SAN ▇▇▇▇▇ ▇▇▇▇▇▇ HILLS
CAPITAL
AGREEMENT,
made this 10th day of February, 2003 by and between Insynq, Inc.,
(hereinafter the “Company”) having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and San ▇▇▇▇▇ ▇▇▇▇▇▇ Hills Capital, Inc.,
(hereinafter the “Consultant”), having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Agreement will become effective on the
first day the consultation commences.
WHEREAS,
the Company desires to retain the Consultant for consulting services in connection
with the Company’s business affairs on a non-exclusive basis, and the Consultant is
willing to undertake to provide such services as hereinafter fully set forth:
WITNESSETH
NOW
THEREFORE, the parties agree as follows:
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1. |
Term: Six (6) months from the date hereof, provided, however that this
Agreement may be cancelled by either party with written notice provided seven
(7) days prior to the cancellation date. |
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2. |
Nature of Services: The Company hereby engages the Consultant to render
the services hereinafter described during the term hereof (its being understood
and agreed that the Consultant is free tender the same or similar services to
any other entity selected by it): |
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(a) |
Consult
with the Company concerning on-going strategic corporate planning and long
term investment policies, including any revision of the Company’s
business plan. |
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(b) |
Render
advice with respect to leasing and/or other financing arrangements. |
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(c) |
Assist
in negotiation of contracts with suppliers and major customers when so
required by the Company. |
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(d) |
Consult
with and advise the Company with regards to potential mergers and
acquisitions, whether the Company be the acquiring Company or the target
of acquisition. |
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(e) |
Review
press releases whenever appropriate to be made available to the press in
general, customers, suppliers and selected NASD broker/dealers, financial
institutions, and the Company’s shareholders. |
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(f) |
Evaluate
the Company’s managerial, marketing and sales requirements |
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(g) |
Evaluate
and advise the Company on it’s investor communications and investor
relations strategy. |
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3. |
Responsibilities of the Company: The Company shall provide the Consultant
with all financial and business information about the Company as reasonably
requested by the Consultant in a timely manner. In addition, executive officers
and directors of the Company shall make themselves available for personal
consultations either with the Consultant and/or third party designees, subject
to reasonable prior notice, pursuant to the request of the Consultant. |
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4. |
Compensation: For corporate financial advisory services, due diligence
and other services which will be provided to the Company from time to time over
the course of our engagement, the parties mutually agree that the Consultant
will be entitled to the following compensation: |
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(a) |
For
business development, strategic planning and other consulting work to be
accomplished not related to any public financing, the Company will pay a
monthly fee of $5,000 in cash plus $2,500 dollars Stock issued from the
Insynq 2002 Directors, Officers and Consultants stock plan and shall be
free trading unrestricted shares of Common Stockof the Company, calculated
at the closing bid price on the day documents are signed for the first
month, and calculated at the closing bid price on the monthly anniversary
date for the remainder of the term. The Company hereby irrevocably agrees
not to circumvent, avoid, bypass or obviate directly or indirectly, the
intent of this Agreement, to avoid payment of fees, in any transaction
with any corporation, partnership or individual, introduced by the
Consultant to the Company in connection with any project, any loans or
collateral or funding, or any other transaction involving any products,
transfers or contracts, or third party assignments thereof. |
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5. |
Expenses: The Company shall also reimburse the Consultant for actual
out-of pocket expenses including, but not limited to, facsimile, postage,
printing, photocopying, and entertainment, incurred by the Consultant without
the prior consent of the Company and in connection with the performance by the
Consultant of its duties hereunder, the Company and in connection with the
performance by the Consultant of its duties hereunder, the Company shall also
reimburse the Consultant for the costs of all travel and related expenses
incurred by the Consultant in connection with the performance of its services
hereunder, provided that all such costs and expenses have been authorized, in
advance, by the Company, and the Consultant shall not expend more than $500.00
for expenses without the prior written approval of the Company. |
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(a) |
Other
Services and Compensation: The Consultant may, from time to time
during the term hereof, present to the Company potential merger or
acquisition candidates. In the event of the Company consummates a business
combination with any such Company presented by the Consultant (whether the
Company is acquiring Company or the target Company or survives or does not
survive a merger), the Company will pay to the Consultant a fee in
accordance with the generally accepted industry standards (the ▇▇▇▇▇▇
Formula) or as may otherwise be agreed upon between the Consultant and the
Company in advance. In case of termination this Agreement or conclusion
thereof, these terms and conditions of this Section 6 will survive and be
in full effect for a period of twelve (12) months from the termination or
conclusion of this Agreement. |
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6. |
Indemnification: The Parties agree to indemnify and hold harmless each
other and their affiliates, and their respective officers, director, employees,
agents and controlling persons (The Parties and each such other persons and
entities being an “Indemnified Party” for the purposes of this
section) from and against any and all losses, claims, damages, and liabilities
to which such Indemnified Party may become subject under any applicable federal
or state law, or otherwise related to or arising out of any transaction
contemplated by this Agreement and the performance by the Consultant of the
services contemplated by this Agreement, and all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising therefrom, whether or not such Indemnified
Party is a party thereto; provided that the other party shall not be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Indemnified Party. The Indemnified Party shall
promptly notify the Party from which it is seeking indemnification, in writing,
of any such loss, claim, damage or liability as it is incurred and provide such
Party with the opportunity to defend against or settle such matter with counsel
of its choice. Any Party against whom indemnification may be sought shall not be
liable to indemnify or provide contribution for any settlement effected without
the indemnifying party’s prior written consent. In the event that the
foregoing indemnity is unavailable or insufficient to hold any Indemnified Party
harmless, then the other party shall contribute to the amounts paid or payable
by such Indemnified Party in respect of such losses, claims in such proportion
as is appropriate to reflect not only the relative benefits received by the
Parties, but also the relevant fault of each Party, as well as any other
relevant equitable considerations. |
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7. |
Complete Agreement: This Agreement contains the entire Agreement between
the parties with respect to the contents hereof supersedes all prior agreements
and understandings between the parties with the respect to such matters, whether
written or oral. Neither this Agreement, nor any term or provisions hereof may
be changed, waived, discharged or amended in any manner other than by any
instrument in writing, signed by the party against which the enforcement of the
change, waiver, discharge or amendment is sought. |
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8. |
Counterparts: This Agreement may be executed in two or more counterparts,
each of which shall be an original but all of which shall constitute one
Agreement. |
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9. |
Survival: Any termination of this Agreement shall not, however, affect
the on-going provisions of this Agreement which shall survive such termination
in accordance with their terms. |
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10. |
Disclosure: Any financial advice rendered by the Consultant pursuant to
this Agreement may not be disclosed publicly in any manner without the prior
written approval of the Consultant, unless required by law or statute or any
court, governmental or regulatory agency. All non-public information given to
the Consultant by the Company will be treated by the Consultant as confidential
information and the Consultant agrees not to make use of such information other
than in connection with its performance of this Agreement, provided however that
any such information may be disclosed if required by any court or governmental
or regulatory authority, board or agency. “Non-public information”
shall not include any information which (i) is or becomes generally available to
the public other than as a result of a disclosure by the Consultant; (ii) was
available to the Consultant prior to its disclosure to the Consultant by the
Company, provided that such information is not known by the Consultant to be
subject to another confidentiality agreement with another party; or (iii)
becomes available to the Consultant on a non-confidentiality basis from a source
other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company. |
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11. |
Notice: Any or all notices, designations, consents, offers, acceptance or
other communication provided for herein shall be given in writing and delivered
in person or by registered or certified mail, return receipt requested, directed
to the address shown below unless notice of a change of address is furnished: |
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to Consultant: |
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San ▇▇▇▇▇ ▇▇▇▇▇▇ Hills Capital, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
| If to
Company: |
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Insynq, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ |
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12. |
Severability: Whenever
possible, each provision of Agreement will be interpreted in such
manner as to be effective and valid under applicable law. If any
provision of this Agreement is held to be invalid, illegal or unenforceable
provision had never been contained herein. |
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(a) |
Except
as provided in Section 8, neither the Consultant nor its affiliates. Or
their respective officers, directors, employees, agents or
controlling persons shall be liable, responsible or accountable in
damages or otherwise to the Company or its affiliates, or their
respective officers, directors, employees, agents or controlling
persons for any act or omission performed or omitted by the
Consultant with the respect to the services provided by its pursuant or
otherwise relating to or arising out of this Agreement. |
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(b) |
All
final decisions with the respect to consultation, advice and services
rendered by the Consultant to the Company shall rest exclusively with
the Company, and Consultant shall not have any right or authority to
bind the Company to any obligation or commitment. |
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(c) |
The
parties hereby agree to submit any controversy or claim arising out of or
relating to this Agreement to final binding arbitration administered
by the American Arbitration Association (“AAA”) under its
Commercial Arbitration Rules, and further agree that immediately
after the filing of a claim as provided herein they shall in good
faith attempt mediation in accordance with the AAA Commercial
Mediation Rules; provided, however, that the proposed mediation shall
not interfere with or in any way impede the progress of arbitration.
The parties also agree that (i) the AAA Optional Rules for Emergency
Measures of Protection shall apply to any proceedings initiated
hereunder; (ii) the arbitrator shall be authorized and empowered to
grant any remedy or relief, which the arbitrator deems just and
equitable in nature, including, but not limited to, specific
performance, injunction, declaratory judgment and other forms of
provisional relief in addition to a monetary award; (iii) the
arbitrator may make any other decisions including interim,
interlocutory or partial findings, orders and awards to the full
extent provided in Rule 45 of the Commercial Arbitration Rules; and
(iv) the arbitrator shall be empowered and authorized to award
attorneys’ fees to the prevailing party in accordance with
Rule45 (d). |
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(d) |
This
Agreement and the legal relations among the parties hereto shall be
governed by and construed in accordance with the laws of the State of
New York without regard to the conflicts of laws principals thereof
or the actual domiciles of the parties. Any arbitration or mediation
inherited by the parties as provided herein shall be filed and
maintained exclusively with the American Arbitration Association’s
offices located in New York City and the parties further agree that
the provisions of paragraph 9, above, may be enforced by any court of
competent jurisdiction, and the party seeking enforcement shall be
entitled to and award of all costs, fees and expenses, including
attorneys’ fees, to be paid by the party against whom enforcement
is ordered. |
Agreed and accepted on _____________
____, 2003 by and between:
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Insynq, Inc. |
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San ▇▇▇▇▇
▇▇▇▇▇▇ Hills Capital, Inc. |
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By:
_____________________________
▇▇▇▇ ▇▇▇▇▇,
Chairman/President/CEO |
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By: __________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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