BUSINESS ADVISORY AND CONSULTING SERVICES AGREEMENT
This Agreement made as of the 19th day of February, 2001, by and between
Tarshish Capital Markets, LTD. an Israel Corporation (hereinafter referred to
as "Tarshish") whose principal office is located at 00 Xxxxxxxxxx Xx. Xxxxx
Xxx, Xxxxxx 00000, and INSYNQ INC a publicly traded company (OTCBB: ISNQ)
(hereinafter referred to as "InsynQ"), whose principal offices are located at
0000 Xxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000 and whose Chief Executive Officer is
Xxxx Xxxxx.
W I T N E S S E T H :
WHEREAS, Tarshish is a private venture capital consulting firm that has
expertise in completing mergers and acquisitions, raising funds and rendering
strategic business advice including leveraged based buyouts.
WHEREAS, InsynQ wishes to retain Tarshish on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the aforesaid, it is hereby agreed by and
between the parties as follows:
ARTICLE I - SCOPE OF SERVICES
InsynQ has indicated to Tarshish that they are seeking financing in excess of
USD $ 3 to $ 5 million dollars the "Proposed Transaction." Tarshish shall use
its best efforts on behalf of InsynQ to raise such funds in a private offering
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act").
ARTICLE II - PERIOD OF PERFORMANCE
The term of this Agreement shall initially be for four months commencing on the
date of the payment of the initial retainer. At the conclusion of the fourth
month, this Agreement may be extended by the parties in writing.
ARTICLE III - INITIAL FEE BASED COMPENSATION
As initial cash compensation for the performance of the services described
above, InsynQ will pay Tarshish compensation an Initial Non-Refundable
Retainer: A non-refundable retainer fee of fifteen Thousand dollars ($15,000)
to be paid via bank wire to such account as Tarshish shall designate or as
mutually agreed upon the parties hereto.
ARTICLE IV - CONTINGENCY BASED COMPENSATION
For successfully closing a Proposed Transaction, through Tarshish's efforts,
with its direct or indirect1 sources, Tarshish shall receive a success fee
equal to 13% of the cash so invested into InsynQ or any of its subsidiaries or
projects. Tarshish will also be entitled to the success fee described above if,
within three years of the date of this letter (or the date of any extension
hereof), (i) a Proposed Transaction is completed, or (ii) InsynQ enters into a
definitive agreement which subsequently results in a Proposed Transaction, and
in either case such Transaction is (a) with a party or parties introduced by
Tarshish to the Company or (b) a transaction in respect to which Tarshish has
provided assistance in structuring, coordinating and/or negotiating the
specific transaction. In the event of a Reg S placement of Insynq stock the
price and the amount of stock sold, if any, shall be agreed upon each Monday
morning from Insynq and that price shall be net to Tarshish, additionally
Insynq will xxxxx Xxxxxxxx warrants equal to 10% of the funds raised at 110% of
the sales price.
In addition, for successfully closing a Proposed Transaction, through
Tarshish's efforts, InsynQ agrees to pay an equity success fee. Such equity
success fee will be paid in the form of warrants exercisable for five years
from the closing date of any Proposed Transaction, equal to 10% percent of the
equity in the Proposed Transaction. The exercise price for the warrants will
be 110% of the equity as valued by the Proposed Transaction.
Tarshish shall be responsible for compensation to any other party they bring to
assist in a transaction unless otherwise agreed in writing by InsynQ.
ARTICLE V - EXPENSES
EXPENSE REIMBURSEMENT: Tarshish shall be reimbursed for expenses as provided
herein. InsynQ shall prepay extraordinary Travel Expenses it approves. In the
event any item on the Expense Reimbursement xxxx causes InsynQ a problem, then
the parties shall promptly negotiate a resolution of the matter in good faith.
All expenditures will be submitted and pre-approved in writing in advance by an
officer of InsynQ. Expenses eligible for reimbursement hereunder include, but
are not limited to, production, road show costs, copying and travel and
entertainment expenses. Outside legal, accounting and other professional
service expenses that Tarshish incurs must be approved in advance in writing
and are subject to reimbursement as set forth in this Agreement. Outside
consultants, legal or accounting services retained by InsynQ shall be paid by
InsynQ. In the event InsynQ desires Tarshish to act as a placement agent for
the private placement, then in that event, InsynQ shall bear the costs of
outside legal counsel approving the private placement memorandum.
ARTICLE VI - COMPANY INFORMATION
a. Since Tarshish must at all times rely upon the accuracy and the
completeness of information supplied to it by officers, directors, agents and
employees of InsynQ, in any proceeding or suit which may arise out of the
relationship to Tarshish, InsynQ agrees to indemnify and hold Tarshish harmless
for any false or misleading information which was provided to Tarshish by
InsynQ.
b. No party to this agreement shall be liable for any damages for failure to
perform its obligations hereunder due to any cause beyond their control.
ARTICLE VII - CONFIDENTIALITY
Each party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans, software, technical
processes and formulas, source codes, product designs, sales, costs and other
unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Each party shall use Confidential Information only for the
purposes contemplated by this Agreement, and shall not disclose it to any third
party except with the prior written consent of the disclosing party.
Confidential Information shall not include information that the receiving party
can demonstrate (a) is, as of the time of its disclosure, in the public domain,
or thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party.
ARTICLE VII - INDEMNIFICATION
(a) INSYNQ agrees that it will indemnify and hold harmless Tarshish, its
directors, employees, agents and controlling persons (each being an
"Indemnified Party') from and against any and all losses, claims, damages,
liabilities and expenses, joint or several (including all reasonable fees of
counsel and other expenses incurred by any Indemnified Party in connection with
the preparation for, or defense of, any claim, action or proceeding, whether or
not resulting in any liability), to which such Indemnified Party may become
subject under any applicable federal or state law, or otherwise, caused by or
arising out of Tarshish's acting for InsynQ pursuant to this agreement, except
that InsynQ will not be liable hereunder to the extent that any loss, claim,
damage, liability or expense is found to have resulted primarily from
Tarshish's. negligence or bad faith.
(b) TARSHISH. Tarshish agrees to indemnify, defend, and shall hold harmless
InsynQ, its directors, employees and agents, and defend any action brought
against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the conduct of Tarshish or any unauthorized oral or
written representation made by Tarshish or its agents, employees or affiliates
in connection with the offer or sale of securities of InsynQ or any actions by
Tarshish or any such person in violation of a Act or any Blue Sky law.
(C) NOTICE. In claiming an indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of any claim,
which the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without
the indemnified party's written consent, which shall not be unreasonably
withheld.
ARTICLE IX - ASSIGNMENT
Tarshish shall not delegate or subcontract its obligations hereunder without
the prior written consent of InsynQ.
ARTICLE XI - ARBITRATION/JURISDICTION OF ARBITRATION PANEL
Any controversy or claim, including matters seeking an injunction, arising out
of or relating to this Agreement or the breach thereof which is not settled
between the signatories themselves, shall be settled by an independent
arbitrator, mutually acceptable to both parties or if agreement cannot be
reached through an arbitrator selected by the American Arbitration Association
("AAA"). Notwithstanding any rules of the AAA the matter may be heard upon
application of a party telephonically upon two days notice for an injunction
and ten days notice otherwise with both parties required to waive their
personal appearances and appear ear via telephone. It is the intention of this
provision not to cause a party and its it witnesses to be disadvantaged by
having to travel great distances to have its cause heard. This Agreement shall
in all respects be interpreted and construed under the laws of Washington.
Jurisdiction for any arbitration shall lie in Washington.
ARTICLE X - NOTICES
Any notice which is required or desired under this Agreement shall be given in
writing and may be sent by personal delivery, fax or by mail (either United
States mail, postage prepaid, or Federal Express or similar generally
recognized overnight carrier),' addressed as follows (subject to the right to
designate a different address by notice similarly given):
To InsynQ INC:
To: Tarshish
00 Xxxxxxxxxx Xx.
Xxxxx Xxx, Xxxxxx 00000,
972 3 612 7275
000 0 000 0000 (Fax
Email xxxxxxx@xxxxxxxxx.xxx.xx
ARTICLE XIII - MISCELLANEOUS
This Agreement establishes an "independent contractor" relationship between
Tarshish and InsynQ. Tarshish understands that InsynQ is a publicly traded
company and that it may occur that Tarshish will come into confidential
information. Tarshish shall ensure that its employees, agents or delegates will
maintain the confidentiality of InsynQ and not violate any xxxxxxx xxxxxxx
rules or any other rules of the SEC, NASD, or individual states in their
conduct under this agreement. Tarshish shall not release any press releases
alluding to InsynQ without the express written permission of InsynQ. Only an
instrument in writing executed by all the parties hereto may amend this
Agreement. This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement. This Agreement may
be executed in counterparts and a facsimile copy bearing the signature of a
party shall be the same for all purposes as an original. It supersedes all
prior or contemporaneous communications, representations and agreements,
whether oral or written, with respect to the subject matter hereof. No oral
agreements hereinafter made between the parties shall be binding on either
party unless reduced to writing and signed by an authorized officer of the
party so bound.
IN WITNESS THEREOF, the parties have executed this Agreement on the dates set
forth above their respective signatures.
Date: ________________________ Date: ________________________
I accept the terms of this Agreement. I accept the terms of this Agreement.
_______________________________ _______________________________
By: /s/ Xxxx X. Xxxxx By: /s/ Lavi Xxxxxxx
InsynQ INC Tarshish Capital Markets, LTD.
Corporation President & CEO President
===============================================================================
