EXHIBIT 10.15
SETTLEMENT AGREEMENT AND MUTUAL AND GENERAL RELEASE
This Settlement Agreement and Mutual and General Release (the "Settle-
ment greement") is made and entered into as of the 25th day of January
, 2001, by and between Worldwide Wireless Networks, Inc., a corporation
organized and existing under the laws of the State of Nevada (the
"Company") and Sinclair Davis Trading Corporation., a corporation
organized and existing under the laws of the State of New York ("SD
Corporation"), directly and for and on behalf of their respective
predecessors, agents, servants, employees, owners, shareholders,
officers, directors, partners, associates, attorneys, representaives,
successors, assigns, heirs, spouses, former spouses, domestic or other
partners, agencies, firms, brokers, appraisers, associations, partner-
ships, sole proprietorships and corporations, and each and all of them
, as appropriate in context, and is based upon the following Recitals.
The Company and SD Corporation are sometimes referred to collectively
herein as the "Parties".
R E C I T A L S
A. The Parties previously have entered into that certain S.D.
Trading Corp. Agreement by and between SD Corporation and the Company
(the "Agreement") dated November 29, 2000.
B. The Parties have now rescinded that Agreement due to various
mistakes of fact and other issues which have arisen with respect to
the Agreement.
C. The Parties now desire to settle and resolve these matters
between one another on the terms and conditions set forth in this
Settlement Agreement, to release each other from any liability
therefor and to establish the framework for moving forward with a
new, mutually acceptable agreement between the Parties.
NOW, THEREFORE, in consideration of the terms, conditions and
covenants contained herein, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound,
agree as follows:
A G R E E M E N T
1. Nature of Settlement Agreement. This Settlement Agreement
constitutes a fully-executed settlement instrument, accord and
satisfaction, and a general, specific and mutual release of all
claims by each of the Parties against the others arising from any
disputes, claims, controversies, and allegations of whatever nature,
whether or not expressly referred to in the Recitals, arising out of
or resulting from the Agreement and its subsequent rescissions.
2. Terms of Settlement Agreement and Release.
2.1 Ratification of Rescission. Upon execution of this Settlement
Agreement, the Parties hereby ratify and confirm their prior rescission
of the Agreement, and that all provisions, rights, and obligations
stated therein have been unwound, revoked and are of no further force
or effect.
2.2 Consideration. As consideration for the release of all
matters in dispute or potentially in dispute between the Parties, and
in exchange for the release of all claims or potential claims between
them, whether or not capable of being asserted in any legal proceeding,
upon the execution of this Settlement Agreement by the Parties, the
Company shall:
(a) issue to SD Corporation a stock certificate evidencing SD
Corporation's ownership of two hundred twelve thousand five hundred
(212,500) shares of the restricted common stock of the Company (the
"Settlement Shares");
(b) file a registration statement to register the Settlement
Shares within thirty (30) days of the date of this Agreement (the
"Effective Date");
(c) in the event that the Company does not file the registration
statement to register the Settlement Shares within thirty (30) days
after the Effective Date, the Company shall issue, as a premium and
without further consideration paid by SD Corporation, an additional
twenty thousand (20,000) shares of restricted Common Stock on the
31st day after the Effective Date to SD Corporation (upon the request
of SD Corporation, the premium shares can be deposited into a third-
party escrow, on terms which are mutually-acceptable to both parties,
to ensure their delivery to SD Corporation should the conditions
therefor be met);
(d) in the event that the Company does not file the registration
statement to register the Settlement Shares within forty (40) days
after the Effective Date, the Company shall issue, as a premium and
without further consideration paid by SD Corporation, an additional
thirty thousand (30,000) shares of restricted Common Stock on the
41st day after the Effective Date to SD Corporation, bringing the
total amount of premium shares issued to SD Corporation pursuant to
Clauses (c) and (d) of this Section 2.1 to Fifty Thousand (50,000)
Premium Shares.
2.3 Representations and Warranties.
(a) Each Party hereby represents and warrants to each other that
such Party has not assigned, conveyed or transferred, or purported
to assign, convey or transfer to any person, firm or corporation,
either voluntarily or involuntarily, any claim, cause of action, or
right based on, or arising out of, or in connection with any matter,
fact or issue related to the Agreement. To the extent any Party has
assigned or transferred any claim, cause of action, or right based
on or arising out of these matters, whether voluntarily or involun-
tarily, or otherwise breached this warranty, said Party agrees to
defend, indemnify and hold harmless each and all other Parties and
their predecessors, successors, assigns, representatives, trustees,
directors, officers, spouses, former spouses, domestic and other
partners, agencies, shareholders, beneficiaries, agents, employees,
receivers, attorneys, and each of them, from and against any claim,
demand, debt, liability, account, obligation, cost, damage expense,
lien, action or cause of action (including payment of legal fees
and costs) based on or arising out of, or in connection with, any
such transfer, conveyance or assignment, or the purported or claimed
transfer, conveyance or assignment; and
(b) each Party hereby further represents and warrants to the
other Parties, as applicable, the following:
(i) each Party is an entity organized and existing in good
standing under the laws of the jurisdiction set forth in the
Preamble to this Settlement Agreement;
(ii) each person signing this Settlement Agreement on behalf of
a Party has the full power and authority to execute and deliver such
Settlement Agreement on behalf of such Party, which Settlement
Agreement, once so executed and delivered, shall be the legal and
binding obligation of such Party, enforceable against such Party by
any court of competent jurisdiction in accordance with their
respective terms; and
(iii) no Party is a party to any contract, arrangement, undertaking,
understanding, order, judgment, decree, law or statute which would
restrict or limit such Party's ability to perform under the Settlement
Agreement in accordance with its terms.
(c) The Parties each hereby agree that they shall be responsible
for, and shall hold harmless and indemnify the other Party from and
against, any obligation, liability, loss, cost, charge, damage or
expense (including, but not limited to, reasonable attorneys' fees
in defense thereof) of whatever type or nature to the extent any
such obligation, liability, loss, cost, charge, damage or expense
is the direct result from, or arises out of, such Party's breach of
any material representation, warranty, covenant or agreement contained
in this Settlement Agreement.
2.4 Release of All Claims. In consideration for this Settlement
Agreement and the terms recited herein, the Parties hereby release and
discharge each other and their respective predecessors, agents,
servants, employees, owners, shareholders, officers, directors,
partners, associates, attorneys, representatives, successors, assigns,
heirs, spouses, former spouses, domestic or other partners, agencies,
firms, brokers, appraisers, associations, partnerships, sole proprietor-
ships and corporations, and each and all of them, of and from any and
all obligations, liability, guarantees, actions, causes of action,
damages, judgments, executions, debts, costs, expenses, attorney fees,
taxes, liens, notes, securities, stocks, bonds, investments, claims,
and demands whatsoever under the laws of the State of California, and
of any other state of the United States and/or the United States of
America and the laws of any other nation, country, territory or juris-
diction, for, from, upon, under, on account of, growing or arising out
of, or related to any and all acts, claims, factual circumstances,
transactions, and occurrences referenced in the Recitals including,
but not limited to, any and all obligations, contracts, liabilities,
compensation (regular, overtime or benefits) due, guarantees, actions,
causes of action and claims for relief arising by statute, common law
or otherwise, judgments, indemnification agreements, hold harmless
agreements, executions, debts, costs, expenses, attorney fees, damages,
taxes, liens, notes, securities, stocks, bonds, investments, claims,
charges and losses, of any kind, nature and character, now existing,
known or unknown, or later becoming known, accrued or later accruing,
resulting directly or indirectly, proximately or remotely, from any
and all of the matters and things arising prior to, and subsequent to,
the date this Settlement Agreement is executed (except as to all
obligations arising under this Settlement Agreement). This release
specifically applies to any and all claims and/or issues relating in
any way to the Parties' dialogues, interests in or to any other aspect
of the Company (except as to all performance obligations arising under
this Settlement Agreement). The Parties acknowledge a full compromise
and settlement, accord and complete satisfaction thereof. The Parties
acknowledge that they may later discover facts different from or in
addition to those they now know or believe to be true with respect to
the claims, demands, causes of action, obligations, damages, and
liabilities of any nature that are the subject of this Settlement
Agreement and release. The Parties expressly agree that this Settlement
Agreement and release shall be and remain effective in all respects
regardless of such additional or different facts.
2.5 Section 1542 Waiver. It is further understood and agreed that
the Parties specifically and expressly waive any and all rights under
Section 1542 of the California Civil Code, or any analogous federal,
state or municipal law, rule, regulation or ordinance. Section 1542
provides as follows:
[Certain Claims Not Affected By General Release.]
"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 effected his
settlement with the debtor."
2.6 Attorney's Fees and Costs. The Parties agree that each will
bear their own costs and attorneys' fees incurred in connection with
all matters resolved by this Settlement Agreement, except as otherwise
may be expressly provided in this Settlement Agreement.
3. Good Faith Motion. The Parties agree to support any motion
for a determination of good faith settlement initiated by any Party
hereto with respect to any pending or future litigation and, further,
to provide counsel for the moving party any declarations under penalty
of perjury or affidavits necessary or reasonably requested in support
thereof.
4. Remedies in the Event of a Breach. In the event of a breach
of this Settlement Agreement, all legal and equitable remedies may be
employed to enforce the terms herein, including, but not limited to,
temporary restraining orders and preliminary injunctions, the support
for which will be based on this Settlement Agreement and declarations
or other prima facie proof of a violation of the terms. In the event
of a violation of this Settlement Agreement, or any terms herein, the
prevailing Party will be entitled to recover from the losing party the
prevailing Party's reasonable attorney's fees and costs.
5. Successors. This Settlement Agreement is binding upon and
shall inure to the benefit of the Parties and each party's respective
successors, predecessors, assigns, heirs, spouses, principals, agents
and personal representatives.
6. Interpretation. The Parties acknowledge and agree that they
have been given the opportunity to independently review this Settlement
Agreement with legal counsel prior to acceptance and agreement to the
particular language and provisions. In the event of an ambiguity in,
or dispute regarding the interpretation of same, the interpretation of
this Settlement Agreement shall not be resolved by any rule of inter-
pretation providing for interpretation against the party who causes the
uncertainty to exist or against the drafts.
7. Entire Agreement. This Settlement Agreement contains the sole
and entire agreement and understanding of the Parties with respect to
the entire subject matter, and any and all prior discussions, negotia-
tions, commitments and understandings related hereto are merged herein.
No representations, oral or otherwise, express or implied other than
those contained in this Settlement Agreement have been made by any
Party. No other agreements not specifically referred to herein, oral
or otherwise, shall be deemed to exist or to bind any of the Parties
hereto.
8. Terms Mutually Independent. Each provision of this Settlement
Agreement is independent of each other provision, except that this
Settlement Agreement shall only be effective upon full performance as
to the recited consideration and the extension of the full, complete,
mutual, general and specific releases. Except for the mutual releases,
in the event any provision is deemed invalid under applicable law,
such term shall be severed from this Settlement Agreement and not
otherwise affect the remaining terms.
9. Waiver, Modification and Amendment. No provisions of this
Settlement Agreement may be waived unless in writing and signed by
all Parties. Waiver of any one provision shall not be deemed to be
a waiver of any other provision. This Settlement Agreement may be
modified or amended only by a later writing signed by all of the
Parties.
10. Governing Law; Venue. This Settlement Agreement shall be
governed by and construed in accordance with the internal laws of the
State of California applicable to the performance and enforcement of
contracts made within such state, without giving effect to the law of
conflicts of laws applied thereby. In the event that any dispute shall
occur between the parties arising out of or resulting from the
construction, interpretation, enforcement or any other aspect of this
Settlement Agreement, the parties hereby agree to accept the exclusive
jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. In the event either party shall be forced
to bring any legal action to protect or defend its rights hereunder,
then the prevailing party in such proceeding shall be entitled to
reimbursement from the non-prevailing party of all fees, costs and
other expenses (including, without limitation, the reasonable expenses
of its attorneys) in bringing or defending against such action.
11. Specific Performance; Remedies Cumulative. The Parties hereby
agree with each other that, in the event of any breach of this Settle-
ment Agreement by any party where such breach may cause irreparable
harm to any other Party, or where monetary damages may not be
sufficient or may not be adequately quantified, then the affected Party
or parties shall be entitled to specific performance, injunctive relief
or such other equitable remedies as may be available to it, which
remedies shall be cumulative and non-exclusive, and in addition to such
other remedies as such party may otherwise have at law or in equity.
12. Titles and Captions. Paragraph titles and captions contained
in this Settlement Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or
describe the scope of this Settlement Agreement or the intent of any
provision.
13. Counterpart Signature Pages. This Settlement Agreement may be
executed by the Parties (and signed off on as having been reviewed and
approved as to form by counsel of record) through counterpart signature
pages (and not as part of one document bearing all signatures
consecutively), all of which, when taken together, shall constitute
satisfaction of the signature requirements.
14. Notices. All notices required under this Settlement Agreement
shall be deemed effective if served by telecopier or, in the option of
the sender, by Federal Express or other overnight delivery system (in
which case service will be deemed effective on in-hand receipt), and
shall be forwarded to the Parties as follows:
(a) If to the Company, to Mr. Jerry Collazo, 770 The City
Drive South, Suite 3700, Orange, California, 92868; T: (714) 937-5500;
F: (714) 937-6310.
(b) If to Sinclair Davis Trading Corporation, to
Brooke Bray, 108 Harbor Rd, Head of the Harbor, New York, 11780
Should addresses, facsimile numbers or other identified information
change, notice shall be given in accordance with this provision.
15. Authority. The undersigned individuals and/or entities execute
this Settlement Agreement on behalf of their respective parties, and
represent and warrant that said individual and/or entities are authorized
to enter into and execute this Settlement Agreement on behalf of such
Parties, that the appropriate corporate resolutions or other consents
have been passed and/or obtained (if necessary), and that this Settlement
Agreement shall be binding on the party on whose benefit they are
executing this Settlement Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement as of the date and year first above written.
WORLDWIDE WIRELESS
NETWORKS, INC. ATTEST:
By: /s/ Jerry Collazo By: /s/
------------- ----------
Jerry Collazo
President Secretary
SINCLAIR DAVIS TRADING CORPORATION, INC. ATTEST:
By: /s/ Brooke Bray By: /s/
----------- ----------
Brooke Bray
President Secretary
Dated: January 26, 2001
ITEM 28: UNDERTAKINGS
The undersigned registrant will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by section (10)(a)(3)
of the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in the
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement.
(iii) Include any additional or changed material information
on the plan of distribution.
(1) For determining liability under the Securities Act,
treat each post-effective amendment as a new registration statement
of the securities offered, and the offering of the securities at
that time to be the initial bona fide offering.
(2) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(3) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of Worldwide Wireless pursuant to the above
mentioned provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission this
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
(4) In the event that a claim for indemnification against
these liabilities (other than the payment by us of expenses incurred
or paid by a director, officer or controlling person of Worldwide
Wireless in the successful defense of any action, suit or proceeding)
is asserted by a director, officer or controlling person in connection
with the securities being registered, we will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
this indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of this issue.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form SB-2 and
authorized this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Orange, State of California, on February 7, 2001.
Worldwide Wireless Networks, Inc.
(Registrant)
By: ________/s/_________________________
Jerry Collazo, Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons
in the capacities and on the dates stated.
Signature
Title
Date
_______/s/______________
Jerry Collazo
Chief Executive Officer
March 13, 2001
_______/s/______________
Jerry Collazo
Chief Financial Officer and
Principal Accounting Officer
March 13, 2001