SETTLEMENT AND RELEASE AGREEMENT
This Release and Settlement (hereinafter "Agreement") is made effective as
of. latest date set forth on the signature pages hereof, by and between 1)
Insynq, Inc., whose address is 0000 Xxxxxxxx Xxxxx, Xxxxxx, XX 00000; relevant
employees, agents, ) and/or members of the Board of Directors of Insynq;
("Insynq") and 2) Xxxxxxx X. Xxxxxx, whose address is 00000 000xx Xxxxxx X.X.,
Xxxxxxx, XX 00000.
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein, Insynq and Hargin agree as follows:
1. RELEASE AGREEMENT
1.1 Release. In exchange for, and upon delivery of the seventeen thousand five
hundred dollars ($17,500) and Two Hundred Thousand (200,000) Insynq
Non-qualified stock options (NQSO), as defined and using the delivery
schedule defined in section 2 herein, Hargin and Insynq, individually and
on behalf of themselves, their predecessors, successors, heirs,
beneficiaries and assigns, release and forever discharge each other, their
respective attorneys, and their predecessors, successors, heirs,
beneficiaries and assigns, from and against any and all claims, damages,
actions, causes of action, liabilities, judgments, liens, contracts,
agreements, rights, debts, suits, obligations, promises, acts, costs and
expenses, damages, and charges of whatsoever nature, whether known or
w1known, suspected or unsuspected, fixed or contingent, which they now
have, claim to have, or at any time had or claimed to have as a result of
any thing undertaken, done, or omitted to be done including anything,
arising out of, or m any way related to, any litigation, proceedings and/or
claims between and among the parties to this Agreement, and/or any act or
omission of the either party, their respective attorneys, and their
predecessors, successors, heirs, beneficiaries and assigns
1.2 Hargin agrees to immediately dismiss, without prejudice, the Complaint for
damages against InsynQ m the Superior Court for the State of Washington in
and for the County of Xxxxxx, Case No.00-2-08573-1. Hargin also agrees to
dismiss, with prejudice, the Complaint for damages against InsynQ m the
Superior Court for the State of Washington in and for the County of Xxxxxx,
Case No.00-2-08573-1 upon receipt of the seventeen thousand five hundred
dollars ($17,500) and Two Hundred Thousand (200,000) options under the
schedule identified in section 2. The dismissal without prejudice shall be
filed m the appropriate courts upon the execution of this agreement and the
dismissal with prejudice shall be filed m the appropriate courts upon
receipt of said cash and options pursuant to this agreement.
1.3 It is understood and agreed that this settlement is the compromise of a
disputed claim, and this payment is not to be construed as admission of
liability on Insynq or Hargin by whom liability is expressly denied.
2. CASH, ATTORNEY'S FEES, NQSO, CONDITION PRECEDENT AND PRESS RELEASE
2.1 Cash. Hargin will receive fifteen thousand dollars ($15,000) in two
payments often thousand dollars ($10,000) and five thousand dollars
($5,000). The first payment of ten thousand dollars ($10,000) shall be
issued within ten business days of the receipt of the second traunch of
funding from the current group of investors who have proposed to fund
InsynQ with 1.2 million dollars in three traunches. The second payment of
five thousand dollars ($5,000) shall be issued within ten business days of
the receipt of third traunch from the funding group mentioned in the prior
sentence.
2.2 Attorney Fees. A payment of two thousand five hundred dollars ($2,500)
shall be issued to the Law Offices of Xxxxxxx Xxxxxxxx, PLLC to pay the
reasonable costs Hargin , s attorney's fees. Said payment shall be made
within ten business days of the receipt of the third traunch in funding
from the funding group mentioned in the prior section.
2.3 Non-qualified Stock Options. Hargin shall receive two hundred thousand
(200,000) Non-qualified stock options (NQSO) with an exercise price of six
and one half cents ($.065). The option agreement and documents required to
exercise these options shall be forwarded immediately to Hargin upon
execution of this agreement.
2.4 Condition Precedent. Receipt of the funds specified in paragraphs 2.1 and
2.2 and receipt of the non-qualified stock options specified in paragraph
2.3 shall be a condition precedent to the effectiveness of the release
specified in paragraph 1.1 and to delivery of the dismissal with prejudice
specified in paragraph 1.2.
2.5 Press Release. Hargin authorizes that InsynQ may issue press releases
immediately upon the execution of this agreement and such press releases
shall substantially state the following:
"Xxxxxxx Xxxxxx is pleased to have this lawsuit settled. InsynQ, Inc.
has a great concept and wonderful service to provide to companies, and
I wish them well. "
3. UNANTICIPATED DAMAGE
3.1 There is a risk that subsequent to the execution of this agreement that
Insynq or Hargin, individually, jointly and/or severally, on behalf of
themselves, their predecessors, successors, heirs, beneficiaries and
assigns, will incur or suffer personal or bodily discomfort, financial
loss, property damage, tax liability, civil or criminal penalty, or any
other type of damage or any of these, which is in some way caused by the
facts set forth in the lawsuit referred to above, but which is unknown and
unanticipated at the time this Agreement is signed; and further, there is a
risk that the damages presently known may be, or may become, more serious
than the undersigned now expects or anticipates. The parties hereby assume
the above-mentioned risks and this Agreement shall apply to all unknown or
unanticipated results of the occurrence described above as well as those
known and anticipated.
4. ADVICE OF LEGAL COUNSEL
The advice of legal counsel has been obtained by all parties prior to
signing this Agreement. Counsel for each party to this agreement has played
an active role in drafting each term of this agreement. Accordingly, no
provision of this agreement shall be interpreted against any party on the
grounds that it was drafted by that party. BY SIGNING THIS AGREEMENT, EACH
PARTY HERETO ATTESTS THAT THIS AGREEMENT WAS ENTERED INTO FREE FROM ANY
DURESS AND/OR COERCION, BASED UPON EACH SIGNA TORY'S OWN WILL AFTER OBT
AINING ADVICE OF COUNSEL. If any provision of this Agreement is held to be
invalid or ineffective, such invalidity or ineffectiveness shall not affect
the remaining provisions or applications of this Agreement, which shall be
given full and complete effect without the invalid or ineffective
provisions hereof. To this end, the provisions of this Agreement are
severable.
5. HEADINGS
The headings of this Agreement are for purposes of reference only and shall
not limit or define the meaning of the provisions of this Agreement. Any
rule of law or legal decision that would require interpretation of any
ambiguities contained herein against the party that has drafted it is not
applicable and is waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the purpose of the parties and
this Agreement.
6. FURTHER DOCUMENTS.
Each of the parties hereto shall execute and deliver any and all additional
papers, documents, instructions and other instruments, including without
limitation the memorandum, and shall do any and all acts and things
reasonably necessary in connection with the performance of their
obligations hereunder and to carry out the intent of the parties hereto.
7. TAXES
Hargin is assuming the responsibility for all personal income and social
security taxes associated with the settlement of this claim and Hargin will
assume any liabilities indemnifying InsynQ for payment of all such taxes
that may become due under this settlement.
8. CONFIDENTIALITY
The parties and the parties' Counsel agree that the terns and contents of
this Agreement, and any information regarding the Agreement (other than the
fact of the settlement and its confidentiality) including the negotiation
hereof, shall be maintained as confidential, and shall not be disclosed
either directly or indirectly to any person, firm, association,
partnership, corporation or other entity except as directed to be disclosed
by law.
This release contains the ENTIRE AGREEMENT between the parties hereto, and
the terns of this release are contractual and not a mere recital.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first written above.
INSYNQ, INC.:
And Xcel Management, Inc.: (cb) (wgh)
/s/ M. Xxxxxxx Xxxxxx
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INSYNQ, INC., AUTHORIZED REPRESENTATIVE
M. Xxxxxxx Xxxxxx
PRINT NAME AND TITLE
Aug. 6, 2001
DATE
XXXXXXX X. XXXXXX:
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
7/26/01
DATE
