INDEPENDENT CONSULTANT AGREEMENT PRIVATE
THIS AGREEMENT is made and entered into at Tacoma, Washington this
2nd day of January, 2001, by and between Insynq Inc., a Delaware corporation
(hereinafter referred to as "Insynq"), and Xxxxxxx xxXxxx, an individual
(hereinafter referred to as "Consultant").
This Agreement is made with reference to the following facts and
objectives:
RECITALS
WHEREAS, Insynq core business includes ASP Solutions and proprietary
technology; and
WHEREAS, Consultant is known by INSYNQ to possess the knowledge of
the relevant industries, have substantial contacts within those industries, and
to possess the creative wherewithal to create new revenue streams for or add
value to INSYNQ by identifying new or additional strategic partners, and
through keeping INSYNQ at the forefront of new markets created by emerging
technologies, and by presenting new business opportunities through joint
ventures with outside companies or parties; and
WHEREAS, Consultant desires to invest a substantial portion of his
time and energies to help INSYNQ meet these goals and INSYNQ desires to engage
Consultant's services; and
WHEREAS, INSYNQ and Consultant desire to enter into this agreement
whereby Consultant will furnish services to INSYNQ, and INSYNQ will compensate
Consultant, on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and the covenants
and premises hereinafter set forth to be performed hereunder, and intending to
be legally bound, the parties agree as follows:
AGREEMENT
1. ENGAGEMENT OF CONSULTANT. In addition to the general consulting
services set forth in paragraph 2 herein, INSYNQ hereby retains the services of
Consultant, and Consultant hereby accepts its engagement, to act as consultant
on such projects as INSYNQ and Consultant shall mutually determine on the terms
and conditions set forth in this agreement.
2. GENERAL CONSULTING SERVICES; MEMBER OF BOARD OF DIRECTORS ADVISORY
COMMITTEE. Consultant shall perform the following services at the request of
INSYNQ's management:
a. Strategic planning;
b. Identify and pursue strategic alliances;
c. Evaluate and develop cooperative venture proposals and
participate in negotiations at the request of management;
d Evaluate merger and acquisition proposals and participate in
negotiations at the request of management;
e. Travel to perform the aforesaid services as requested by
management.
3. NON-EXCLUSIVE SERVICES. Consultant will devote a significant part of
his productive time and energy to the business of INSYNQ as reasonably
necessary to perform the services described in this agreement. During the term
of this agreement, Consultant may provide consulting services to other clients
in businesses that may indirectly compete with INSYNQ. The parties recognize
that the demands on Consultant's time to adequately perform the services
hereunder will vary from time to time according to each project. Consultant
will both use its best efforts to communicate with INSYNQ's management
regarding any demands on Consultant's time or availability to the extent that
the same can reasonably be anticipated. Consultant shall be required to devote
at least one-third but no more than one-half of Consultant's productive time
and energy to the business of INSYNQ.
4. TERM. The term of this agreement is for ONE (1) year commencing
January 2, 2001 and ending January 2, 2002. This agreement shall automatically
renew for additional successive terms of SIX (6) months unless either party
notifies the other party in writing not less than thirty (30) days prior to the
end of the term, including any extensions thereof, of said party's intent not
to renew.
5. COMPENSATION OF CONSULTANT.
A. CONSULTANT'S EXPENSES. All expenses incurred by Consultant in
representing INSYNQ including, but not limited to, travel expense,
entertainment, shall be paid by INSYNQ, provided Consultant receives prior
written authorization from INSYNQ specifying the covered expense items for
amounts over $500 for any given month. As to said reimbursable expense items,
INSYNQ shall reimburse Consultant during the Calendar month immediately
following the month in which such expense item is incurred upon presentation of
receipts or other appropriate documentation.
B. CONSULTING FEE. On the Effective Date, INSYNQ shall pay to
Consultant a consulting fee in the form of Stock Option grant of 200,000 shares
in the form of a Non-qualified Stock Option with an exercise price at close of
market January 2, 2001. The Stock Option shall be vested as to the first
20,000 shares on the Effective Date. As to the remaining 180,000 shares, and
provided Consultant continues to be engaged under this Agreement on each of the
vesting dates, the remainder of the Stock Option shall vest in the following
manner: 90,000 shares at the end of the first term of this Agreement and
90,000 at the end of the successive term of this Agreement. The shares shall
be awarded as part of the Employees Stock Plan and filed as part of the S-8
registration.
C. REGISTRATION OF OPTIONS AND SHARES. As soon as practicable, but
within 60 days of each grant of INSYNQ equities hereunder to Consultant, the
Company shall file a registration statement on Form S-8 with the Securities and
Exchange Commission registering the common stock awarded or underlying the
options awarded; provided, however, that if the Company shall furnish to such
Investors a certificate signed by the President of the Company stating that in
the good-faith judgment of the Board of Directors it would be seriously
detrimental to the Company and its share Investors for such registration
statement to be filed within such 60-day period and it is therefore essential
to defer the filing of such registration statement, the Company shall have an
additional period of not more than sixty (60) days after the expiration of the
initial 60-day period within which to file such registration statement;
provided, that during such time the Company may not file a registration
statement for securities to be issued and sold for its own account.
5. STATUS OF CONSULTANT AS INDEPENDENT CONTRACTOR. Consultant shall
perform his services hereunder as an independent contractor. Consultant shall
not be deemed an employee of INSYNQ for any purpose. INSYNQ is interested only
in the results obtained by Consultant and, with the exception of general policy
statements and regulations adopted by INSYNQ from time to time respecting the
conduct of business hereunder, implemented for the purpose of insuring
satisfactory performance of this Agreement and the preservation of INSYNQ's
goodwill, INSYNQ shall have no control over the manner or means by which
Consultant performs its services under this Agreement. Consultant shall have
the obligation to supervise and control the persons hired or engaged by it and
Consultant shall be solely responsible for the acts of its agents and/or
employees. Consultant warrants and represents that all persons hired or
engaged by Consultant shall be subject to each and all of the terms, provisions
and conditions of this Agreement applying to Consultant. Consultant shall
have, as between the parties, the exclusive right to select, engage, and fix
the compensation of or discharge its agents and/or employees and shall, with
respect to all such persons, perform all obligations and discharge all
liabilities imposed upon employers under labor, wage-hours, workers
compensation, unemployment compensation or insurance, social security and other
federal, state, and municipal laws and regulations. Consultant shall not list
the offices of INSYNQ as Consultant's place of business.
6. LIMITATION OF AUTHORITY. Consultant's authority is strictly limited
to the terms of this engagement as set forth in this agreement. Except as
expressly provided herein, Consultant shall have no right or power to enter
into a contract or commitment on behalf of INSYNQ or to bind or obligate or to
incur obligations or liabilities on behalf of INSYNQ in any manner unless such
authority is expressly granted in a writing duly executed by and on behalf of
INSYNQ. Without limiting the generality of the foregoing, neither party shall
have any authority to employ or engage the services of any person on behalf of
the other.
7. COMPLIANCE WITH LAWS. In performing its duties hereunder, Consultant
and INSYNQ shall each shall comply with all applicable laws, ordinances, codes,
regulations or orders as may be in effect in each jurisdiction in which
services are performed, whether municipal, county, state or federal.
8. CONFIDENTIALITY. During the performance of services under this
agreement, Consultant will receive information regarding INSYNQ's business,
including, but not limited to, information about INSYNQ's products, processes,
know-how, designs, customers, customer lists, business plans, marketing plans
and strategies, strategic partners, price lists and pricing strategies, and
other subject matter pertaining to the business of INSYNQ and its clients,
licensees and affiliates. Consultant acknowledges that such information
constitutes valuable trade secrets belonging to INSYNQ and Consultant agrees to
keep all such information confidential, except as INSYNQ may otherwise consent
in writing, and not to disclose, or make any use of such confidential
information (other than for the benefit of INSYNQ) at any time either during or
subsequent to Consultant's engagement under this agreement. Upon termination
of this agreement, Consultant shall account for and surrender to INSYNQ all
records, samples, displays, books, price lists, customer lists and all computer
files, recording tapes, transcriptions, notebooks, or other media containing
any information which is confidential and proprietary to INSYNQ, and all other
property or things of value belonging to INSYNQ in Consultant's possession or
under Consultant's control. The confidentiality provisions herein do not apply
to information which Consultant can show by prior written documents (i) was in
the public domain or publicly known or available prior to the date of
disclosure, (ii) becomes generally available to the public other than as a
result of a disclosure by Consultant, or its employees, agents, advisors,
representative, and affiliates, or (iii) becomes available to Consultant on a
non-confidential basis from a source other than any party named in this
Agreement, or their respective advisors, provided that such sources are not
known by Consultant to be bound by a confidentiality agreement with or
obligation of secrecy to any party with respect to such information.
10. WORK PRODUCT PROPRIETARY TO INSYNQ. All ideas, concepts, themes,
designs, works of art, compositions, inventions, processes, improvements or
other creations of Consultant, its agents or employees, conceived, produced, or
developed for INSYNQ pursuant to this agreement, either individually or jointly
in collaboration with others, shall belong to and be the sole and exclusive
property of INSYNQ. Consultant shall cooperate with any efforts by INSYNQ to
obtain copyrights, trademarks, patents, or any other form of protection of
intellectual property, including, upon INSYNQ's request, assisting in
completing and executing applications for registration of the work with the
appropriate office or agency.
11. ARBITRATION. The Consultant and the Company shall submit to
mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof. Such arbitration shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association in effect at that time, and judgment upon the
determination or award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator is hereby authorized to award to
the prevailing party the costs (including reasonable attorneys' fees and
expenses) of any such arbitration.
12. MISCELLANEOUS.
A. NO ASSIGNMENT. The services of Consultant under this agreement
are unique and of unusual value to INSYNQ based on the personal skills and
expertise possessed by Consultant and its key employees. Consultant shall not
assign this agreement or its rights hereunder without the written consent of
INSYNQ. INSYNQ shall not assign this agreement or its rights hereunder without
the written consent of Consultant.
B. GOVERNING LAW. The laws of the State of Washington applicable
to contracts made and to be performed in the State of Washington shall govern
in any dispute arising out of or under this appointment or any sales made by
INSYNQ.
C. HOLD HARMLESS. Each party shall indemnify and hold the other
harmless from and against any and all liability, loss, costs, expenses,
including without limitation reasonable attorneys' fees and costs of suit, or
damages however caused by reason of any injury (whether to body, property, or
personal of business character or reputation) sustained by any person or to any
person or to property by reason of any act, neglect, default, or omission of
said party or any of its employees, agents or representatives. Nothing herein
is intended to nor shall it relieve either party from liability for its own
act(s), omission, or negligence.
D. NOTICES. Any notices to be given pursuant to this agreement by
either party shall be in writing and shall be deemed given as follows:
(a) when personally delivered to the intended recipient;
(b) when sent by certified or registered mail, upon the date on
which a return receipt was signed by the intended recipient;
(c) twenty-four (24) hours after deposit for next day delivery,
properly addressed, postage and/or fees prepaid or charged to the sender's
account, with the United States Postal Service Express Mail, Federal Express,
United Parcel Service, DHL WorldWide Express, Airborne Express, or other
equivalent carrier (unless said twenty-four hour period expires on a Sunday or
legal holiday, in which case Notice shall be deemed given forty-eight (48)
hours after deposit with a carrier named above);
(d) when transmitted by electronic means, and such transmission
is electronically confirmed by the intended recipient as having been received;
or
(e) when transmitted or delivered by any of the means described
in Section 12.D(a) through (d), and the party accepting or signing for said
delivery or confirming receipt thereof at the home or office of the intended
recipient is a party whom the sender has reason to believe will promptly
communicate the notice to the recipient.
For purposes of mail or overnight delivery, a properly addressed notice
shall be addressed as follows:
To INSYNQ:
Xxxx X. Xxxxx, Chief Executive Officer
INSYNQ Management, Inc.
To Consultant:
E. WAIVER OF BREACH. The waiver by INSYNQ or Consultant of the
breach of any provision of this agreement by the other party, or the failure to
exercise any right granted under this agreement shall not operate or be
construed as the waiver of any subsequent breach by the other party or the
waiver of the right to exercise any such right in the future.
F. ENTIRE AGREEMENT. This agreement, together with any promotion
orders executed by the parties pursuant to this agreement, sets forth the
entire understanding and agreement between the parties with respect to the
services to be performed for INSYNQ by Consultant. No modification or
amendment to any of the provisions of this agreement shall have any force or
effect unless in writing and signed by both parties.
G. BINDING EFFECT. Subject to the restriction upon assignment by
Consultant contained in paragraph 12.A hereof, this Agreement shall be binding
upon and inure to the benefit of the heirs, executors, personal
representatives, successors and assigns of the parties hereto.
H. TITLES. The headings or titles to the paragraphs of this
appointment are intended for convenience only and shall have no effect upon the
construction or interpretation of any part of this Agreement.
I. ATTORNEYS' FEES. In the event that any arbitration shall be
commenced by either party arising out of the interpretation or enforcement of
this agreement, the prevailing party shall be entitled to recover from the
other party its reasonable attorneys' fees and costs of suit incurred therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers on the day first above written.
INSYNQ MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Chief Executive Officer
CONSULTANT
By: /s/ Xxxxxxx xxXxxx
Xxxxxxx xxXxxx
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