CONSULTING AGREEMENT
AGREEMENT, made this 10th day of January 2005 by and between Insynq,
Inc. (hereinafter the "Company") having its principal place of business at 1127
Broadway Plaza, Suite 202, Tacoma, WA 98402, and Cliff Mastricola (hereinafter
the "Consultant"), having his principal place of business at 2190 Carmel Valley
Road, Del Mar, California 92014. 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, with services commencing on January 1, 2005,
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) Evaluate the Company's managerial, marketing and sales
requirements
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 of 15,000,000 shares of
free trading, unrestricted shares of Common Stock of the
Company. 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 Lehman 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:
Cliff Mastricola
2190 Carmel Valley Road
Del Mar, CA 92014
If to Company:
Insynq, Inc.
1127 Broadway Plaza, Suite 202
Tacoma, WA 98402
Attn: John P. Gorst
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 January, 10, 2005 by and between:
INSYNQ, INC. CONSULTANT
/s/ John P. gorst /s/ Cliff Mastricola
BY: _________________________________ BY: __________________________
John P. Gorst, Chairman/ CEO Cliff Mastricola