EXHIBIT 10.42
AGREEMENT
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STATE OF WASHINGTON (S)
(S) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF PIERCE (S)
WHEREAS, on September 16, 1998, Charles Benton sold 2,750,000 shares of
common stock in Insynq, Inc., a Washington corporation ("Insynq I") (the "Gorst
Shares") to John P. Gorst ("Gorst") in exchange for that certain Stock Purchase
Promissory Note in the original principal amount of $65,000, which note was made
due and payable on September 15, 2003 (the "Gorst Note"); and
WHEREAS, the Gorst Note was secured by the Gorst Shares as evidenced by
that certain Pledge of Shares agreement and that certain Assignment Separate
from Certificate, both of which were executed by Gorst on September 16, 1998
(collectively, the "Gorst Pledge"); and
WHEREAS, on February 18, 2000, Insynq I sold substantially all of its
assets to Xcel Management, Inc. ("Xcel"), a public company (the "Xcel
Transaction"); and
WHEREAS, on August 3, 2000, Xcel merged into its wholly owned
subsidiary, Insynq, Inc., a Delaware corporation (the "Subsidiary Merger"),
leaving Insynq, Inc., a Delaware corporation as the sole surviving entity
("Insynq II").
WHEREAS, prior to the Xcel Transaction, Mr. Benton agreed to accept and did
accept 65,000 shares of Insynq I common stock from Mr. Gorst (the "Gorst Release
Shares") as payment in full satisfaction of the Gorst Note; and
WHEREAS, 65,000 shares of Insynq II representing the Gorst Release Shares
have been issued to Mr. Benton; and
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WHEREAS, Mr. Benton has agreed as a result of the payment of the Gorst Note
to return to Gorst the originals of the Gorst Note, the Gorst Pledge, and the
certificate representing the Gorst Shares; and
WHEREAS, a suit has been filed by Kathleen McHenry against Gorst, Carroll
Benton, Insynq I and Insynq II (the "McHenry Suit") relating to shares of stock
in Insynq I previously owned by Patrick McHenry and now owned by Gorst (the
"McHenry Shares");
WHEREAS, Mr. and Mrs. Benton have agreed to accept an additional 150,000
shares of Insynq II shares from John Gorst (the "Gorst Additional Release
Shares") as consideration for giving Gorst a general release of any and all
alleged rights, claims, causes of action, duties and obligations arising in
whole or in part prior to the execution of this agreement, including, but not
limited to a release of any claim to any portion of the McHenry Shares either
may allege to have, the release of all obligations and duties owned to Mr. or
Mrs. Benton from Gorst relating to or arising out of the McHenry Suit, as well
as additional consideration for the agreements between Interactive Information
Systems Corporation, Mr. and Mrs. Benton and Insynq II as reflected in separate
Agreements executed by and between Interactive, Mr. and Mrs. Benton and Insynq
on September 22, 2000.
NOW THEREFORE, Mr. Benton, Mrs. Benton, and Gorst state as follows:
1. TRANSFER OF GORST SHARES
Gorst shall within five business days of the execution of this Agreement,
transfer to Mr. Benton and Mr. Benton shall at that time accept 150,000 shares
of Insynq II representing the Gorst Additional Release Shares. Gorst's timely
tender of the Gorst Additional Release Shares shall be sufficient to invoke the
releases contained herein regardless of the actual timing of the acceptance of
such shares by Mr. Benton. Mr. Benton acknowledges that he has previously
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received from Gorst 65,000 shares of Insynq II representing the Gorst Release
Shares. Mr. Benton acknowledges and agrees that he is taking all such shares
(the Gorst Release Shares and the Gorst Additional Release Shares), without a
view to distribution, that such shares are "restricted securities" which may not
be resold without registration or an exemption from the restrictions, and that
his shares will contain a legend referring to such restrictions.
2. RELEASE OF GORST.
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A. In exchange for the prior transfer of the Gorst Release Shares to Mr.
Benton and upon the tendering of the Gorst Additional Release Shares to Mr.
Benton, of which Mr. Benton will not withhold receipt, Mr. and Mrs. Benton and
each of their affiliates or entities owned or controlled by either hereby fully
and finally release, acquit and forever discharge, to the fullest extent
permitted by applicable law, Gorst and his representatives, successors and
assigns of and from any and all rights, claims, causes of action, duties and
obligations which may have arisen or accrued in whole or in part prior to the
execution of this Agreement, including, but not limited to those rights, claims,
causes of action, duties or obligations relating to or arising out of (1) the
Gorst Note, including, but not limited to any claim for further payment, the
Gorst Note having now been paid in full; (2) the McHenry Shares, including, but
not limited to any claim Mr. or Mrs. Benton may allege to have directly or
indirectly to any portion of the McHenry Shares; (3) any claim Mr. or Mrs.
Benton may alleged to have in or to any other shares now or previously owned or
held in any capacity by Gorst or any obligation by Gorst to issue or transfer
any additional shares of Insynq II to either of them for any reason, other than
the obligation by Gorst to transfer 150,000 shares to Mr. Benton as specifically
set forth specifically in 1. above; (4) Mr. Benton's claim that he executed a
waiver of his rights relating to a forward stock split of Insynq I's shares in
or about January, 2000 (in a ratio of approximately 1.4 to 1) under duress and
that
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he is therefore entitled to any additional shares, damages or other compensation
from Gorst as a result of his allegedly executing such waiver under duress; or
(5) any claim for attorneys' fees incurred by Mr. or Mrs. Benton relative to any
claim released herein. Furthermore, upon Gorst's and Insynq's settlement of the
McHenry lawsuit, and such settlement includes a release of any and all claims by
McHenry against Mrs. Benton, then Mr. and Mrs. Benton agree to fully and finally
release, acquit and forever discharge, to the fullest extent permitted by
applicable law, Gorst and his representatives, successors and assigns of and
from any and all rights, claims, causes of action, duties and obligations
relating to or arising out of the McHenry Suit, including, but not limited to
any duty to defend or indemnify Mr. or Mrs. Benton or to reimburse Mr. or Mrs.
McHenry for any costs, expenses or attorneys' fees incurred by either of them in
the McHenry Suit.
B. Mr. Benton shall return to Gorst, within five (5) business days of the
execution of this Agreement, the original Gorst Note, prominently marked as
"Paid In Full," and will otherwise return or destroy all copies of the Gorst
Note in his possession, custody or control. Mr. Benton shall also return to
Gorst, within five (5) business days of the execution of this Agreement, the
original Gorst Pledge and the original certificate of Insynq I representing the
Gorst Shares and shall otherwise return or destroy all copies of the Gorst
Pledge and the certificate representing the Gorst Shares.
3. GOVERNING LAW. The parties hereto agree that the validity, effect, and
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construction of this Agreement shall be governed by the laws of the State of
Washington, without regard to any conflict of laws provisions.
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4. OWNERSHIP OF CLAIMS. Each of the parties hereto represents and
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warrants to each of the other parties that: (i) they have not assigned,
transferred or abandoned any of the claims released herein, and (ii) they are
the sole owners of the claims released herein.
5. CONSIDERATION. Each of the parties hereto acknowledge, warrant, and
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agree that each have received adequate consideration for their execution of this
Agreement.
6. STRICT CONSTRUCTION. This Agreement shall not be strictly construed
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against any the parties hereto.
7. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original.
8. TITLES. Headings and Sections of this Agreement are inserted for
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convenience only and shall not affect the meaning or construction of any of the
terms of this Agreement.
9. NO DURESS / REPRESENTATION BY COUNSEL. Each of the parties hereto
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represent and warrant that they have entered into this Agreement voluntarily and
not by reasons of any fraud, duress, undue influence or mistake. Each of the
parties hereto further represent and warrant that they have been represented by
counsel of their own selection with respect to the negotiation of the terms of
this Agreement.
10. FURTHER INSTRUMENTS. The parties hereto agree they will each execute
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such other and further instruments and documents as may become necessary to
carry out the agreements set forth herein.
11. LEGAL CONSTRUCTION. If any one or more of the provisions contained in
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this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this
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Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
12. ACKNOWLEDGMENT. Each of the parties hereto acknowledge that each has
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read this Agreement and that each fully knows, understands, and appreciates this
Agreement and executes this Agreement voluntarily and of their own free will and
by executing this Agreement signifies their assent to and willingness to be
bound by its terms.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement on the date set forth below.
By: /s/ Charles F. Benton
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CHARLES BENTON
STATE OF WASHINGTON (S)
(S)
COUNTY OF PIERCE (S)
Before me, the undersigned authority, on this day personally appeared
Charles Benton, known to me to be the individual whose name is subscribed to the
foregoing instrument through a current identification card issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
Given under my hand and seal of office this 22nd day of September, 2000.
Susan J. Hudson
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Notary Public State of Washington
Susan J. Hudson
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Printed Name of Notary Public
My commission expires: 1-14-2002
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By: /s/ Carroll Benton
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CARROLL BENTON
STATE OF WASHINGTON (S)
(S)
COUNTY OF PIERCE (S)
Before me, the undersigned authority, on this day personally appeared
Carroll Benton, known to me to be the individual whose name is subscribed to the
foregoing instrument through a current identification card issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person, and acknowledged to me that she executed the same for
the purposes and consideration therein expressed.
Given under my hand and seal of office this 22nd day of September, 2000.
Susan J. Hudson
---------------------------------
Notary Public State of Washington
SUSAN J. HUDSON
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Printed Name of Notary Public
My commission expires: 1-14-2002
/s/ John P. Gorst
By:------------------------------
JOHN P. GORST
STATE OF WASHINGTON (S)
(S)
COUNTY OF PIERCE (S)
Before me, the undersigned authority, on this day personally appeared
John P. Gorst, known to me to be the individual whose name is subscribed to the
foregoing instrument through a current identification card issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
Given under my hand and seal of office this 22nd day of September, 2000.
Susan J. Hudson
---------------------------------
Notary Public State of Washington
SUSAN J. HUDSON
---------------------------------
Printed Name of Notary Public
My Commission Expires: 1-14-2002
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