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EXHIBIT 10.29
AGREEMENT
This Agreement, dated as of October 2, 1999 is made by and between
Focus Affiliates, Inc., which was formerly known as Intellicell Corp. ("Focus"),
Cellular Specialists ("CS") and Xxx Xxxxx with reference to the following facts:
A. Focus has sold merchandise to Cellular Specialists ("CS") for which
Focus asserts that there is an unpaid balance owing to Focus of $109,320 (the
"CS Unpaid Balance") and that CS is delinquent in paying the CS Unpaid Balance.
B. On October 31, 1996, Focus granted Xxx Xxxxx an option to purchase
35,000 shares of Focus common stock at $5.00 per share (the "Xxx Xxxxx Options")
pursuant to a Non-Qualified Stock Option Agreement dated as of October 31, 1996,
and none of the Xxx Xxxxx Options have been exercised to date.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties to this Agreement hereby agree as follows:
1. Discharge of CS Unpaid Balance. CS and Xxx Xxxxx shall have no
obligation to pay any amounts to Focus for the CS Unpaid Balance, which will be
assigned in full to Xxx Xxxxx pursuant to this Agreement. Xxx Xxxxx and CS
hereby release and discharge Focus and its officers, directors, shareholders,
attorneys and other representatives from and against any claims or damages that
they may have in connection with their purchase of merchandise from or sale of
merchandise to Intellicell.
2. Stock Options. Xxx Xxxxx and Focus hereby acknowledge and agree that
the Xxx Xxxxx Options are being cancelled.
3. Representations and Warranties.
(a) Independent Legal Advice. Each party to this Agreement
represents, warrants and agrees that he or it has received independent legal
advice from his or its attorneys with respect to the advisability of executing
this Agreement.
(b) No Other Representation. Each party to this Agreement
represents, warrants and agrees that, in executing this Agreement, he or it has
relied solely on the statements expressly set forth within this Agreement. Each
party to this Agreement further represents, warrants and agrees that, in
executing this Agreement, he or it has placed no reliance whatsoever on any
statement, representation or promise of any other party, or any other person or
entity, that is not expressly set forth within this Agreement, or upon the
failure of any other party, or any other person or entity, to make any
statement, representation or disclosure of anything whatsoever.
(c) Authority. Each party to this Agreement represents, warrants and
agrees that he or it has the full right, power and authority to execute this
Agreement and that the person
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executing this Agreement on his or its behalf has the full right, power and
authority to commit and to bind that party fully to the terms of this Agreement.
4. General.
(a) California Law Governs. This Agreement shall be constructed and
enforced in accordance with, and governed by, the internal, substantive laws of
the State of California. Any lawsuits filed to enforce any provisions of this
Agreement by any party hereto shall be filed in the Superior Court for the State
of California, County of Los Angeles.
(b) Litigation Fees. The prevailing party in any litigation with
respect to this Agreement will be entitled to recover his or its reasonable
attorneys fees and costs.
(c) No Presumption From Drafting. This Agreement has been negotiated
at arm's length between persons knowledgeable in the matters set forth within
this Agreement. Accordingly, given that all parties have had the opportunity to
draft, review and or edit the language of this Agreement, no presumption for or
against any party arising out of drafting all or any part of this Agreement will
be applied in any action relating to, connected with or involving this
Agreement. In particular, any rule of law, including, but not limited to,
Section 1654 of the California Civil Code Section, or any other statutes, legal
decisions, or common law principles of similar effect, that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it, is of no application and is hereby expressly waived. The provisions
of this Agreement shall be interpreted in a reasonable manner to effect the
intentions of the parties.
IN WITNESS WHEREOF, the parties to this Agreement have approved and
executed this Agreement as of the date set forth above.
FOCUS AFFILIATES, INC.
By: /s/ Xxxxx Xxxx
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Its: Chief Financial Officer
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CELLULAR SPECIALISTS
By: /s/ Xxx Xxxxx
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Its: CEO, PRS
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/s/ Xxx Xxxxx
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Xxx Xxxxx
