SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (this "Agreement") is made and
entered into effective as of April 28, 2004, by and between Milestone Equity
Partners Phoenix, LLC, (formerly at 0000 X Xxxxxxxxxx Xx., Xxx 000, Xxxxxxxxxx,
XX 85251) located for purposes of this agreement at 0000 X Xxxxxxxxxx Xxxxx Xx.,
Xxx 000, Xxxxxxxxxx XX 00000 (the "Milestone"), and DynaSig Corporation, an
Arizona corporation, with a place of business at 00000 Xxxxx 00xx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 ("DynaSig"). DynaSig and Milestone are jointly
referred to as the "Parties."
RECITALS
A. Milestone is a consulting company and is in the business of providing
certain financial consulting and advisory services to clients.
B. DynaSig is a marketing company trying to enter the dynamic signature
authentication business.
C. DynaSig entered into a consulting agreement with Milestone dated June 20,
2003 (the "Contract"). As consideration for Milestone's activities under the
Contract, DynaSig also issued a Purchase Warrant to Milestone dated June 20,
2003 (the "Warrant").
D. DynaSig and Milestone now desire that the Warrant and the Contract be
exchanged for a Convertible Promissory Note in the form attached hereto as
Exhibit A, secured by a Security Agreement in the form attached hereto as
Exhibit B (collectively, the "Note Documents").
AGREEMENTS
Now, Therefore, in consideration of the promises and mutual agreements set
forth herein, Milestone, for themselves and any partners, members, claimants or
assignees jointly and severally, and DynaSig hereby agree as follows:
1. NOTE DOCUMENTS
Concurrently with the execution hereof, DynaSig is executing and delivering
to Milestone the Note Documents.
2. RELEASE
The Parties, for themselves and on behalf of their respective partners,
members, claimants, successors and assigns, fully release, quit and discharge
the other, and all their officers and directors, employees, shareholders,
members, consultants, attorneys, accountants, other professionals, insurers,
agents and all other entities related to each Party, including but not limited
to assigns, controlling corporations, subsidiaries or other affiliates (jointly
the "Related Parties"), from all rights, claims, demands, actions, and causes of
action which each Party now has or may have against the other or any of them
from any source whatsoever, whether or not (a) arising from or related to the
above recited facts, (b) know or unknown, (c) disclosed or undisclosed,
(collectively, the "Claims"), except for those rights or obligations arising out
of this Agreement, the Note Documents, and any agreements between the Parties
subsequent to the date hereof.
3. INDEMNIFICATION
Each Party agrees to hold the other harmless and indemnify and defend the
other Party and its Related Parties from all losses, actions, damages,
liabilities and expenses, including attorney's fees and costs arising from,
related to or in connection with the actions and omissions of a Party that
occur, or with respect to omissions, fail to occur, after the date hereof or
from any Claims made by any person through such Party.
4. EXPENSES
The Parties shall bear all their own expenses in connection with this
Agreement.
5. COVENANTS
(a) Each of the Parties represents and warrants to the other that it
has full power and authority to enter into this Agreement.
(b) Milestone acknowledges that it has had full access to all
information about DynaSig that Milestone has requested and that DynaSig
makes no representation as to the future value of DynaSig.
(c) Each Party shall be liable for its own taxes on the transaction in
this Agreement.
(d) DynaSig represents and warrants to Milestone that DynaSig has full
power and authority to enter into the Note Documents, and the Note
Documents are valid and binding obligations of DynaSig, enforceable against
DynaSig in accordance with their terms.
6. GOVERNING LAW; VENUE
This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona, without reference to choice of law principles. The
Parties agree that the state and federal courts sitting in Maricopa County,
Arizona shall have sole jurisdiction and venue of any action related to this
Agreement.
7. SEVERABILITY
If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid, illegal or otherwise unenforceable, the
same shall not effect the other terms or provisions hereof or the whole of this
Agreement, but such term or provision shall be deemed modified to the extent
necessary in the court's opinion to render such term or provision enforceable,
and the rights and obligations of the Parties shall be construed and enforced
accordingly, preserving to the fullest permissible extent the intent and
agreements of the Parties herein set forth.
8. NOTICE
Any notice or other communication given pursuant to this Agreement shall be
in writing and shall be effective either when delivered personally to the Party
for whom intended, or five days following deposit of the same into the United
States mail (certified mail, return receipt requested, or first class postage
prepaid), addressed to such Party at the address set forth on the initial page
of this Agreement. Either Party may designate a different address by notice to
the other given in accordance herewith.
9. CONSTRUCTION
The Parties hereby acknowledge and agree that each Party has participated
in the drafting of this Agreement and that this Agreement has been, to the
extent it was felt necessary, reviewed by the respective legal counsel for the
Parties and that the rule of construction to the effect that any ambiguities are
to be resolved against the drafting Party will not be applied to the
interpretation of this Agreement. No inference in favor of, or against, any
Party will be drawn from the fact that one Party has drafted any portion hereof.
10. ADVICE OF COUNSEL
Each Party hereby acknowledges that it is entitled to and has been afforded
the opportunity to consult legal counsel of its choice regarding the terms and
conditions and legal effects of this Agreement, as well as the advisability and
propriety thereof. Each Party hereby further acknowledges that having so
consulted with legal counsel of its choosing or having chosen not to consult,
hereby waives any right to such legal representation or effective representation
and any right to raise or rely upon the lack of representation or effective
representation in any future proceedings or in connection with any Claim.
11. COMPLETE AGREEMENT; AMENDMENT
This Agreement, including the Note Documents, sets forth the entire
understanding between the Parties and supercedes all prior agreements,
arrangements and communications, whether oral or written, with respect to the
subject matter hereof. No other agreements, representations, warranties or other
matters, whether oral or written, shall be deemed to bind the Parties hereto
with respect to the subject matter hereof. This Agreement may not be modified or
amended except by the mutual written agreement of the Parties.
In Witness Whereof, the Parties have duly executed this Agreement as of the
day and year first above written.
DynaSig Corporation Milestone Equity Partners Phoenix, LLC
/s/ Xxxxxxx X. Xxx /s/ Xxxx Xxxxxxx
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By: Xxxxxxx Xxx By: Xxxx Xxxxxxx
Its: President Its: Authorized Person
