Exhibit 4.1
CONSULTING AGREEMENT
AGREEMENT, made this 5th day of November 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. NATURE OF SERVICES: The Company hereby engages the Consultant
to render the services hereinafter described during the term
hereof (it's 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, including any revision of the Company's
business plan.
(b) Render advice with respect to leasing.
(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
2. 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.
3. COMPENSATION: For corporate 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, the Company will pay a fee
at the signing of this agreement 85,000,000 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, or
any other transaction involving any products, transfers or
contracts, or third party assignments thereof.
4. 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.
5. 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 of this Agreement or conclusion thereof,
these terms and conditions of this Section 6 will survive and
be in full effect for a period of three (3) months from the
termination or conclusion of this Agreement.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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
Attention: Cliff Mastricola
If to Company:
Insynq, Inc.
1127 Broadway Plaza, Suite 202
Tacoma, WA 98402
Attn: John P. Gorst
12. 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.
13. 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 Washington 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 Seattle, WA 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 November, 5th, 2005 by and between:
INSYNQ, INC. CLIFF MASTRICOLA
BY: /s/ John P. Gorst BY: /s/ Cliff Mastricola
John P. Gorst, Chairman/ CEO Cliff Mastricola