EXHIBIT 10.5
FINANCIAL PUBLIC RELATIONS
CONSULTING AGREEMENT
THIS FINANCIAL PUBLIC RELATIONS CONSULTING AGREEMENT made as of this 20th day of
September, 1999 by and between One Click Investments LLC, a Washington State
LLC., (hereinafter referred to as "Consultant") and INSYNQ, INC., a Washington
State corporation, (hereinafter referred to as the "Company") is as follows:
WHEREAS, the company is in need of certain financial relations services, and
Consultant is agreeable to such employment, and the parties desire a written
document formalizing their relationship and evidencing the terms of their
agreement.
NOW, THEREFORE, WITH BOTH PARTIES INTENDING TO BE LEGALLY BOUND AND IN
CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS, THE PARTIES HAVE AGREED AS
FOLLOWS:
1. APPOINTMENT: The Company hereby appoints Consultant as its Financial Public
Relations Counsel and hereby retains and employs Consultant on the terms
and conditions of the Agreement.
2. SERVICES:
(A) Consultant shall act, generally, as a financial public relations
counsel essentially, acting;
(1) Assisting the Company with various business opportunities.
(2) Advising the Company of various legalities and locating certain
legal professionals
(3) Assisting the Company with the strategy and process of either
merging into an existing public shell, creating a new public shell,
or completing a traditional Initial Public Offering
(4) Acting as a liaison for the Company concerning the initial public
relations, and assisting Company with Company assigned personnel in
relation to investor relations, media relations, broker relations,
existing and potential market makers, broker dealers, and any
potential or existing shareholders
(5) Assist Company in the Construction of an investor kit for investor
distribution.
(B) As the Company shall request or direct, Consultant shall assist in
establishing and advise the Company in respect to: shareholder
meetings, interviews of Company officers by analysts, market makers,
broker-dealers and other members of the financial community.
(C) Consultant shall assist with making the Company, its management, its
products and its financial situation and prospects known to the
Company's shareholders.
3. LIMITATIONS ON SERVICES: The parties recognize that certain
responsibilities and obligations are imposed by both U.S. and foreign
securities laws as well as by the applicable rules and regulations of the
NASD, in-house "due diligence" or "compliance departments of brokerage
houses, etc.
Accordingly, Consultant agrees:
(A) Consultant shall not release any financial or other information or data
about the Company without the consent of the Company.
(B) Consultant shall not conduct any meetings with shareholders without
informing the Company in advance of the proposed meeting and the format
or agenda of such meeting giving the Company the option to have a
representative present at such meeting.
(C) Consultant shall not release any information or data about the Company
to any selected or limited person(s), entity, or group.
(D) Consultant shall not take any action or advise or knowingly permit the
Company to take action, which would violate any securities, laws or
rules and regulations issued thereunder.
4. DUTIES OF COMPANY:
(A) Company shall supply Consultant, on a regular and timely basis, with
all approved data and information about the company, its management,
its products and its operations and the Company shall be responsible
for advising Consultant of any facts which would affect the accuracy of
any prior data and information previously supplied to consultant
allowing Consultant to make corrective action.
(B) Company shall promptly notify Consultant of any event, which triggers
any restrictions on publicity, or any other area related to Consultants
efforts.
(C) Company shall notify Consultant if any information or data being
supplied to Consultant has not been generally released or promulgated.
(D) Provide Consultant with any other information, data, or general support
that Consultant may request.
5. REPRESENTATION AND INDEMNIFICATION:
(A) The Company shall be deemed to make a continuing representation of the
accuracy of any and all Material facts, material information, and
material data which it supplies to Consultant and the Company
acknowledges its awareness that Consultant will rely on such continuing
representation in disseminating such information and otherwise
performing their functions.
(B) Consultant, in the absence of notice in writing from the Company, will
rely on the continuing accuracy of material, information, and data
supplied by the Company.
(C) Company, hereby agrees to indemnify Consultant against and to hold
Consultant harmless from Any claims, suits, loss, damages, etc.,
arising out of Consultant's reliance upon the accuracy of such material
facts, material data, and material information.
(D) Company hereby agrees to hold Consultant harmless from any claims,
suits, losses, damages, etc., Arising out of Consultants reliance on
the availability of information supplied to Consultant.
6. COMPENSATION: For all financial public relations services hereunder
during the term hereof, the Company shall pay Consultant as follows:
(A) For services provided as per this agreement, Company agrees to issue
Consultant 400,000 shares for services rendered. Said shares will be
restricted and bear a legend to this effect.
(B) Consultant will devote himself to the task of locating new sources of
funds for the Company, drawing upon his contacts among commercial
lenders, investment bankers, venture capitalists and accredited private
investors. It is further agreed that consultant shall be entitled to a
fee equal to 10% of the funding that the consultant has been
responsible for locating, and said fee may be paid in cash, or if
Consultant is agreeable, in a combination of cash and stock.
(C) At Consultant's option, any invoice presented to the company may be
converted into common shares of the Company, and said shares shall be
restricted and issued with a legend affixed, which states that the
stock is unregistered.
(D) Company agrees to additionally compensate Consultant in the amount of
$8,000.00 on a monthly basis for a period of 6 months.
(E) Company agrees to reimburse Consultant's approved expenses including
travel, meals, entertainment, and transportation with a mutually agreed
per diem on any and all travel.
(F) For all special services not within the scope of the Agreement, Company
shall pay Consultant such fees, costs, and expenses as and when the
parties shall determine in advance of the performance of the special
services.
(G) Consultant or its designee(s) shall be granted warrants to purchase
additional shares of Company immediately upon Company becoming
"public". Such Warrants shall be exercised in whole or part, for period
of three years from the date of signing this a warrant agreement which
shall be in the form as attached hereto as Exhibit "A", which warrant
agreement shall be executed immediately upon Company becoming a
publicly traded company and which fully executed Warrant Agreement with
attached Warrants shall be delivered to Consultant at that time. The
following amounts of stock covered by the Warrants and the exercise
prices shall be as follows;
- 500,000 Warrants at $2.00 (two dollars) per share.
- 500,000 Warrants at $4.00 (four dollars) per share.
- 500,000 Warrants at $7.50 (seven dollars and fifty cents) per
share.
(H) Consultant shall have the option to appoint one Board of Director
position.
7. RELATIONSHIP OF PARTIES: Consultant is an independent contractor,
responsible for all applicable withholding therefrom and taxes thereon.
8. TERMINATION: This agreement may be terminated by either the Company or the
Consultant prior The completion of the terms provided above, as follows:
(A) Upon failure of the other party to cure a default under or breach of
this Agreement within thirty(30) days after written notice is given to
such default of breach by the terminating party;
(B) Upon the bankruptcy or liquidation of the other party, whether
voluntary or involuntary;
(C) Upon the other party taking the benefit of any insolvency law and/or
(D) Upon the other party having or applying for a receiver to be appointed
for all or a substantial Portion of such party's assets or business.
(E) All parties reserve the right to cancel at anytime.
9. ATTORNEY FEES: Should a party default in the terms or conditions of this
Agreement and suit be filed as a result of such default, the prevailing
party shall be entitled to recover all costs incurred as a result of such
default including all costs and reasonable attorney fees, expenses, and
court cost through trial and appeal.
10. WAIVER OF BREACH: The waiver by a party of a breach of any provision of
this Agreement by another party shall not operate or be construed as a
waiver of any subsequent breach by the breaching party.
11. ASSIGNMENT: The rights and obligations of the parties under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the parties.
12. NOTICES: Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by certified mail, to the
principal office of the party being notified.
13. ENTIRE AGREEMENT: This instrument contains the entire agreement of the
parties and may be modified only by agreement in writing, signed by the
party against whom enforcement of any waiver, change modification,
extension or discharge is sought. If any provision of the Agreement is
declared void, such provision shall be deemed severed from this Agreement,
which shall otherwise remain in full force.
14. GOVERNING LAW: This Agreement shall be a contract made on the State of
Washington and shall be interpreted and governed by and construed in
accordance with the laws of the State of Washington.
15. TAXES: Any and all taxes, excise, assessments levies, interest and
penalties which may be assessed, levied or imposed by any governmental
agency in connection with this Agreement shall be by the party upon which
they are imposed and shall be the sole obligation of such party.
16. ARBITRATION: Any contoversy or claim arising out of or relating to this
Agreement shall be settled by arbitration the State of Washington in
accordance with the applicable rules, then obtaining, of the American
Arbitration Association.
17. COUNTERPARTS: This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement.
INSYNQ, Inc. One Click Investments, LLC
By: By:
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John P. Gorst Chairman and CEO Eric R. Estoos/Managing Partner
AMENDMENT NO. 1 TO
CONSULTING AGREEMENT
THIS AMENDMENT NO. 1 TO CONSULTING AGREEMENT (this "Amendment") is
effective as of June 30, 2000 by and between Xcel Management, Inc., a Utah
corporation (the "Company"), and One Click Investments, LLC ("Consultant").
W I T N E S S E T H
WHEREAS, the original Consulting Agreement dated as of September 20, 1999
was executed by and between Insynq, Inc., a Washington corporation and
Consultant;
WHEREAS, the original Consulting Agreement was assigned to and assumed by
the Company in connection with an asset purchase whereby the Company purchased
substantially all of the assets of Insynq on February 18, 2000;
WHEREAS, the original Consulting Agreement granted certain warrants to
Consultant (the "Warrants"); and
WHEREAS, the Company and Consultant have deemed it to be in their mutual
best interests to amend the Consulting Agreement to reflect a new exercise date
to purchase common stock, $0.001 par value per share (the "Common Stock"), of
the Company thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 6 (G) is amended to read in its entirety as follows:
"6. COMPENSATION: (G) Consultant or its designee (s) shall be granted
warrants to purchase additional shares of the Company on February 18, 2000 (the
"Warrants"). Such Warrants shall become exercisable on December 31, 2000, and
may be exercised, in whole or in part, for a period of three years from such
date, pursuant to a warrant agreement in the form as attached hereto as
Exhibit A (the "Warrant Agreement"). The following amounts of stock covered by
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the Warrants and the exercise prices shall be as follows:
- 250,000 Warrants at $ 4.00 (Four Dollars) per share
- 250,000 Warrants at $ 8.00 (Eight Dollars) per share
- 250,000 Warrants at $15.00 (Fifteen Dollars) per share."
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
ONE CLICK INVESTMENTS, LLC
By: /s/ Eric Estoos
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Name: Eric Estoos
---------------------------------
Title: President
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XCEL MANAGEMENT, INC.
By: /s/ John P. Gorst
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Name: John P. Gorst
---------------------------------
Title: CEO
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AMENDMENT NO. 2 TO
CONSULTING AGREEMENT
THIS AMENDMENT NO. 2 TO CONSULTING AGREEMENT (this "Amendment") is
effective as of October 31, 2000 by and between Insynq, Inc., a Delaware
corporation (the "Company"), and One Click Investments, LLC ("Consultant").
W I T N E S S E T H
WHEREAS, the original Consulting Agreement dated as of September 20, 1999
was executed by and between Insynq, Inc., a Washington corporation and
Consultant;
WHEREAS, the original Consulting Agreement granted certain warrants to
Consultant (the "Warrants"); and
WHEREAS, the Company and Consultant have deemed it to be in their mutual
best interests to amend the Consulting Agreement to reflect a new exercise date
to purchase common stock, $0.001 par value per share (the "Common Stock"), of
the Company thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 6 (G) is amended to read in its entirety as follows:
"6. COMPENSATION: (G) Consultant or its designee (s) shall be granted
warrants to purchase additional shares of the Company on February 18, 2000 (the
"Warrants"). Such Warrants shall become exercisable on February 28, 2001, and
may be exercised, in whole or in part, for a period of three years from such
date, pursuant to a warrant agreement in the form as attached hereto as Exhibit
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A (the "Warrant Agreement"). The following amounts of stock covered by the
- -
Warrants and the exercise prices shall be as follows:
- 500,000 Warrants at $2.00 (Two Dollars) per share
- 500,000 Warrants at $4.00 (Four Dollars) per share
- 500,000 Warrants at $7.50 (Seven Dollars and Fifty Cents) per share."
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
ONE CLICK INVESTMENTS, LLC
By: /s/ Eric Estoos
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Name: [ILLEGIBLE]^^
-----------------------------
Title: President
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INSYNQ, INC.
By: /s/ John P Gorst
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Name: John P. Gorst
-----------------------------
Title: Chairman CEO
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