EXHIBIT 10.3
SETTLEMENT AND RELEASE
THIS SETTLEMENT AND RELEASE ("Release") is entered into as of the 11th day of
March, 2003 between Arris Interactive L.L.C. ("Arris") and Nortel Networks Inc.
("Nortel Networks").
WHEREAS, Nortel Networks and Arris are parties to a Sales Representation
Agreement dated as of August 3, 2001 (the "Agreement");
AND WHEREAS, the parties wish to settle a dispute that arose in connection with
the Agreement and certain other matters;
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged by all of the parties, the parties hereto hereby
agree as follows:
1. Nortel Networks and Arris agree that the amount owed by Arris to Nortel
Networks under the Agreement is $10,800,000.
2. It is further agreed that there shall be no further Sales Commission
(as defined in the Agreement) due under the Agreement, and that the
Agreement is terminated effective as of the date of this Release.
3. Nortel Networks and Arris agree that the net amount owed by Nortel
Networks to Arris in connection with products sold in Japan by a Nortel
Networks affiliate is $1,256,000 (the "Japan Payable").
4. It is agreed that the amount owed by Nortel Networks to Arris will be
deducted from the amount owed by Arris to Nortel Networks so that only
the net amount of $9,544,000 (the "Net Settlement Amount") will be
paid.
5. Arris shall pay the Net Settlement Amount by wire transfer in
immediately available funds to a bank account designated by Nortel
Networks so that Nortel Networks receives such amount as soon as
practicable but in no event later than the close of the business day
following the date of Arris Group, Inc.'s receipt of funds in
connection with the closing of the "Note Offering" (as that term is
defined in the letter agreement by and among Nortel Networks, Arris,
and Arris Group, Inc. of even date herewith).
6. Arris together with its affiliates, and their directors, officers,
employees, successors, assigns and agents hereby releases and forever
discharges Nortel Networks together with its affiliates, and their
directors, officers, employees, successors, assigns and agents from any
and all claims, demands, debts, causes of actions, suits, express or
implied warranties, covenants, contracts, agreements or promises
whatsoever, arising prior to the date hereof, that Arris or its
affiliates, or their directors, officers,
employees, successors, assigns or agents ever had, now have or may
hereafter have against Nortel Networks or its affiliates, or their
directors, officers, employees, successors, assigns or agents, by
reason of any matter or thing arising out of or in connection with the
Agreement or the Japan Payable.
7. Nortel Networks together with its affiliates, and their directors,
officers, employees, successors, assigns and agents hereby releases and
forever discharges Arris together with its affiliates, and their
directors, officers, employees, successors, assigns and agents from any
and all claims, demands, debts, causes of actions, suits, express or
implied warranties, covenants, contracts, agreements or promises
whatsoever, arising prior to the date hereof, that Nortel Networks or
its affiliates, or their directors, officers, employees, successors,
assigns or agents ever had, now have or may hereafter have against
Arris or its affiliates, or their directors, officers, employees,
successors, assigns or agents, by reason of any matter or thing arising
out of or in connection with the Agreement or the Japan Payable.
8. Nortel Networks and Arris specifically agree that the foregoing
releases shall not in any way affect their respective obligations and
duties contained in this Release. As such, Nortel Networks and Arris
specifically retain and preserve any claims arising out of a breach of
this Release. It is understood that the terms of this Release do not
apply to any matter between the parties other than as specifically
provided herein, and for greater certainty, this Release is not
intended to relieve either party of any obligations assumed under the
Assignment and Sale Agreement made between the parties as of August 3,
2001.
9. This Release shall be void ab initio, the releases granted herein shall
be of no effect, and no payments shall be required to be made
hereunder, in the event that the "Option"(as that term is defined in
the Option Agreement by and among Nortel Networks, Arris, and Arris
Group, Inc. dated as of June 7, 2002) is not exercised in full
immediately following the closing of the Note Offering.
10. This Release shall inure to and bind the parties hereto, their
respective heirs, legal representatives, successors, assigns and anyone
claiming by, through or under said parties.
11. This Release may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but such
counterparts shall together constitute one and the same instrument.
12. This Release comprises the entire Release between Nortel Networks and
Arris and no promise, inducement or representation other than herein
set forth has been made, offered or agreed upon. This Release
supersedes all prior agreements, understandings
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or commitments concerning or relating to the subject matter of this
Release and Nortel Networks and Arris acknowledge that the terms hereof
are contractual in nature and not mere recitals.
13. Nortel Networks and Arris agree that this Release shall be governed in
all respects by the laws of the State of New York, without reference to
conflict of law principles.
14. No amendment of any provision of this Release shall be valid and
binding unless the same shall be in writing and signed by all of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Release effective as
of the date first above written.
NORTEL NETWORKS INC.
By:
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Title:
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ARRIS INTERACTIVE L.L.C.
By: _______________________________
Title: ______________________________
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