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EXHIBIT 2.3
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
THIS AGREEMENT is made and entered into as of the 16th day of August,
2000, by and between Telect, Inc., ("Telect") and Xxxxxx & Xxxxx Corporation and
Xxxxxx and Xxxxx International, Inc. (collectively "T&B").
RECITALS
WHEREAS, the parties hereto are parties to a certain Asset Purchase
Agreement dated as of March 6, 2000 (the "Purchase Agreement"), whereby Telect
purchased certain assets from T&B, including the inventory identified in Exhibit
A hereto (the "NTI related inventory");
WHEREAS, certain disputes have arisen between the parties concerning
the value of the NTI related inventory included in the purchase;
WHEREAS, the parties desire to compromise the disputes regarding the
NTI inventory upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual promises made herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. The NTI related inventory will be shown as having no value on the
Closing Date Pro Forma Asset Value List.
2. T&B does not want Telect to ship the NTI related inventory back to
T&B. Instead, T&B has requested that Telect destroy all of the NTI related
inventory and then provide it with a written certification that the destruction
has occurred.
3. Within thirty (30) days of the date of this Agreement and at no
expense to T&B, Telect shall destroy, or shall cause to be destroyed, all NTI
related inventory, including without limitation, all NTI finished goods and each
and every component part thereof, acquired by Telect from T&B. Upon the
destruction of the NTI related inventory and all component parts thereof, Telect
shall certify such destruction in writing to T&B, and notify T&B of the amount
of any salvage payments received in connection with the destruction of the NTI
related inventory. Provided, however, Telect shall have no obligation to try and
obtain any salvage payments
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE - 1
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4. Telect agrees that it shall not sell any finished good or component
part of the NTI related inventory, nor shall Telect incorporate any component
part from the NTI related inventory into any of its products or otherwise use
any such component parts in any manner.
5. Upon the receipt of written certification from Telect of the
destruction of the NTI related inventory and all component parts thereof, T&B
shall comply with Section 2(f) of the Purchase Agreement and credit in favor of
Telect the amount of $1,497,070.00, less any salvage value received by Telect,
to be reflected as a post-closing adjustment of the purchase price paid by
Telect under the Purchase Agreement.
6. Any payments received for the salvage value of the NTI related
inventory, if any, shall be the sole property of Telect.
7. Telect acknowledges that its failure to destroy all NTI related
inventory in Telect's possession and to refrain from the sale and/or use of the
NTI related inventory and component parts as certified herein will result in
irreparable harm to T&B, the amount of which will be difficult to ascertain and
for which there is no adequate remedy at law; and, therefore, agrees that, in
the event that Telect fails to perform the matters undertaken by Telect in this
Agreement and in addition to all other remedies available at law and in equity,
T&B shall have the right to immediate injunctive relief enjoining or restraining
Telect from selling or using any NTI related inventory and/or component parts
and compelling the destruction of all NTI related inventory.
8. Upon the performance of this Agreement by the parties, the parties
agree to release, indemnify and hold one another harmless from any and all
claims, demands, and causes of action arising out of or related to the value of
the NTI related inventory. The parties agree that this release shall apply only
to claims, demands and causes of action that arise out of or relate to the value
of the NTI related inventory, and expressly reserve all other possible claims,
demands and causes of action that may arise out of the Purchase Agreement and
the relationship between the parties.
9. This Agreement embodies the entire understanding between the parties
concerning the NTI related inventory, and supersedes and cancels all prior or
contemporaneous agreements or understandings, written or oral, with respect to
such subject matter. This agreement may not be amended or modified except by
further written agreement between the parties.
10. This Agreement shall be interpreted and enforced under the laws of
the State of Washington without regard for principles of conflicts of law.
11. In the event that any provision of this Agreement is determined by
a court of competent jurisdiction to be illegal, void, or unenforceable, the
parties will deem such provision to be modified to the extent necessary to allow
it to be enforced to the extent allowed by law, or if it cannot be modified, the
provision shall be severed and deleted from the Agreement, and the remainder of
the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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MUTUAL RELEASE - 2
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TELECT, INC. XXXXXX & XXXXX CORPORATION
By:__________________________ By:____________________________
Name: _______________________ Name: _________________________
Title:_________________________ Title:_________________________
XXXXXX & XXXXX INTERNATIONAL, INC.
By:___________________________
Name: ________________________
Title:________________________
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MUTUAL RELEASE - 3
