GENERAL RELEASE AND SETTLEMENT AGREEMENT
THIS
GENERAL RELEASE AND SETTLEMENT AGREEMENT (“Agreement”), which shall be deemed
effective upon full
execution by each of the signatories between, on one hand, Nu Horizons
Electronics Corporation (“Nu Horizons”); and on the other hand, Xxxxx, Xxxxxx
& Xxxxx, LLP, Nazeleen Xxxxxx, Xxxxxx Bielory, Xxxxxxx Xxxxxx, and
ParenteBeard LLC (collectively “the LLF Parties”).
RECITALS
WHEREAS,
Nu Horizons is the Claimant and the LLF Parties are the Respondents in an
arbitration proceeding with the American Arbitration Association (“AAA Action”),
No. 131 07 Y 00118109;
WHEREAS,
all the Respondents in the AAA Action have generally denied liability;
and
WHEREAS,
the Claimant and the Respondents in the AAA action desire to resolve all claims
that were asserted or could have been asserted in the AAA Action, without the
cost, uncertainty, and delay of further litigation.
NOW,
THEREFORE, in consideration of the respective covenants, undertakings,
representations and conditions hereinafter set forth, and intending to be
legally bound, the parties hereto agree as follows:
1. Payment to Nu
Horizons. The LLF Parties shall cause to be paid, on or before
October 4, 2010, to Nu Horizons the total sum of one million nine hundred
thousand United States Dollars ($1.9 million) in immediately available funds
(the “Settlement Payment”).
2. Releases.
(a) Upon
receipt of the Settlement Payment, Nu Horizons and its past and present
shareholders, subsidiaries, affiliates, agents, employees, officers, attorneys,
successors and assigns (the “Nu Horizons Releasing Entities”), absolutely and
forever discharge and release each and all of the LLF Parties, together with
each of their past and present shareholders, subsidiaries, affiliates, agents,
employees, officers, attorneys, insurers, successors and assigns of and from any
and all claims, actions, causes of action, proceedings, contracts, judgments,
obligations, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, covenants, trespasses, damages, demands, agreements, promises,
liabilities, controversies, costs, expenses, attorneys’ fees and losses
whatsoever, whether in law or in equity and whether based on any federal law,
state law, common law right of action or otherwise, foreseen or unforeseen,
matured or unmatured, known or unknown, accrued or not accrued, that the Nu
Horizons Releasing Entities ever had, now have, or ever may have, from the
beginning of the world to the date of this Agreement, that relate to the claims
that were or could have been asserted in the AAA Action.
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(b) Upon
receipt of the Settlement Payment, each of the LLF Parties and their past and
present shareholders, subsidiaries, affiliates, agents, employees, officers,
attorneys, successors and assigns (the “LLF Releasing Entities”), absolutely and
forever discharge and release Nu Horizons and each of its past and present
shareholders, subsidiaries, affiliates, agents, employees, officers, attorneys,
insurers, successors and assigns of and from any and all claims, actions, causes
of action, proceedings, contracts, judgments, obligations, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, covenants, trespasses,
damages, demands, agreements, promises, liabilities, controversies, costs,
expenses, attorneys’ fees and losses whatsoever, whether in law or in equity and
whether based on any federal law, state law, common law right of action or
otherwise, foreseen or unforeseen, matured or unmatured, known or unknown,
accrued or not accrued, that the LLF Releasing Entities ever had, now have, or
ever may have, from the beginning of the world to the date of this Agreement,
that relate to the claims that were or could have been asserted in the AAA
Action.
(c) Having
been fully advised by their respective counsel, it is the intention of Nu
Horizons and the LLF Parties that, notwithstanding the possibility that they or
their counsel may discover or gain a more complete, different or contrary
understanding of the facts, events or law which, if presently known or fully
understood, would have affected the foregoing releases, this Agreement shall be
deemed to have fully, finally and forever settled any and all claims encompassed
by the releases set forth herein, without regard to the subsequent discovery or
existence of different, contrary or additional facts, events or
law.
3. No Admission of
Liability. Neither the negotiation, nor the terms, conditions
and other provisions nor the performance of this Agreement shall be (a) deemed
or construed in any manner whatsoever to be an admission as to the merit or lack
of merit of any claim or defense in the AAA Action; or (b) used by any party for
any purpose other than the enforcement of the provisions hereof and/or the
releases provided for herein.
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4. Confidentiality. The
parties agree that the terms of this Agreement, all matters relating to the
subject matter of this Agreement, including transcripts, exhibits, and discovery
materials relating to the AAA Action, shall be kept confidential and should not
be disclosed to any third-party at any time except (and only to the minimum
extent) as required by applicable law. Moreover, the terms of this
Agreement and all the matters relating to the subject matter of this Agreement
may not be used or disclosed in any Court, arbitration, or other legal
proceeding except to enforce provisions of this Agreement.
5. Non-Disparagement. Nu
Horizons, on the one hand, and each of the LLF Parties, on the other hand, each
for themselves and their respective principals, shareholders, members, parents,
subsidiaries, employees, agents, predecessors, successors and assigns covenant
and agree that they will not make any subjective remarks or disparaging comments
about the other or the other’s past or present principals, shareholders,
members, parents, subsidiaries, employees, agents, predecessors, successors and
assigns.
6. Default
Remedies. Upon a default by any party of its respective
obligations under this Agreement, including but not limited to the payments
identified in paragraph 1, above, any other party to this Agreement may commence
an action under this Agreement seeking to enforce this
Agreement. Costs and expenses of suit including reasonable attorneys’
fees shall be payable to the prevailing party.
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7. Miscellaneous. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to that State’s conflict of laws
provisions. Further, the parties give their consent to exclusive
jurisdiction in any state or federal court in the State of New
York. This Agreement will be construed as if all parties prepared it,
and no rule of construction relating to the identity of the drafting party shall
apply. The paragraph headings contained in this Agreement are for
convenience of reference only and shall not affect the interpretation or
construction of this Agreement. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege
hereunder. All prior statements, representations, understandings and
agreements between Nu Horizons and any of the LLF Parties relating to the
subject matter hereof are superseded by this Agreement, which fully and
completely expresses their agreement. No party is relying on a
representation of any kind that is not expressly stated in this
Agreement. This Agreement may not be modified, changed, or amended
orally. This Agreement may be executed in multiple counterparts
and/or by facsimile or electronic transmission, each of which, when so executed
and delivered, shall be an original but such counterparts shall together
constitute one and the same instrument and agreement.
8. All
expenses related to the arbitration proceeding itself, including without
limitation the amounts payable to AAA and the amounts payable for transcription
of the proceedings, will be divided equally between, on one hand, Nu Horizons;
and on the other hand, the LLF Parties.
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IN WITNESS WHEREOF and intending to be
legally bound, the parties hereto have signed and executed this
Agreement.
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NU
HORIZONS ELECTRONICS CORPORATION
By: s/
Xxxx Xxxxxxxxxxx
Date: 9-14-2010
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XXXXX,
XXXXXX & XXXXX, LLP
By: s/Xxxxx
Xxxxxxxx
Date: 9/14/10
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XXXXXX
XXXXXXX
By: s/Xxxxxx
Xxxxxxx
Date: 9/14/10
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XXXXXXX
XXXXXX
By: s/Xxxxxxx
Xxxxxx
Date: 9/14/10
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NAZELEEN
XXXXXX
By: s/Nazeleen
Xxxxxx
Date: 9/14/10
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PARENTEBEARD
LLP
By: s/
Xxxxxx Xxxxxxxxxx
Date:
September 14, 2010
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