Exhibit 10.50
CONTRACT OF ENGAGEMENT
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THIS IS AN ENGAGEMENT AGREEMENT (this "Agreement") by and between CARDINAL
SECURITIES, L.L.C. ("CS"), a Georgia Limited Liability Corporation, and INSYNQ,
INC., a company organized under the laws of the state of Delaware, and its
subsidiaries and affiliates (the "Company"), and by which CS and the Company, in
consideration of the mutual agreements set forth below (the mutuality, adequacy,
and sufficiency of which are hereby acknowledged), hereby agree as follows:
1. Retention of CS as Advisor. The Company hereby engages CS, on a
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non-exclusive basis, and CS hereby agrees to provide general financial advisory
services to the Company for the purpose of the financing referred to in
Attachment A to this Agreement (the "Financing Transaction"). Neither CS nor
the Company shall make any commitment, representation, or warranty of any kind
whatsoever on behalf of the other, nor shall either party have any right or
authority to sign for, bind, or commit the other to any obligation or
undertaking in connection with any transaction contemplated herein, or
otherwise, without the written consent of the other.
2. Non-Contravention.
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(a) The Company agrees not to engage in, or enter into a contract to
engage in, any financing transaction with a party to whom it was first
introduced by CS ("CS Investor(s)"), for a period of Twenty Four (24)
Months from the date hereof. For clarity purposes, CS will provide a
written listing of such parties which shall become a part of this Agreement
upon the sooner of thirty (30) days of its execution or the Closing Date of
a financial transaction, hereof. The company shall identify those
organizations in writing from the list which they are currently working
with or already have a relationship to avoid any conflict it may have with
other agreements; and the parties shall agree on these exceptions and then
this agreement shall become part of this Agreement. In the event of
circumvention of this prohibition by the Company, the Company shall be
required to pay to CS the same compensation with respect to such other
financing transaction as is set forth in Section 3 of this Agreement. The
terms of this paragraph shall remain in effect regardless of whether this
contract is terminated under Section 7 below.
(b) The terms of this Contract of Engagement do not prohibit the
Company from raising or attempting to raise additional capital through its
normal and customary bankers and investment bankers to the extent that such
capital raise or attempted capital raise is with investors other than the
CS Investor(s).
(c) The Company agrees that CS or its representative shall
participate, when practicable, in any and all communications concerning the
Financing between the Company and the CS Investor(s), other than such
communications that are made to shareholders or investors generally.
3. Services and Compensation. During the term of this Agreement, CS
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will provide the services for the compensation set forth on Attachment A hereto
(the "Services").
4. Additional Provisions. None
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5. Acknowledgements of the Company. The Company Acknowledges and
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agrees that CS may be called upon by other parties or entities from time to time
to provide services similar to the Services provided to the Company to such
other parties or entities and in such event the Company hereby consents to CS
providing any such services to such other party or entity, to the extent such
services do not interfere or conflict with the services to be provided by CS
under this Agreement.
6. Trade-Secrets; Confidential Information. The parties agree that:
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(a) All of the trade secrets of each party (which include, but are
not limited to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, or a list of
actual or potential customers or services), whether currently existing or
otherwise developed during the term of this Agreement, that derives
economic value, actual or potential from not being readily ascertainable by
proper means by other persons who can obtain economic value from its
disclosure or use and is the subject of efforts which are reasonable under
the circumstances to maintain its secrecy and any other information or
materials that it a trade secret; and
(b) All of the confidential or proprietary information of each party,
which includes any data or information of either party other than trade
secrets, whether currently existing or otherwise developed or acquired by
either party during the term of this Agreement, which is not generally
known to the public;
(c) All of the information contained herein, the terms of the
transaction, and the structure of the transaction, except as required by
the rules and regulations of the Securities and Exchange Commission which
shall be disclosed including any fees in our SB-2; that either has been
provided, or will be provided, to the other or that has been obtained, or
will be obtained, by either party in connection with this Agreement (such
trade secrets and confidential, proprietary information being referred to
collectively as the "Information") is proprietary Information of the
disclosing party and is the sole, exclusive and valuable property of the
disclosing party (and the recipient party acknowledges and agrees that he
has, and will acquire no right, title or interest in such party). Thus,
the recipient party agrees:
(i) That it will not use the Information to the detriment of the
disclosing party; and
(ii) That it will hold the Information in strict confidence, use
the Information only in connection with the matters covered by this
Agreement, and not disclose the information to any person or entity
(other than an employee of the recipient party who requires such
Information in connection with this Agreement) unless the disclosing
party directs otherwise indefinitely in the case of trade secrets (so
long as they remain trade secrets) and until Sixty (60) months after
the termination of this Agreement in the case of confidential
information; provided, however, that the agreements in clause (ii)
shall not apply to the Information to the extent the recipient party
demonstrates that:
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(iii) It was in the public domain at the time of its
communication to the recipient party; or
(iv) It entered the public domain through no action of the
recipient party subsequent to the time of communication to the
recipient party; or
(v) It was rightfully received by the recipient party from a
third party without a similar restriction and without breach of this
Agreement or any other agreement with the disclosing party; or
(vi) It was independently developed by the recipient party
without breach of this Agreement; or
(vii) It was approved for release by written authorization of the
disclosing party.
Immediately after termination of this Agreement, the recipient party shall
deliver to the disclosing party all materials in its possession involving the
disclosing party's Information. Any trade secrets shall also be entitled to all
of the protections and benefits under the laws of the State of Georgia and any
other applicable law. If any information which the parties deem to be a trade
secret is found by a court of competent jurisdiction not to be a trade secret
for purposes of this Section 6, then the Information shall be considered
confidential information for purposes of this Section 6. This Section 6 shall
survive the termination of this Agreement.
7. Term. The term of this Agreement shall be for a period of One Hundred
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Eighty (180) days from the date of execution, unless sooner terminated in
accordance with this Agreement. The Company or CS may terminate this Agreement
at any time upon ten (10) days prior written notice to the other party, and this
Agreement shall automatically terminate upon the closing of a financial
transaction, provided, however, that sections 2, 3, 6, 8 and 9 shall survive
termination of this Agreement.
8. Limitation on Liability. Notwithstanding anything to the contrary in
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this Agreement, CS's liability to the Company for any loss or damage arising out
of CS's performance or nonperformance of the Services shall be limited to loss
or damage directly resulting from willful misconduct or gross negligence of CS
or its employees and agents. It is expressly agreed that in no event shall CS's
liability to the Company ever exceed the fees paid to CS by the Company for the
Services set forth on Attachments A hereto. NEITHER CS NOR ITS OFFICERS,
DIRECTORS, SHAREHOLDERS OF AGENTS SHALL BE LIABLE FOR INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUES SUFFERED BY THE COMPANY OR
FOR ANY CLAIM, DEMAND OR ACTION AGAINST THE COMPANY OR ANY OF ITS
REPRESENTATIVES BY ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
9. Indemnification. The Company shall be solely responsible for, and
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hold harmless and indemnify CS (including its successors, officers, directors,
shareholders, employees, agents and representatives) from the Company's actions
unless the damage was incurred due to their misconduct, and against, all losses,
claims, damages, liabilities and expenses (including any and all reasonable
expenses and attorneys fees incurred in investigating,
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preparing or defending against any litigation or proceeding, commenced or
threatened, or any claim whatsoever whether or not resulting in any liability)
in connection with CS's provision of the Services to the Company, unless such
loss, claim, damage, liability or expense results from the willful misconduct or
gross negligence of CS or its employees or agents. Further, the liability should
not exceed the amount of fees we have paid to them in the particular
transaction, except or any loss, claim, damage, liability or expense arising
from, or relating to the Company filing a Registration Statement for the
proposed transaction, or breach by the Company of the Terms of the transaction
between the Company and the Investor(s), which in each of such cases shall not
be subject to limitation on liability. Notwithstanding the foregoing, the
Company shall have no obligation to reimburse CS for cash and expenses
(including due diligence and legal fees and disbursements incurred by CS in
connection with the Financing to the extent that such costs and expenses exceed
Ten Thousand Dollars (USD$10,000.00).
10. Miscellaneous.
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(a) Notices. Each notice under this Agreement shall be in writing and
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given either in person or by facsimile, overnight delivery service or first
class mail, postage and any other costs prepaid, to the address of the
party being given notice set forth below his or its signature or to such
other address as a party may furnish to the other as provided in this
sentence; and if such notice is given pursuant to the foregoing of a
permitted successor or assign, then notice shall thereafter be given
pursuant to the foregoing also to such permitted successor or assign.
(b) Assignment; Successors in Interest. No assignment, transfer or
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delegation of any rights or obligations under this Agreement by a party
shall be made without the prior written consent of the other party. This
Agreement is binding upon the parties and their respective successors and
assigns, and inures to the benefit of the parties and their respective
permitted successors and assigns. References to a party are also
references to any successor or assign of such party.
(c) Number; Gender; Captions; Certain Definitions. Whenever the
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context requires, the singular includes the plural, the plural includes the
singular, and the gender of any pronoun includes the other genders. Titles
and captions of or in this Agreement are inserted only as a matter of
convenience and for reference and in no way affect the scope of this
Agreement or the intent of its provisions. The parties agree: (i) that
"this Agreement" includes any amendments or other modifications and
supplements, and all exhibits, schedules and any other attachments, to it;
(ii) that "parties to this Agreement" and variations of that phrase
includes all persons who have executed and delivered this Agreement and, in
the event of a successor or assign to a person who has executed and
delivered this Agreement, such successor or assign; and (iii) that
"including" and other words or phrases of inclusion, if any, shall not be
construed as terms of limitation, so that references to "included" matters
shall be regarded as non-exclusive, non-characterizing illustrations.
(d) Severability. Any determination by any court of competent
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jurisdiction that any provision of this Agreement is invalid shall not
affect the validity of any other
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provision of this Agreement, which shall remain in full force and effect
and which shall be construed as to be valid under applicable law.
(e) Integration; Amendment; Waiver. This Agreement (i) constitutes
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the entire agreement of the parties with respect to its subject matter,
(ii) supersedes all prior agreements, if any, of the parties with respect
to its subject matter, and (iii) may not be amended except in writing
signed by the party against whom the change is being asserted. The failure
of any party at any time or times to require the performance of any
provision of this Agreement shall in no manner affect the right to enforce
the same; and no waiver by any party of any provision (or of a breach of
any provision) of this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed or construed either as a further or
continuing waiver of any such provision or breach or as a waiver of any
other provision (or of a breach of any other provision) of this Agreement.
(f) Attachments. All schedules, attachments and exhibits to this
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Agreement are hereby incorporated into this Agreement and are hereby made a
part of this Agreement as if set out in full in the first place that
reference is made thereto.
(g) Controlling Law. This Agreement is governed by, and shall be
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construed and enforced in accordance with the laws of the State of Georgia,
and venue for any disputes arising from or related to this Agreement shall
lie in the courts of Xxxxxx County, Georgia.
(h) Counterparts. This Agreement may be executed in two or more
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counterparts, and all such counterparts taken together shall be deemed to
constitute one and the same agreement.
CARDINAL SECURITIES, L.L.C.
/s/ Xxxxxx X. Xxxxxxxxxx
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By: Xxxxxx X. Xxxxxxxxxx
Its: Managing Director
INSYNQ, INC.
/s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
Its: Chairman, CEO & Director
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Attachment A
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The Services to be provided by Cardinal Securities, L.L.C. (CS) and the
compensation to be received by CS from Insynq, Inc. (the "Company") shall
include the following:
1. Introducing Insynq, Inc. to institutional investors for a Private Placement
of up to Ten Million Dollars (USD$10,000,000.00) on a Best Efforts Basis.
CS to be compensated, in cash, in the amount of seven percent (7%) of the
Face Amount of the CS Private Placement payable out of proceeds at Closing.
The Company shall also grant to CS, Fifty Thousand (50,000) stock purchase
warrants (the "Warrants") for each one Million Dollars (USD$1,000,000.00)
raised. Such Warrants shall be registered on the CS's Investor's
Registration Statement, and shall be exercisable any time until the fifth
(5/th/) anniversary of the Closing Date hereof at one hundred twenty
percent (120%) of the Closing Price on such Closing Date, and shall provide
for cashless exercise provisions. In addition, the Company will pay
accountable due diligence, legal fees, and expenses related to the
completion of this transaction to CS in an amount not in excess of Ten
Thousand Dollars (USD$10,000.00).
2. The Bank of New York shall act as the Escrow Agent for the Closing, and all
fees shall be paid to CS directly from the Escrow Account.
AGREED TO AND ACCEPTED THIS 27/th/ DAY OF SEPTEMBER, 2000.
CARDINAL SECURITIES, L.L.C. INSYNQ, INC.
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxx Xxxxx
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By: Xxxxxx X. Xxxxxxxxxx By: Xxxx Xxxxx
Its: Managing Director Its: President, CEO & Director
Attachment A-Page 1
