EXHIBIT 10.40
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of this
____ day of September, 2000 between Insynq. Inc. (the "Company"), and Xxxxx
Xxxxxx ("Xx. Xxxxxx").
WHEREAS, since February 2000, Xx. Xxxxxx has served as a member of the
Board of Directors (the "Board") of the Company; and
WHEREAS, the Company has determined that it is in the best interest of
the Company to compensate Xx. Xxxxxx for serving as a member of the Board, and
Xx. Xxxxxx is willing to continue to serve in such capacity.
NOW THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. TERM. The term of this Agreement shall commence on February 1,
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2000 (the "Effective Date") and shall expire on the date Xx. Xxxxxx ceases to be
a member of the Board in accordance with the Bylaws of the Company (the "Term").
2. CONSULTING SERVICES. Subject to and in accordance with the
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provisions of this Agreement, during the Term, Xx. Xxxxxx agrees to attend Board
meetings and provide the Company with his knowledge and insight relating to the
Company's business (the "Consulting Services").
3. CONSULTING FEES. During the Term, the Company shall pay to Mr.
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Xxxxxx $250.00 for each Board meeting he attends. In addition, for the fiscal
quarter commencing on June 1, 2000, and for each fiscal quarter of the Company
thereafter while Xx. Xxxxxx serves on the Board, Xx. Xxxxxx shall be entitled to
receive 3,500 shares of the Company's common stock for each full fiscal quarter
he serves as a member of the Board. Earned shares in any fiscal quarter will be
issued by the 15th day of the month following the end of such quarter. The
number of shares Xx. Xxxxxx is entitled to receive hereunder shall not be
adjusted for the two-for-one forward stock split that occurred on August 3, 2000
as a result of the Company's merger with Xcel Management, Inc. If the Company
changes its fiscal year to a calendar year and Xx. Xxxxxx is a Board member at
such time, he shall be entitled to receive the pro rata portion of the shares
earned at the time of such change and shall thereafter commence earning new
shares during the first fiscal calendar quarter of the Company. If Xx. Xxxxxx
ceases to be a director prior to the end of any fiscal quarter, no shares for
that quarter shall be earned or issued. As an independent contractor, Xx. Xxxxxx
is not, nor will Xx. Xxxxxx become, eligible for any employee benefits,
including without limitation, health insurance, worker's compensation,
unemployment insurance, or pension or other similar benefits, provided by the
Company (or its affiliates) to its employees. Xx. Xxxxxx will have full
responsibility for the payment of all federal, state and local taxes or
contributions imposed or required under unemployment insurance, social security,
FICA, and income tax laws with respect to Xx. Xxxxxx'x performance of services
with respect to the compensation received hereunder.
4. RESTRICTED SHARES. Xx. Xxxxxx acknowledges that the shares of
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common stock he receives hereunder shall be restricted shares, that he is
receiving such shares for his own account without a view to distribution
thereof, that he may need to hold such shares for an indefinite period of time,
and that the certificates representing the shares will contain legends
restricting the sale of his shares. Xx. Xxxxxx also acknowledges that he must
hold the shares for at least one (1) year prior to having the ability to sell
the shares under the requirements of Rule 144 of the Securities Act of 1933, as
amended. Xx. Xxxxxx further acknowledges that he may not sell any shares prior
to such time without the shares being registered with the SEC or pursuant to an
exemption from such registration.
5. CONFIDENTIALITY. Xx. Xxxxxx acknowledges that he has and will
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receive information (the "Confidential Information") concerning the business of
the Company that he would not otherwise receive, but for his service as a member
of the Board of the Company. Xx. Xxxxxx further acknowledges that this
Confidential Information, which is not publicly known and which gives the
Company a competitive advantage, if shared with third parties, could be
detrimental to the Company and could place the Company at a competitive
disadvantage. Xx. Xxxxxx therefore agrees that Xx. Xxxxxx will not, during the
Term and for a period of three (3) years after termination or cessation of this
Agreement, directly or indirectly disclose, copy, communicate to, or use for the
benefit of any other person or entity (other than the Company), any of the
Confidential Information acquired by Xx. Xxxxxx prior to or during the term of
this Agreement. Xx. Xxxxxx acknowledges that he will obtain no right, title or
interest in the Confidential Information, or any related information or data,
and that the Confidential Information and related information is and shall
remain the sole property of Company.
6. RETURN OF COMPANY PROPERTY. Upon termination or cessation of
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this Agreement, Xx. Xxxxxx shall surrender to the Company any and all
Confidential Information, Company-related documents, assets, property, equipment
and the like in his possession or control. Xx. Xxxxxx shall supply to the
Company, upon request, a written statement that all such Confidential
Information, including all copies, and other items have been returned.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
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and shall inure to the benefit of the parties and their respective successors
and permitted assigns. Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by Xx. Xxxxxx, his beneficiaries
or legal representatives. The Company may assign any one or more of its rights
under this Agreement to a successor to the business of the Company.
8. FEES AND EXPENSES. Each party shall bear their own legal fees
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and expenses related to the negotiation and documentation of this Agreement. In
any proceeding brought to declare, define or determine the rights or obligations
of any party this Agreement, the prevailing party shall be entitled to receive
an award of its attorney's fees and expenses in connection therewith, such fees
to be awarded by the Court or arbitrator, and not by the jury.
9. NOTICES. All notices and other communications hereunder shall
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be in writing and shall be deemed given if delivered personally or by overnight
courier or telecopier with proof of delivery or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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if to the Company, to
Insynq, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Telecopier: (000) 000-0000; and
if to Xx. Xxxxxx, to
Xxxxx Xxxxxx
00000 Xxxxxxxx Xxxx. #000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
10. MISCELLANEOUS. No provision of this Agreement may be modified,
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waived or discharges unless such waiver, modification or discharge is agreed to
in writing and signed by Xx. Xxxxxx and the Company. No waiver by a party hereto
of any breach by the other party hereto of any condition or provision of this
Agreement shall be deemed a waiver of such, similar or dissimilar provisions or
conditions at the same or any subsequent or prior time. No agreement or
representations, oral or otherwise, with respect to the subject matter hereof
have been made by either party that are not expressly set forth in this
Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Washington
without giving effect to the conflict of law principles thereof. Subject to
Section 17 of this Agreement, any action brought by any party to this Agreement
shall be brought and maintained in a court of competent jurisdiction in Xxxxxx
County of the State of Washington.
12. SEVERABILITY. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
effect the validity or enforceability of any other provision hereof.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
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agreement between the parties hereto with respect to the matters addressed
thereby and supersedes all prior agreements, if any, understandings, and
arrangements, oral or written, between the parties hereto with respect to the
subject matter hereof.
14. HEADINGS, CAPTIONS, ETC. Headings and captions herein are for
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convenience of reference only and shall not be used to determine or define the
rights of the parties. All references to "including" are deemed to be references
to "including without limitation," whether or not so expressly stated.
15. ARBITRATION. Except as provided below, any dispute or
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controversy arising out of or relating to this Agreement shall be determined and
settled by arbitration in the City of Tacoma, Washington, in accordance with the
Employment Dispute Resolution Rules of the
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American Arbitration Association then in effect, and judgment upon the award
rendered by the arbitrator may be entered in any court of competent
jurisdiction. Such arbitrator shall have no power to modify any of the
provisions of this Agreement, and his or her jurisdiction is limited
accordingly. A party requesting arbitration hereunder shall give ten (10) days'
written notice to the other party prior to requesting such arbitration. Unless
the arbitrator decides otherwise, the successful party in any such arbitration
shall be entitled to reasonable attorneys' fees and costs associated with such
arbitration. If the parties hereto cannot agree upon an arbitrator, then one
shall be appointed by the governing official of the Washington Chapter of the
American Arbitration Association. Any arbitrator so appointed shall have
extensive experience in a profession connected with the subject matter of the
dispute. Whenever any action is required to be taken under this Agreement within
a specified period of time and the taking of such action is materially affected
by a matter submitted to arbitration, such period shall automatically be
extended by the number of days plus ten (10) that are taken for the
determination of that matter by the arbitrator. Notwithstanding the foregoing,
this Section 17 shall not limit the Company's right to seek and obtain a
restraining order, injunction or other equitable relief.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Xx. Xxxxxx has executed this
Agreement as of the day and year first above written.
INSYNQ, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Xxxx Xxxxx, President and Chief Executive Officer
XX. XXXXXX:
/S/ XXXXX X. XXXXXX
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Xxxxx Xxxxxx
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