EXHIBIT 10.29
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE (this "Agreement") is
made and entered into effective as of June 30, 1999 (the "Effective Date") by
and between TOTAL OUTSOURCING, INC., a California corporation ("TOI"), and
WIRELESS FACILITIES, INC., a Delaware corporation ("WFI"), with regard to the
following facts:
R E C I T A L S:
A. TOI has provided services and financing to WFI for the leasing of
computer equipment, apartments, vehicles and other items when WFI had limited
resources.
B. Now that WFI has substantial resources, the parties believe that their
contractual relationship is no longer a necessity and they would like to
document that their relationship has ceased, as of the Effective Date.
A G R E E M E N T
In consideration of the mutual releases mentioned herein, the parties
acknowledge and agree:
1. Obligations Under Agreements Canceled. Except for the agreements and
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covenants expressly provided in this Agreement (the "Covenants"), all
obligations of the parties existing under any express or implied agreements
between TOI and WFI existing prior to the Effective Date are hereby canceled and
all amounts owing under them are hereby deemed paid in full.
2. TOI's Agreements and Covenants. Each party hereby agrees and covenants
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to return all property of the other upon request, including, but not limited to,
all office and building keys, equipment, supplies and files, all copies of same
and any data relating to same. TOI agrees not to use or disclose any
information its personnel learned or learns about WFI or its officers,
directors, shareholders, agents or representatives.
3. WFI's Agreements And Covenants. WFI hereby agrees to provide TOI a
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check in the amount of Two Hundred Eighty Thousand Ninety-One Dollars ($280,091)
no later than December 31, 1999.
4. Mutual Release. TOI hereby releases and discharges WFI and all of
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WFI's agents, representatives, officers, directors, shareholders, attorneys and
accountants, and WFI
hereby releases and discharges TOI and all of TOI's agents, representatives,
officers, directors, shareholders, attorneys and accountants, from all debts,
claims, demands, liabilities, agreements and causes of action that the parties
ever had, now have, or may have, whether accrued or contingent, against each
other arising out of or relating to any and all agreements between them or their
relationship, except for the Covenants.
5. Compromise. This Agreement constitutes a compromise of claims between
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the parties.
6. Civil Code Section 1542. The parties declare that they have read and
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understand the following statutory language of Section 1542 of the California
Civil Code, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
debtor.
Nevertheless, the parties hereby assume the risk of all unknown claims
against the other as provided herein and agree that this Agreement extends to
all claims of every nature and kind whether or not arising out of or relating to
any matters generally or specifically described above, whether such claims are
known or unknown, suspected or unsuspected, except for the Covenants. All
rights under Section 1542 of the California Civil Code are hereby expressly
waived, except for the Covenants.
7. Sole Expression of Agreement. Each party acknowledges and represents
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that (a) any promise or representation not herein expressed is not being relied
upon in connection with this Agreement, and (b) this Agreement embodies all
terms and conditions concerning the release referred to herein and the
compromise and settlement of all direct or indirect obligations and disputes
between the parties, except for the Covenants. The recitals provided above are
hereby incorporated into this Agreement. This Agreement constitutes the final,
complete and exclusive agreement between the parties hereto pertaining to all
prior transactions and prior claims between them and supersedes any and all
prior and contemporaneous agreements or representations, except for the
Covenants.
8. No Further Waiver. No waiver of any provision of this Agreement shall
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be deemed, or shall constitute a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
9. Attorneys' Fees Upon Breach. If any legal action or other proceeding
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arises from or relates to this Agreement, or any agreement or document delivered
under it, or for a declaration of rights and duties hereunder, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
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connection with that action or proceeding, in addition to any other relief to
which the party may be entitled.
10. Governing Law and Venue. This Agreement is entered into in San Diego,
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California. This Agreement shall be interpreted and enforced under the internal
laws of the State of California. Any action or proceeding based upon, arising
out of or related to this Agreement may only be commenced or maintained in a
state court of appropriate jurisdiction located in San Diego, California.
11. Further Assurances. Each of the parties hereto shall do all acts and
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execute and deliver all documents necessary, convenient or desirable to carry
out all provisions of this Agreement. These shall include, but not be limited
to, the execution by TOI of all necessary transfers and assignments for all
equipment, vehicles, apartments or other items currently being leased by TOI to
WFI.
12. Construction. The initial draft of this Agreement was drafted by the
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law firm of Xxxxxxxx, Xxxx, Xxxxxxxxxx & Xxxxxxx LLP ("Xxxxxxxx"), which
represented WFI only in this transaction. Both parties acknowledge Xxxxxxxx'x
disclosure of its representation of TOI on other matters and waive any claims
they may have concerning actual or potential conflicts of interest. Xxxxxxxx and
WFI have strongly urged TOI to retain separate independent legal counsel. Each
party has had the opportunity to consult independent counsel and either has done
so or has decided not to do so. This Agreement shall not be construed against
the party or its representative who drafted this Agreement or any portion
hereof. This Agreement shall be construed so that time is of the essence for
each of its provisions.
13. Binding Effect. No claims have been assigned by any party prior to
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signing this Agreement. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, personal representatives, officers,
directors, attorneys, agents, successors and assigns. This Agreement may not be
modified except by a written agreement signed by the parties signing this
Agreement or their heirs, personal representatives, successors and assigns.
[Agreement Continues]
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14. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which together shall constitute one (1) original agreement.
Faxed signatures shall be equivalent to original signatures.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
TOTAL OUTSOURCING, INC., WIRELESS FACILITIES, INC.,
a California corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxx
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Title: President Title: CFO
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