As filed with the Securities and Exchange Commission on May 24, 2002 Reg. No. __
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
ESYNCH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 87-0461856
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
3511 W. Sunflower Ave. Suite 250
Santa Ana, California 90035
(Address of principal executive offices)
------------------------------------------------
ADVISORY AND CONSULTING AGREEMENT
(Full title of plan)
--------------------------------
Thomas Hemingway
Chief Executive Officer
3511 W. Sunflower Ave. Suite 250
Santa Ana, California 90035
(714) 258-1900
(Telephone number, including area code of agent for service)
Copy to:
NACCARATO & ASSOCIATES
Owen Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered (1) per share (2) Price Registration fee
====================== ====================== ====================== ====================== ======================
Common Stock 1,970,000 $0.04 $ 78,800 $ 7.25
(no par value)
Common Stock 3,390,000 $0.07 $237,300 $21.83
(underlying options)
====================== ====================== ====================== ====================== ======================
(1)Represents 160,000 shares of Common Stock to be issued to an attorney with
Naccarato & Associates as compensation for services rendered by Naccarato &
Associates pursuant to a fee agreement, and 5,200,000 shares and shares
underlying options being granted to consultants.
(2) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457 (h) of the General Rules and
Regulations under the Securities Act of 1993, based upon the average of the bid
and asked prices per share of the registrant's common stock reported by the OTC
Nasdaq Stock Market on May 23, 2002 for 1,790,000 shares and the exercise price
for the 3,390,000 shares underlying options.
PART I
The document(s) containing the information specified in Part I will
be sent or given to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"). Such documents are not being
filed with the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. Such documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of Section
10(a)of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by eSynch Corporation (the "Company")
with the Commission (File No. 0-26790) are incorporated in and made part of this
registration statement by reference, except to the extent that any statement or
information therein is modified, superseded or replaced by a statement or
information contained in any other subsequently filed document incorporated
herein by reference.
(1) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2001.
(2) All other reports filed by the Company pursuant to Section 13(a) or
Section 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2001 through the date hereof;
(3) The Company's definitive 14C proxy filed February 25, 2002 statement
for its 2001 annual mailing to stockholders.
(4) the Registrant's Form 8-A pursuant to Section 12 of the Exchange Act,
in which there is described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock, and
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the filing
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference and to be
a part hereof from the date of filing such documents.
For purposes of this registration statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Owen M. Naccarato, does consulting work for eSynch Corporation
from time to time and is being issued 160,000 shares of the Company's common
stock as consideration for filing this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") empowers a Delaware corporation, including the Company, to indemnify its
directors, officers, employees, and agents under certain circumstances. The
Company's Restated Certificate of Incorporation (the "Certificate") provides
that the Company shall indemnify current and former directors and officers of
the Company or persons who serve or have served, at the request of the Company,
as directors or officers of any other corporation in which the Company at such
time owns or owned shares of stock or is or was a creditor, to the full extent
authorized by the Delaware GCL as it may from time to time be amended. Moreover,
the Certificate provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except (i) for any breach of the duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) for
liability under Section 174 of the Delaware GCL (involving certain unlawful
dividends or stock repurchases), or (iv) for any transaction from which the
director derived an improper personal benefit.
Under the Delaware GCL, to the extent that an officer or director of a
corporation is successful on the merits in the defense of an action, the
corporation must indemnify such person for his or her actual and reasonable
expenses incurred in connection with such defense. The Certificate provides that
the Company shall indemnify officers and directors against any and all expenses,
including amounts paid on judgment, counsel fees, and amounts paid in settlement
(before or after suit is commenced) by such persons in connection with the
defense or settlement of any claim, action, suit or proceeding in which they, or
any of them, are made parties, to the full extent permitted by the Delaware GCL.
Under its Bylaws, the Company may indemnify its directors, officers,
employees and agents and the directors, officers, employees or agents of any
other corporation if the person was serving at the request of the Company. The
indemnification is required if the person is successful on the merits or
otherwise in defending the claim and is permitted in other circumstances, if
indemnification is authorized in the specific instance by the Company or by a
majority vote of the Company's stockholders. Indemnification is permitted only
if the person was acting in good faith in a manner reasonably believed to be in
or not opposed to the best interests of the Company. If the person is judged to
be liable to the Company in any action brought in the Company's name,
indemnification is only permitted if the court acting in the matter specifically
allows it. The Company is authorized to advance expenses to a director or
officer upon that person's agreement to repay the Company if such person
ultimately is not entitled to indemnification.
The Company is also empowered under its Bylaws to purchase insurance on
behalf of any person whom the Company is required or permitted to indemnify. The
Company has entered into agreements with its directors and executive officers,
which require the Company to indemnify such persons to the fullest extent
permitted by law against certain losses that they may incur in legal proceedings
arising in connection with their services to the Company and to advance expenses
upon their agreement to repay the Company if such person is ultimately not
entitled to indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the registrant
has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes to file, during any period in which
offers or sales are being made of the securities registered hereby, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, that are
incorporated by reference in the registration statement.
(b) The Company hereby agrees that, for the purposes of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
(c) The Company hereby undertakes to remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering;
(d) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Ana, State of California on May 23, 2002.
eSYNCH CORPORATION
By: /s/ Thomas Hemingway
------------------------------------
Thomas Hemingway, Chief Executive Officer
By: /s/ Mark Utzinger
------------------------------------
Mark Utzinger, Vice president - Finance.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas Hemingway, each of them acting
individually as his attorney-in-fact, each with full power of substitution and
re-substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith as fully to al intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
/s/ Thomas Hemingway Chairman, May 23, 2002
--------------------------- Chief Executive Officer
Thomas Hemingway and Director
/s/ Mark Utzinger Vice President Finance May 23, 2002
---------------------------
Mark Utzinger
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Consulting Agreement: Jan Anthony Kusy
4.2 Consulting Agreement: Charles Lewis
4.3 Consulting Agreement: Lee Puglisi
4.4 Consulting Agreement: Garrrett Budd
4.5 Consulting Agreement: Owen Naccarato
5.1 Opinion of Counsel, regarding the legality of the securities registered
hereunder.
23.1 Consent of Hansen, Barnett & Maxwell, CPA
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24 Power of Attorney (Contained within Signature Page)
EXHIBIT 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this May 22, 2002 and between Jan Anthony Kusy (hereinafter referred to as
"Consultant"), an individual, having his principle address at 975 South Tahoe
Blvd. South Lake Tahoe, NV 98115 and eSynch Corporation (hereinafter referred to
as the "Company") with offices at 3511 W. Sunflower Ave. Suite 250 Santa Ana, CA
92704.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management, strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with strategic planning, marketing
andconsulting services and is desirous of performing such services for the
Company; and
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this Agreement,
and shall terminate 120 days hence, unless terminated or extended in accordance
with a valid provision contained herein, or unless extended by a subsequent
agreement between the parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to undertake
for and consult with the Company concerning management of sales and marketing
resources, consulting, strategic planning, corporate organization and structure,
financial matters in connection with the operation of the businesses of the
Company, expansion of services, mergers and acquisitions and other business
opportunities. Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning to fully
develop and enhance the Company's assets, resources, products and services;
(b) The implementation of a marketing program to enable the Company to broaden
the markets for its services and promote the image of the Company and its
products and services;
(c) The identification, evaluation, structuring, negotiating and closing of
joint ventures, strategic alliances, mergers and acquisitions and advice with
regard to the ongoing managing and operating of such acquisitions upon
consummation thereof; and
(d) Nothing in this Agreement shall be in any way demand, entice or require
Consultant to circumvent or violate the provisions of Form S-8 of the Securities
Act of 1933, as amended, including, but not limited to, providing any service
that is in connection with the offer or sale of securities in a capital-raising
transaction or to directly or indirectly promote or maintain a market for the
Corporation's securities.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with all
approved data and information about it, its subsidiaries, its management, its
products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with all data and information supplied by any financial
analyst, and with all brochures or other sales materials relating to its
products or services.
5. COMPENSATION.
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement: (a)
Options. Company shall grant the consultant an option to purchase 3,390,000
shares of the Company's common stock at an exercise price of USD $.07 per share.
Consultant's rights regarding these shares shall vest immediately upon execution
of this Agreement.
(b) The Compensation outlined in Section 5(a) above shall be conveyed through
an effective S-8 registration of common shares. Within 3 days of the
effectiveness of the S-8 Registration Statement, the Company shall execute a
written request to its transfer agent to prepare and deliver to Consultant, or
it's agent, one common stock certificate for 3,390,000 freely tradable,
non-legend, shares of the Company's common stock upon exercise of the option at
$.07 per share.
5.5 COSTS AND EXPENSES
(a) Miscellaneous Costs.
Subject to the prior approval of the Company, Consultant in providing the
foregoing services, shall not be responsible for any out-of-pocket costs,
including, without limitation, travel, lodging, telephone, postage and Federal
Express charges. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. 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. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned services.
7. MISCELLANEOUS.
Termination: Subsequent to and no less than 30 days after the execution of this
Agreement, this Agreement may be terminated by either Party upon written notice
to the other Party for any reason and shall be effective five (5) business days
from the date of such notice. Termination of this Agreement shall cause
Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlined in
Section 5 of this Agreement.
Modification: This Consulting Agreement sets forth the entire understanding of
the Parties with respect to the subject matter hereof. This Consulting Agreement
may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall be in
writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the discretion of
the Consultant.
Severability: If any provision of this Consulting Agreement is invalid, illegal,
or unenforceable, the balance of this Consulting Agreement shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of this
Consulting Agreement shall be submitted to arbitration under the rules of the
American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Santa Ana, CA. The interpretation and the enforcement of this Agreement
shall be governed by California Law as applied to residents of the State of
California relating to contracts executed in and to be performed solely within
the State of California. In the event any dispute is arbitrated, the prevailing
Party (as determined by the arbiter(s)) shall be entitled to recover that
Party's reasonable attorney's fees incurred (as determined by the arbiter(s)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the Parties
as of the date first above written.
Esynch Corporation. CONSULTANT
/s/ Tom Hemingway /s/ Jan Anthony Kusy
-------------------- -----------------------
Tom Hemingway, Jan Anthony Kusy
Chairman, President and CEO
EXHIBIT 4.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement")
is made as of this May 22, 2002 and between Charles Lewis (hereinafter referred
to as "Consultant"), an individual, having his principle address at 45 B Street,
Suite 780, San Diego, CA, 92101 and eSynch Corporation (hereinafter referred to
as the "Company") with offices at 3511 W. Sunflower Ave. Suite 250 Santa Ana, CA
92704.
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general corporate
matters, particularly related to shareholder relations, and other projects
as may be assigned by Thomas Hemingway, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable times
when and to the extent requested by, and subject to the direction of Mr.
Hemingway.
3. Reasonable travel and other expenses necessarily incurre by Consultant to
render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements,
including appropriate documentation, with regard to the nature and amount
of those expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting Period during
which any such expenses are incurred. Company shall pay expenses within
fifteen (15) business days of the receipt of a request with appropriate
documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive one million three hundred fifty thousand
(1,350,000) shares of the common stock of the Company.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing
in this agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between the
Consultant and the Company. Both parties acknowledge that the Consultant is
not an employee for state or federal tax purposes. The Consultant shall
retain the right to perform services for others during the term of this
agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be given
either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be
addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by
written notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt; mailed notices
will be deemed communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements
between the parties with respect to the rendering of such services in any
manner whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding. Any modification
of this agreement will be effective only if it is in writing signed by the
party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution
of any disputes hereunder shall be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i) works,
ideas, discoveries, or inventions eligible for copyright, trademark, patent
or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or developed by
the Consultant (or the Consultant's employees) during the term of this
Agreement will be the property of the Consultant, subject to the
irrevocable right and license of the Company to make, use or sell products
and services derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be exclusive
during the term of this Agreement, and any extensions or renewals of it.
After termination of this Agreement, such rights and license will be
nonexclusive, but will remain royalty-free. Notwithstanding the preceding,
the textual and/or graphic content of materials created by the Consultant
under this Agreement (as opposed to the form or format of such materials)
will be, and hereby are, deemed to be "works made for hire" and will be the
exclusive property of the Company. Each party agrees to execute such
documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorde materials
furnished by the Company for use by the Consultant are Proprietary
Information and are the property of the Company. Proprietary Information
includes, but is not limited to, product specifications and/or designs,
pricing information, specific customer requirements, customer and potential
customer lists, and information on Company's employees, agent, or
divisions. The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after the term of
this agreement, any Proprietary Information, confidential information, or
know-how belonging to the Company, whether or not is in written form,
except to the extent necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at the request
of the Company before termination, the Consultant shall deliver to the
Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the
Consultant may have gained knowledge as a result of performing services
hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or
any extension of it, either directly or indirectly (a) for purposes
competitive with the products or services currently offered by the Company,
call on, solicit, or take away any of the Company's customers or potential
customers about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the Consultant
or for any other person or entity, or (b) solicit or take away or attempt
to solicit or take away any of the Company's employees or consultants
either for the Consultant or for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any claims or
damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
Charles L. Lewis ESYNCH CORPORATION
/s/ Charles L. Lewis /s/ Thomas Hemingway
______________________ By:_________________________
Thomas Hemingway
Chief Executive Officer
EXHIBIT 4.3
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement")
is made as of this May 22, 2002 and between Lee Puglisi (hereinafter referred to
as "Consultant"), an individual, having his principle address at 14636 Stirrup
Lane, Wellington, FL 33414 and eSynch Corporation (hereinafter referred to as
the "Company") with offices at 3511 W. Sunflower Ave. Suite 250 Santa Ana, CA
92704.
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual promises
set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general corporate
matters, particularly related to shareholder relations, and other projects
as may be assigned by Thomas Hemingway, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable times
when and to the extent requested by, and subject to the direction of Mr.
Hemingway.
3. Reasonable travel and other expenses necessaril incurred by Consultant to
render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements,
including appropriate documentation, with regard to the nature and amount
of those expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting Period during
which any such expenses are incurred. Company shall pay expenses within
fifteen (15) business days of the receipt of a request with appropriate
documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive three hundred fifty thousand (350,000) shares of
the common stock of the Company.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing
in this agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between the
Consultant and the Company. Both parties acknowledge that the Consultant is
not an employee for state or federal tax purposes. The Consultant shall
retain the right to perform services for others during the term of this
agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be given
either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be
addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by
written notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt; mailed notices
will be deemed communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements
between the parties with respect to the rendering of such services in any
manner whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding. Any modification
of this agreement will be effective only if it is in writing signed by the
party to be charged.
10. This agreement will be governed by and construe in accordance with the laws
of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution
of any disputes hereunder shall be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i) works,
ideas, discoveries, or inventions eligible for copyright, trademark, patent
or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or developed by
the Consultant (or the Consultant's employees) during the term of this
Agreement will be the property of the Consultant, subject to the
irrevocable right and license of the Company to make, use or sell products
and services derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be exclusive
during the term of this Agreement, and any extensions or renewals of it.
After termination of this Agreement, such rights and license will be
nonexclusive, but will remain royalty-free. Notwithstanding the preceding,
the textual and/or graphic content of materials created by the Consultant
under this Agreement (as opposed to the form or format of such materials)
will be, and hereby are, deemed to be "works made for hire" and will be the
exclusive property of the Company. Each party agrees to execute such
documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronicall recorded materials
furnished by the Company for use by the Consultant are Proprietary
Information and are the property of the Company. Proprietary Information
includes, but is not limited to, product specifications and/or designs,
pricing information, specific customer requirements, customer and potential
customer lists, and information on Company's employees, agent, or
divisions. The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after the term of
this agreement, any Proprietary Information, confidential information, or
know-how belonging to the Company, whether or not is in written form,
except to the extent necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at the request
of the Company before termination, the Consultant shall deliver to the
Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the
Consultant may have gained knowledge as a result of performing services
hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or
any extension of it, either directly or indirectly (a) for purposes
competitive with the products or services currently offered by the Company,
call on, solicit, or take away any of the Company's customers or potential
customers about whom the Consultant became aware as a result of the
Consultant's
services to the Company hereunder, either for the Consultant or for any
other person or entity, or (b) solicit or take away or attempt to solicit
or take away any of the Company's employees or consultants either for the
Consultant or for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any claims or
damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
Lee Puglisi ESYNCH CORPORATION
/s/ Lee Puglisi /s/ Thomas Hemingway
______________________ By:_________________________
Lee Puglisi Thomas Hemingway
Chief Executive Officer
EXHIBIT 4.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement")
is made as of this May 22, 2002 and between Garrett M. Budd (hereinafter
referred to as "Consultant"), an individual, having his principle address at
P.O. Box 433, Seal Beach, CA 90740-0433 and eSynch Corporation (hereinafter
referred to as the "Company") with offices at 3511 W. Sunflower Ave. Suite 250
Santa Ana, CA 92704.
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual promises
set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general corporate
matters, particularly related to shareholder relations, and other projects
as may be assigned by Thomas Hemingway, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable times
when and to the extent requested by, and subject to the direction of Mr.
Hemingway.
3. Reasonable travel and other expenses necessaril incurred by Consultant to
render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements,
including appropriate documentation, with regard to the nature and amount
of those expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting Period during
which any such expenses are incurred. Company shall pay expenses within
fifteen (15) business days of the receipt of a request with appropriate
documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive one hundred ten thousand (110,000) shares of the
common stock of the Company.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing
in this agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between the
Consultant and the Company. Both parties acknowledge that the Consultant is
not an employee for state or federal tax purposes. The Consultant shall
retain the right to perform services for others during the term of this
agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be given
either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be
addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by
written notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt; mailed notices
will be deemed communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements
between the parties with respect to the rendering of such services in any
manner whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding. Any modification
of this agreement will be effective only if it is in writing signed by the
party to be charged.
10. This agreement will be governed by and construe in accordance with the laws
of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution
of any disputes hereunder shall be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i) works,
ideas, discoveries, or inventions eligible for copyright, trademark, patent
or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or developed by
the Consultant (or the Consultant's employees) during the term of this
Agreement will be the property of the Consultant, subject to the
irrevocable right and license of the Company to make, use or sell products
and services derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be exclusive
during the term of this Agreement, and any extensions or renewals of it.
After termination of this Agreement, such rights and license will be
nonexclusive, but will remain royalty-free. Notwithstanding the preceding,
the textual and/or graphic content of materials created by the Consultant
under this Agreement (as opposed to the form or format of such materials)
will be, and hereby are, deemed to be "works made for hire" and will be the
exclusive property of the Company. Each party agrees to execute such
documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronicall recorded materials
furnished by the Company for use by the Consultant are Proprietary
Information and are the property of the Company. Proprietary Information
includes, but is not limited to, product specifications and/or designs,
pricing information, specific customer requirements, customer and potential
customer lists, and information on Company's employees, agent, or
divisions. The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after the term of
this agreement, any Proprietary Information, confidential information, or
know-how belonging to the Company, whether or not is in written form,
except to the extent necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at the request
of the Company before termination, the Consultant shall deliver to the
Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the
Consultant may have gained knowledge as a result of performing services
hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or
any extension of it, either directly or indirectly (a) for purposes
competitive with the products or services currently offered by the Company,
call on, solicit, or take away any of the Company's customers or potential
customers about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the Consultant
or for any other person or
entity, or (b) solicit or take away or attempt to solicit or take away
any of the Company's employees or consultants either for the Consultant
or for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any claims or
damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
Garrett M. Budd ESYNCH CORPORATION
/s/ Garrett M. Budd /s/ Thomas Hemingway
______________________ By:_________________________
Garrett M. Budd Thomas Hemingway
Chief Executive Officer
Exhibit 4.5
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of May
22, 2002, by and between Owen Naccarato, 19600 Fairchild, Suite 260, Irvine, CA
92612 ("Consultant") and eSynch Corporation (hereinafter referred to as the
"Company") with offices at 3511 W. Sunflower Ave. Suite 250 Santa Ana, CA 92704
(the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on April 19, 2003, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning
to fully develop and enhance the Company's assets, resources, products and
services; and
(b) Advise the Company relative to its legal needs relating
specifically to its corporate transactional needs.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be
reasonably requested by Consultant, and shall advise Consultant of any facts
which would affect the accuracy of any data and information previously supplied
pursuant to this paragraph. The Company shall promptly supply Consultant with
full and complete copies of all financial reports, all fillings with all federal
and state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
5. COMPENSATION.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Company shall grant the consultant 160,000 shares of the Company's common
stock.
(b) The Compensation outlined in Section 5(a) above shall be conveyed through an
effective S-8 registration of common shares. Within 3 days of the effectiveness
of the S-8 Registration Statement, the Company shall execute a written request
to its transfer agent to prepare and deliver to Consultant, or it's agent, one
common stock certificate for 160,000 freely tradable, non-legend, shares of the
Company's common stock.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. 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. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon written
notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
Modification: This Consulting Agreement sets forth the entire understanding
of the Parties with respect to the subject matter hereof. This Consulting
Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall be in
writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
eSynch Corporation Consultant
/s/ Thomas Hemingway /s/ Owen Naccarato
-------------------- --------------------------
Thomas Hemingway Owen Naccarato
Chief Executive Officer
Exhibit 5.1
OPINION OF COUNSEL
NACCARATO & ASSOCIATES
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261 / (949) 851-9262 (fax)
--------------------------------------------------------------------------------
May 23, 2002
ESYNCH CORPORATION
3511 W. Sunflower Ave. Suite 250
Santa Ana, California 90035
Re: Registration Statement on Form S-8
Gentleman:
I have acted as counsel for ESYNCH CORPORATION, Inc. (the "Company"), in
connection with the preparation and filing of the Company's Registration
statement on Form S-8 under the Securities Act of 1933, as amended, (the
"Registration Statement"), relating to 5,360,000 shares of the Company's common
stock, no par value, (the "common stock"), issuable pursuant to the Company's
Advisory and Consultants Agreements, (the "Plan").
I have examined the Certificate of Incorporation, as amended, and the
By-Laws of the Company and all amendments thereto, the Registration Statement
and originals, or copies certified to my satisfaction, of such records and
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in my judgment are necessary or appropriate to enable me to
render the opinions expressed below.
Based on the foregoing examination, I am of the opinion that the shares
of Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
Owen Naccarato, Esq.
EXHIBIT 23.1
CONSENT OF HANSEN, BARNETT & MAXWELL, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8, pertaining to 5,360,000 shares of common stock, of our
report dated April 12, 2002, with respect to the consolidated financial
statements of eSynch Corporation and Subsidiaries included in its Annual Report
on Form 10-KSB for the year ended December 31, 2001, filed with the Securities
and Exchange Commission.
/s/ Hansen, Barnett & Maxwell
Salt Lake City, Utah
May 22, 2002