SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (this "Agreement") is entered into
this 8th day of April, 2004, by and among NANNACO, Inc., a Texas corporation
("NNCO"), James J. Taylor, C.P.A., a certified public accounting firm doing
business in the state of Texas, and James J. Taylor, individually ("Taylor").
NNCO and Taylor shall be referred to collectively herein as the "Parties."
WITNESSETH:
WHEREAS, Taylor provided certain accounting services to NNCO from
approximately December 31, 1998 through January 18, 2003 (the "Services"), for
which Taylor alleges he is owed approximately Seventy Two Thousand Nine Hundred
Ninety Nine Dollars and Twenty Two Cents ($72,999.22), a copy of the invoice of
James J. Taylor, C.P.A. sent to NNCO being attached hereto as Exhibit A (the
"Debt").
WHEREAS, NNCO and Taylor desire to amicably settle, compromise and resolve
any and all controversies and claims between themselves including, but not
limited to, all controversies and claims with respect to and arising out of the
Services and the Debt, to avoid the burden and expense of arbitration and/or
litigation.
WHEREAS, in connection with the resolution of such matters, Taylor shall
provide NNCO with a full release and settlement in accordance with the terms
hereinafter set forth.
NOW, THEREFORE, it is the desire of the Parties to state in writing the
details of their agreements. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed as follows:
1. Settlement of Claims against and Release of NNCO. In exchange for
NNCO's agreeing to engage Taylor as a consultant to NNCO (the "Consulting
Engagement"), which Consulting Engagement1 shall be executed by Taylor and NNCO
after receipt by NNCO of this fully executed Agreement, Taylor, on behalf of
himself, his employees, affiliates and assigns, hereby fully, forever,
irrevocably and unconditionally settles, releases, remises and discharges NNCO
and each of its former, current and future officers, directors, stockholders,
attorneys, agents, spouses, administrators, employees and all persons acting by,
through, under, or in concert with them from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature, known or
unknown, which Taylor ever had or now has against NNCO, including, but not
limited to, all claims arising out of the Services and the Debt, all common law
claims including, but not limited to, actions in tort, defamation, breach of
contract, and any claims under federal, state or local statutes or ordinances
not expressly referred to above.
1 The Consulting Services Agreement being attached hereto as Exhibit B.
2. Representations and Warranties of the Parties.
2.1 Authority. Each of the Parties has full power and authority to
enter into this Agreement. All action on the part of each of the Parties
necessary for the authorization, execution and delivery of this Agreement, the
performance of all obligations of each of the Parties hereunder has been taken,
and each of the Parties has all requisite power and authority to enter into this
Agreement.
2.2 Consents and Approvals; No Conflict. The execution and delivery of
this Agreement by each of the Parties does not, and the performance of this
Agreement by the Parties will not, require any consent, approval, authorization
or other action by, or filing with or notification to, any governmental or
regulatory authority. The execution, delivery and performance of this Agreement
by the Parties does not (i) conflict with or violate the charter or by-laws,
partnership or other governing documents of any of the Parties, or (ii) conflict
with or violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination, contract or award applicable to any of the Parties.
2.3 Effectiveness of Representations and Warranties. Each of the
Parties' representations and warranties contained in this Agreement are true and
correct.
3. Miscellaneous Provisions.
3.1 This Agreement constitutes the complete and exclusive agreement of
the Parties relating to the settlement and release of NNCO.
3.2 The Parties understand that this Agreement constitutes a compromise
and settlement of disputed claims. No action taken by the Parties hereto, or any
of them, either previously or in connection with this Agreement shall be deemed
to be (a) an admission of the truth or falsity of any claims heretofore made or
(b) an acknowledgement or admission by either party of any fault or liability
whatsoever to the other Party or to any third party.
3.3 Each of the Parties declares and represents that no promise,
inducement or agreement which is not specifically provided in this Agreement has
been made by any Party to this Agreement; that this Agreement contains the
entire agreement among the Parties; and that the terms of this Agreement cannot
be modified except in writing signed by all Parties hereto.
3.4 Each of the Parties agrees not to disclose to or discuss with any
person, except as where such disclosure may be required by law, court order,
government agency request or subpoena, or in connection with a legal proceeding,
the substance of this Agreement or matters relating to any act or omission of
any Party in connection with any other Party.
3.5 This Agreement shall be construed, interpreted and applied in
accordance with the substantive laws of the State of Washington, without
reference to its choice of law rules.
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3.6 Any dispute between the Parties pertaining to this Agreement shall
be resolved through binding arbitration conducted by the American Arbitration
Association. The Parties agree that any arbitration proceeding shall be
conducted in Seattle, Washington, and consent to exclusive jurisdiction and
venue there. The award of the arbitrator(s) shall be final and binding, and the
Parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each Party retains the right to seek judicial
assistance (a) to compel arbitration, (b) to obtain injunctive relief and
interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
3.7 No party may assign any of its rights under this Agreement without
the prior consent of the other party, which shall not be unreasonably withheld.
Subject to the preceding sentence, this Agreement shall apply to, be binding in
all respects upon, and inure to the benefit of the successors and permitted
assigns of the Parties. Nothing expressed or referred to in this Agreement shall
be construed to give any person other than the Parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the Parties
to this Agreement and their successors and assigns.
3.8 All notices, demands and communications hereunder shall be in
writing and personally delivered or sent by first class mail, certified or
registered, postage prepaid, return receipt requested, addressed to the parties
at the addresses below set forth, or at such other address as any Party shall
have furnished to the other party in writing, or shall be given by telegram,
telex, facsimile transmission, overnight courier or hand delivery, in any case
to be effective when received, provided that actual receipt shall constitute
notice regardless of method of delivery.
If to NNCO: Steve Careaga
Chief Executive Officer
NANNACO, Inc.
7235 North Creek Loop
Gig Harbor, WA 98335
With a copy to: David M. Otto
The Otto Law Group, PLLC
900 Fourth Ave., Suite 3140
Seattle, WA 98164
If to Taylor: James J. Taylor
Certified Public Accountant
555 IH 35 South, Suite 312
New Braunfels, TX 78130
3.9 If any term or provision of this Agreement or any application
thereof shall be invalid or unenforceable, such term or provision shall be
deemed to be severed and the remainder of this Agreement and any other
application of such term or provision shall not be affected or invalidated
thereby.
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3.10 This Agreement may be executed by facsimile and in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
NANNACO, INC.
________________________________
Name: Steve Careaga
Title: Chief Executive Officer
JAMES J. TAYLOR, C.P.A.
________________________________
Name: James J. Taylor
Title: Owner/Principal
________________________________
Name: James J. Taylor - Individually
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Exhibit A
INVOICE FOR NANNACO, INC.
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Exhibit B
CONSULTING SERVICES AGREEMENT