Exhibit 10.109
SAN XXXXX XXXXXX HILLS CAPITAL
CONSULTING AGREEMENT
AGREEMENT, made this 15th day of July, 2003 by and between Insynq, Inc.
(hereinafter the "Company") having its principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxx 00, Xxxxxx, XX 00000, and San Xxxxx Xxxxxx Hills Capital,
Inc., (hereinafter the "Consultant"), having its principal place of business at
0000 Xxxxxx Xxxxxx Xxxx, Xxx Xxx, Xxxxxxxxxx 00000. 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:
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.
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):
(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.
(b) Render advice with respect to leasing and/or other financing
arrangements.
(c) Assist in negotiation of contracts with suppliers and major customers
when so required by the Company.
(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.
(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.
(f) Evaluate the Company's managerial, marketing and sales requirements
(g) Evaluate and advise the Company on its investor communications and
investor relations strategy.
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.
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:
(a) For business development, strategic planning and other consulting work
to be accomplished not related to any public financing, the Company
will pay a fee at the signing of this agreement, and at each monthly
anniversary date of $20,000 in free trading, unrestricted shares of
Common Stock of the Company, calculated at the five-day average
trailing closing bid price for the five trading days immediately
preceding and due on the day documents are signed for the first month,
and calculated at the five-day average trailing closing bid price for
the five trading days immediately preceding, and due on the five (5)
subsequent monthly anniversary dates of this agreement. 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.
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 $1,000.00 for expenses without the
prior written approval of the Company.
6. 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 Xxxxxx
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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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:
If to Consultant:
San Xxxxx Xxxxxx Hills Capital, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxx Xxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
If to Company:
Insynq, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 00
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
13. 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.
14. MISCELLANEOUS:
(a) Except as provided in Section 7, 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.
(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.
(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).
(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 California 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 San Diego, CA and the parties further agree that
the provisions of paragraph 8, 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:
INSYNQ, INC. SAN XXXXX XXXXXX HILLS CAPITAL, INC.
BY: _________________________________ BY: __________________________
Xxxx X. Xxxxx, Chairman/ CEO Xxxxx Xxxxxxxxxx
