▇▇. ▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
Insynq, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
April 1, 2001
Dear ▇▇▇▇:
This letter agreement (the "Agreement") sets forth the terms and
conditions under which Barretto Pacific Corporation ("we," "us" or "BPC"), has
been engaged by Insynq, Inc. (the "Company"), for the purpose of disseminating
and publicizing information regarding the Company, its business and its affairs
to members of the public in the United States of America with a view to
encouraging investment in the Company's securities.
We agree with each other as follows:
1. The term of this Agreement shall commence on April 1, 2000 and expire on
April 2, 2002 (the "Term"). The term may be extended for such periods of
time and upon such terms and conditions as may be mutually agreed upon, in
writing, by the parties, and may be cancelled by either party giving the
other party written notice received by the end of each three month period
ending on July 1,2001, October 1,2001, and January 1, 2002.
2. In consideration of the fee and the covenants herein contained, we shall
provide the services (the "Services") to the Company which shall consist
of the following:
(a) The dissemination of information about the Company, its business and
affairs, in the United States of America, as well as dissemination
through print and electronic media outlets, as well as to our
existing base of clients and business associations.
(b) Communication on an ongoing basis with members of the brokerage and
investment community in jurisdictions within the United States of
America, directing any such persons to registered brokers and dealers
(including those specifically referred by the Company). Anything to
the contrary herein notwithstanding, it is agreed that our services
will not include any services that constitute the general
solicitation or advertising of the Company's securities, the
rendering of legal opinions or the performance of services which
would require our registration as a broker or dealer or render us an
"underwriter" pursuant to federal or state securities laws.
(c) Direct marketing programs, group conference calls, investor
conferences, and other services.
(d) Providing introductions to brokerages, investment banks, fund
managers, trust companies, media personnel and other investment
professionals, as well as private investors who are likely to have
interest in the Company's business and affairs.
3. We shall receive as compensation for our services as an independent
contractor hereunder, the Warrant described in paragraph 4 hereof and the
fee indicated below payable on each of the following dates provided that
this Agreement has not been terminated by either party as of such date:
The fee may be paid in cash or the equivalent dollar value in restricted
shares of the Company. If in shares, the average closing price of the
preceding 5 days prior to the payment date shall be used to determine the
number of shares due as payment. The initial payment if in shares will be
92,000 shares. We will invoice the Company for each payment prior to the
due date, providing this Agreement has not been terminated.
Fee Payment Date
$27,500 Upon the execution of this Agreement
$27,500 July 2, 2001
$27,500 October 2, 2001
$27,500 January 2, 2002
Payment shall be made by wire transfer to the following account:
Barretto Pacific Corporation
Key Bank of Washington
Account No. 471661005077
ABA No. ▇▇▇▇▇▇▇▇▇
If the fee is paid in shares they will be transmitted via DTC to the
following account:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co.
For/ Barretto Pacific Corporation
Account No. 2136-4174
DTC No. 0164, Code 40
4. The fee payable to us under Paragraph 3 hereof, and the Warrant issued to
us, annexed hereto as Exhibit A (the "Warrant"), shall be our sole and
exclusive entitlement against the Company for compensation for services
rendered hereunder, and we shall not be entitled to claim recompense for
any of the expenses, out of pocket or otherwise, that are incurred in the
course of carrying out our duties hereunder. Without limiting the
generality of the foregoing, the Company agrees that our services (i) are
not intended to include the printing of any documentary material on behalf
of the Company and that any expenses that we may incur in that respect,
with the Company's prior written consent, shall be separately reimbursed
to BPC by the Company and (ii) are intended to include, without
limitation, all other expenses reasonably expected to be incurred in
connection with our provision of the Services.
5. We shall only engage in promotion of the Company regarding its business
and affairs. The Company reserves the right to contract other firms to
provide similar services and expressly acknowledges that we shall be
entitled to provide services to other public companies, provided that such
other representation does not in any way interfere or conflict with the
effective performance of our duties hereunder.
6. All payments hereunder will be made to BPC as an independent contractor
and we will be solely responsible for federal, state, and city tax filings
and remittances.
7. We represent and warrant that the services will be performed in a
competent and efficient manner and that they will at all times be
performed in compliance with all applicable laws and legal requirements,
including but not limited to all applicable federal and state securities
laws and regulations applicable to us or to the Company. Without limiting
the generality of the foregoing, we represent and warrant that our
provision of the Services, as described in Section 2 hereof, shall not be
deemed to be a general solicitation, a general advertising or an offering
of securities of the Company pursuant to any applicable federal or state
securities laws or regulations.
8. We shall use our bona fide efforts to promote the interests of the Company
and shall, during the term of the Agreement, devote as much time,
attention and ability to the promotion of the business of the Company as
is necessary to provide effective promotion of the Company and its
affairs.
9. We are not hereby, or by the provision of the Services, created an agent
of the Company, and will have no authority, express or implied, to commit
or otherwise obligate the Company in any manner whatsoever.
10. Notwithstanding anything herein to the contrary, it is acknowledged and
agreed that the relationship between us is not and will not become that of
employer-employee, joint venturers, nor partnership and, furthermore, that
the relationship that exists between us is solely that of independent
contractors.
11. We shall not, either during the term of the Agreement or at any time
thereafter, directly or indirectly, divulge, publish or disclose any
information regarding the affairs or business of the Company or its
affiliates other than that which is expressly authorized and provided by
the Company without the prior written consent of the Company, and we shall
not use for our own purposes, or any purposes other than those of
providing the Services to the Company, any information we may acquire with
respect to its affairs, business, or projects. Upon the termination of
this Agreement for any reason, we shall promptly return to the Company all
documents and other property of the Company, and all copies thereof,
including but not limited to all such promotional aids, correspondence and
contracts and all such documents and other property shall be delivered in
accordance with the direction of the Company.
12. We acknowledge that we have received and read the Company's most recently
filed public documents. The Company has also made available to us all
other documents and information that we have requested relating to the
Company.
13. Any notice required or permitted to be given by this Agreement shall be in
writing and may be given by personal delivery, by overnight courier, by
facsimile (with confirmation of receipt), or postage prepaid, registered
or certified mail. Such notices shall be addressed to the receiving party
at its address set forth herein or at such other addresses as either of us
may, by notice, designate. Notices personally given or given by facsimile
shall be deemed to be given as of the date of actual receipt.
14. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns, as
the case may be. This Agreement may not be assigned provided that any
sale of capital stock of the Company or all or substantially all of its
assets shall not be deemed an assignment.
15. Each provision and paragraph of this Agreement is declared to constitute a
separate and distinct covenant and to be severable from all other such
separate and distinct covenants under this Agreement. If any covenant or
provision herein contained is determined to be void or unenforceable, in
whole or in part, such determination shall not affect or impair the
validity or enforceability of any other covenant or provision contained in
this Agreement and the remaining provisions of this Agreement shall be
valid and enforceable to the fullest extent provided by law.
16. We represent and warrant that no broker or other individual has been
retained by us in connection with the subject matter of this Agreement
which may be entitled to be paid a fee by the Company in connection
herewith, and we agree to indemnify and save harmless the Company and its
officers and directors from any claim made by any and all such persons as
a result of any breach of the foregoing representation. However, we shall
not be prohibited by this agreement from engaging for compensation third
parties to assist us in our efforts under this Agreement, provided that
the Company is only obligated to pay the compensation specified in this
Agreement to BPC, and that such third parties acknowledge that they shall
not be entitled to any compensation from any party other than us.
17. This Agreement replaces, supersedes, and cancels all prior agreements,
representations, and understandings between the Company and BPC in respect
of the subject matter of this Agreement.
18. This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Washington
applicable to contracts executed and to be performed wholly within such
state.
18. Any process against the Company or BPC in, or in connection with any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, may be served personally or by certified
mail pursuant to the notice provision set forth in Section 13 hereof with
the same effect as though served on it personally. The Company and BPC
hereby irrevocably submits in any suit, action or proceeding arising out
of or relating to this Agreement, or any of the transactions contemplated
hereby, to the exclusive jurisdiction and venue of the federal and state
courts of the State of Washington, and irrevocably waives any and all
objections to exclusive jurisdiction and review of venue that any such
party may have under the laws of the State of Washington or the United
States.
19. The Company and BPC hereby waive any right they may have to a trial by
jury in respect of any action, proceeding or litigation directly or
indirectly arising out of, under, or in connection with this Agreement.
21. No amendment or waiver of any provision of this Agreement shall be binding
upon a party unless made in writing and signed by such party.
22. The parties will execute and deliver all such further documents and
instruments and do all such further acts and things as may be required to
carry out the full intent and meaning of this Agreement.
23. At any time prior to November 1, 2002 and for so long as the five-day
average closing bid price for the Company's common stock is at least $1.50
greater than the exercise price of the Company's Shares, we shall be
entitled to purchase Shares of the Company according to the vesting
schedule outlined in the Warrant Agreement attached hereto as Exhibit A.
The Company will, immediately following the execution of this Agreement,
register under the Securities Act of 1933, as amended (the "Act") the
Shares of common stock issuable to BPC pursuant to the exercise of the
Warrant (the "Registerable Securities") by filing a Registration Statement
on Form S-8 covering the Registerable Securities. The Company shall effect
such registration referred to in this paragraph at its own cost and
expense and shall maintain the effectiveness of such registration for a
period of eighteen months subsequent to the date of such registration. In
connection with these registration rights, we shall provide the Company
with all information about ourselves required to be included in the
aforesaid registration statements, and shall indemnify and hold harmless
the Company, and its officers, directors, shareholders, agents and
representatives, and each of their affiliates, against any losses, claims,
damages or liabilities, to which any of the same may become subject under
the Act or any similar federal statute, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of our actions hereunder or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
registration statement under which such Registerable Securities are
registered under the Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such actual or alleged untrue
statement or omission was made in reliance upon, and in conformity with,
any statement furnished to the Company pursuant to this paragraph by you
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus or amendment or supplement, and
we shall reimburse any of the same for any legal or any other expenses
reasonably incurred by them in connection with investigation or defending
any such loss, claim, damage, liability or action.
24. BPC shall indemnify and hold harmless the Company, its directors and
officers, and each Person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended) against all losses, claims,
damages, liabilities and expenses (including reasonable attorneys' and
accountants' fees, disbursements and expenses, as incurred) incurred by
such party arising out of or based upon (i) any breach of a representation
or warranty or breach of or failure to perform any covenant or agreement
on the part of BPC contained in this Agreement or (ii) any suit, claim,
investigation, action or other proceeding before any governmental entity
in connection with this Agreement or the consummation of the transactions
contemplated hereby.
25. This Agreement may be terminated at any time by the Company upon a breach
of any covenant or agreement on the part of BPC set forth in this
Agreement or if any representation or warranty of BPC set forth in this
Agreement shall not be true and correct. If this Agreement is terminated
by the Company pursuant to the provisions of this Section 23, this
Agreement and the Warrant shall forthwith become void and there shall be
no further obligations on the part of the Company or the Purchaser or
their respective stockholders, directors, officers, employees, agents or
representatives, except for the provisions of Sections 4, 11, 13, 16, 18,
19, 20, 22, 23 and 24, which shall survive any termination of this
Agreement; provided, that nothing in this Section 23 shall relieve either
party from liability for any material or willful breach of this Agreement.
26. All representations and warranties of BPC set forth in this Agreement or
in any writing delivered by BPC in connection herewith shall survive the
expiration of this Agreement (regardless of any investigation, inquiry, or
examination made by any party or on its behalf or any knowledge of any
party) until the expiration of the applicable statute of limitations for
any claims relating thereto.
Please confirm that the foregoing correctly sets forth our agreement by
initialing each page, signing this signature page, and returning to us a copy
of this Agreement. We look forward to working with you and to the successful
conclusion of this assignment.
Sincerely yours,
BARRETTO PACIFIC CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Agreed to and Accepted:
INSYNQ, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer