option, convert
any whole number or all of the holder's Class A Common Stock into fully
paid and nonassessable Common Stock at the rate (subject to adjustment as
provided below) of one share of Common Stock for each share of Class A
Common Stock surrendered for conversion;
(3) The conversion of Class A Common Stock into Common Stock may
be effected by any holder of Class A Common Stock surrendering the
holder's certificate or certificates for the Class A Common Stock to be
converted, duly endorsed, at the office of the Corporation or any transfer
agent for the Class A Common Stock, together with a written notice to the
Corporation that the holder elects to convert all or a specified number of
shares of Class A Common Stock and stating the name or names in which the
holder desires the certificate or certificates for the Class A Common
Stock to be issued. The Corporation shall immediately issue and deliver to
the holder or the holder's nominee or nominees, a certificate or
certificates for the number of Common Stock to which the holder shall be
entitled. The conversion shall be deemed to have been made at the close of
business on the date of the surrender and the person or persons entitled
to receive the Common Stock issuable on the conversion shall be treated
for all purposes as the record holder or holders of those shares of Common
Stock on that date; (4) The number of shares of Common Stock into which
the Class A Common Stock may be converted shall be subject to adjustment
from time to time in the event of any capital reorganization,
reclassification of the stock of the Corporation, consolidation or merger
of the Corporation with or without another corporation or sale or
conveyance of all or substantially all of the assets of the Corporation to
another corporation or other entity or person. Each share of Class A
Common Stock shall subsequently be convertible into the kind and amount of
securities or other assets, or both, as are issuable or distributable in
respect of the number of shares of Common Stock into which each share of
Class A Common Stock is convertible immediately prior to the
reorganization, reclassification, consolidation, merger, sale or
conveyance. In those cases, appropriate adjustments shall be made by the
Board of Directors of the Corporation in the application of the provisions
set forth in this article with respect to the rights and interests of the
holders of Class A Common Stock, to the end that the provisions (including
provisions for adjustment of the conversion rate) shall be applicable, as
nearly as reasonably may be, in relation to any securities or other assets
deliverable on conversion of the Class A Common Stock;
32
(5) No fraction of a share of Common Stock shall be issued on
conversion of any Class A Common Stock but, in lieu of issuance of a
fractional share of Common Stock, the Corporation shall pay in cash for
the fractional share the pro rata fair market value of the fraction. The
fair market value shall be based, in the case of publicly traded
securities, on the last sale price for the securities on the business day
next prior to the date the fair market value is to be determined (or, in
the event no sale is made on that day, the average of the closing bid and
asked prices for that day on the principal stock exchange on which Common
Stock are traded or, if the Common Stock is not then listed on any
national securities exchange, the average of the closing bid and asked
prices for that day quoted by the NASDAQ System) or, in the case of other
property, the fair market value on the day determined by a qualified
independent appraiser expert in evaluating the property and appointed by
the Board of Directors of the Corporation. The determination of fair
market value shall be final and binding on the Corporation and on each
holder of Class A Common Stock or Common Stock;
(6) The Corporation shall at all times reserve and keep available
out of the authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the outstanding Class A Common Stock, the
number of shares of Common Stock as shall from time to time be sufficient
to effect the conversion of all outstanding Class A Common Stock and if,
at any time, the number of shares of authorized and unissued Common Stock
shall not be sufficient to effect conversion of the then outstanding Class
A Common Stock, the Corporation shall take the corporate action necessary
to increase the number of authorized and unissued shares of Common Stock
to the number sufficient for those purposes;
(7) Holders of Class A Common Stock shall not be entitled to share
in cash dividends declared by the Company;
(8) Holders of Class A Common Stock shall be entitled to share in
dividends declared in stock or other property of the Company without
distinction as to class and on the same basis as holders of Common Stock
in accordance with subparagraph (2) of Paragraph (b) of this Article V;
(9) All shares of Class A Common Stock held by a holder, shall
automatically be converted into shares of Common Stock upon the death of
such holder.
OTHER PROVISIONS.
(1) The relative powers, preferences and rights of each series of
preferred stock in relation to the powers, preferences and rights of each
other series of preferred stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or resolutions adopted
pursuant to authority granted in Paragraph (a) of this Article V, and the
consent by class or series vote or otherwise, of the holders of the
preferred stock of such of the series of preferred stock as are from time
to time outstanding shall not be required for the issuance by the Board of
Directors of any other series of preferred stock whether the powers,
preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that
33
the Board of Directors may provide in such resolution or resolutions
adopted with respect to any series of preferred stock that the consent of
the holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of preferred stock.
(2) Shares of the Common Stock and Class A Common Stock may be
issued from time to time, as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the Board of
Directors.
(3) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
pre-emptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any rights to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to
be executed as the __th day of March 2005.
Aptus, Corp.
By:_______________________
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary and Treasurer
34
SCHEDULE 3.7 NO CONTRACTS, ETC.
3.7(a) HQ Global Workplaces, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.7(b)
None
3.7(c)
None
3.7(d)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Consulting Agreement
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Consulting Agreement
Chien-▇▇▇ ▇▇▇ - Consulting Agreement
▇▇▇▇ ▇▇▇▇▇ - Asset Purchase Agreement Distribution Agreement,
Consulting Agreement and Security Agreement
▇▇▇▇ ▇▇▇▇ - Consulting and Non-Compete Agreement
▇▇▇▇▇ ▇▇▇▇ - Consulting and Non-Compete Agreement
The Staube Foundation - Consulting and Non-Compete Agreement
3.7(e)
None
3.7(f)
Union Bank of California - Account Number #0052032216
3.7(g)
▇▇▇▇▇ ▇▇▇▇▇ 5,000
O'Brien 5,000
▇▇▇▇▇ 5,000
▇▇▇▇ 15,000
35
Marview Holdings 10,000
Salomon 20,000
Green 2,500
Chase Family Trust 2,500
Suater 10,000
▇▇▇▇▇ 2,500
▇▇▇▇▇▇ 7,500
Absolute Internet 1,250
Dellenberg 5,000
3.7(h)
None
SCHEDULE 3.8 LITIGATION
None
SCHEDULE 3.11 PROPRIETARY RIGHTS
None
SCHEDULE 3.13 FEES
None
SCHEDULE 3.14 BOOKS AND RECORDS
None
36
EXHIBIT 8.2(D)
37
EXHIBIT 8.3(D)
38