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Exhibit 2.3
SETTLEMENT AGREEMENT
THIS AGREEMENT MADE AS OF THE 31ST DAY OF AUGUST 2000
BETWEEN:
XBOX TECHNOLOGIES, INC.,
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a Delaware corporation, formerly named Nicollett Process Engineering, Inc.
maintaining a business address at:
10400 Viking Drive
Suite 110
Eden Prairie, Minnesota 44355
Fax: (612) 944-7812
(hereinafter referred to as "XBOX")
OF THE FIRST PART
- and -
TECHINSPIRATIONS INC.,
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a Nevada corporation having a business address at:
2665 South Bayshore Drive
Suite PH2B
Coconut Grove, FL 33133
Fax: (305) 913-3306
(hereinafter referred to as "Tech")
OF THE SECOND PART
- and -
AMYYON COMPANY
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a Michigan corporation having a business address at:
2665 South Bayshore Drive
Suite PH2B
Coconut Grove, FL 33133
Fax: (305) 913-3306
(hereinafter referred to as "Amyyon")
OF THE THIRD PART
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THIS INDENTURE WITNESSETH that in consideration of the mutual
premises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto and
each of them do hereby covenant, undertake, declare and agree as follows:
ARTICLE I
RECITALS
1.1 The parties acknowledge and confirm that the following recitals of fact
and intention are true and correct in substance and in fact and are
incorporated into and form an integral part hereof:
a) Tech and XBOX entered into a letter of intent dated June 17th,
1999 respecting XBOX's acquisition (the "Proposed
Transaction") from Tech of all of the issued and outstanding
shares and rights to shares in the capital stock of Amyyon
(the "Purchased Shares") on the terms and conditions set out
in the letter of intent (the "Letter of Intent") including the
following principal terms and conditions;
i) Amyyon would have no accrued liabilities to May 31st,
1999 (although it was acknowledged that Amyyon had
ongoing operational commitments and liabilities after
that date for employee wages and ordinary course of
business expenses) and all of the development
financial support supplied by Tech to Amyyon to that
date would be converted into equity and conveyed to
XBOX through the conveyance of the Purchased Shares;
ii) Amyyon was essentially a start-up venture having no
tangible assets other than an exclusive Global
Reseller Agreement with Amyyon Holding B.V. (the
"Licensor") permitting Amyyon to distribute on an
exclusive basis the Licensor's software products (the
"Software") in North America, Central America
(including the Caribbean) and South America
(collectively, the "Territory") together with the
business plans and budgets developed for Amyyon's
creation of a marketing and distribution network in
the Territory which marketing effort was budgeted at
$5,700,000 (the "Marketing Plan");
iii) The effective date for the transaction would be June
1st, 1999 and XBOX would take over responsibility for
Amyyon and for the Marketing Plan as of and from that
date (the "Effective Date");
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iv) In consideration of the conveyance of the Purchase
Shares, XBOX agreed to amend its share capital to
create nonparticipating preference shares (the
"Preference Shares") and to issue to Tech $2,800,000
of such Preference Shares in satisfaction of the
purchase price for the Purchased Shares (the "Share
Consideration");
b) In furtherance of the completion of the proposed transaction,
XBOX assumed control over Amyyon's Marketing Plan and the
supervision of Amyyon's employees, and XBOX provided the
funding, by way of loan, of Amyyon's working capital
requirements as of and from the Effective Date;
c) By mutual agreement, XBOX and Tech deferred the final
completion of the transaction (including the amendment of
XBOX's share capital to create the Preference Shares, the
payment to Tech of the Share Consideration, and the conveyance
by Tech to XBOX of the Purchased Shares) in order to determine
the viability and success of the Marketing Plan;
d) By the time that XBOX had reached its third-quarter, fiscal
2000, it had become apparent to both XBOX and Tech that,
notwithstanding the implementation of the Marketing Plan and
adherence to it by XBOX, the United States market was not as
ready to accept the Software as had originally been
anticipated when the Marketing Plan was formed and, as a
result, representatives of XBOX and Tech agreed to terminate
the Proposed Transaction and the Marketing Plan on the terms
set out in this settlement agreement with a view to winding up
the business operations of Amyyon and concluding this
settlement agreement (this "Agreement") by the end of XBOX's
fourth quarter in fiscal 2000;
e) At a June 22nd, 2000 meeting of the Board of Directors of
XBOX, the Board of Directors of XBOX approved the plan to
terminate XBOX's commitment to the acquisition and marketing
of the Software; and
f) As of the 31st day of August, 2000, the amount of loan funding
advanced by XBOX to Amyyon in furtherance of the transaction
and the Marketing Plan, inclusive of principal and interest,
was $3,981,978,78 (the "Amyyon Payable").
1.2 Without limiting the generality of Paragraph 1.1, each of XBOX and Tech
hereby ratifies and confirms the arrangement, set out in subparagraphs
1.1(b) and 1.1(c) hereof, as of and with effect from the Effective Date
with the same force and effect as if those arrangements had been
reduced to writing on that date, in addition to having been agreed
orally at that time and subsequently having been affirmed by a course
of conduct.
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ARTICLE 2
TERMINATION OF AGREEMENTS AND RELEASE OF PURCHASE RIGHT
2.1 The parties hereto agree to terminate the Proposed Transactions
contemplated under the Letter of Intent and to settle all rights and
obligations of each of them to the other with respect to the Proposed
Transactions and their subsequent course of conduct in respect thereof
on the basis set out in this Agreement and with effect as of the 31st
day of August, 2000.
2.2 XBOX shall no longer be obliged to purchase, and Tech shall be no
longer obliged to issue, the Purchased Shares.
2.3 XBOX shall be no longer obliged to issue the Share Consideration to
Tech, and Tech shall no longer be entitled to receive the Share
Consideration from XBOX.
2.4 Amyyon shall no longer be obliged to pay the Amyyon Payable to XBOX and
XBOX hereby releases and forever discharges Amyyon from any and all
obligations to repay the Amyyon Payable.
ARTICLE 3
GENERAL MUTUAL RELEASE
3.1 Each of the parties hereto (collectively, the "Releasors") does hereby
remise, release and forever discharge each of the other parties hereto,
and each officer, director,
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shareholder and agent, as the case may be, of the other parties hereto
(collectively, the "Releasees") of and from all actions, causes of
actions, suits, duties, debts, accounts, bonds, covenants, contracts,
claims and demands whatsoever which each of the Releasors, directly or
indirectly as applicable, or otherwise now has or hereafter can, shall
or may have against any of the Releasees for or by reason of or in any
way arising out of any cause, matter or thing whatsoever existing up to
the date hereof pertaining to the Letter of Intent, the Proposed
Transaction, or the subsequent course of conduct in respect thereof,
including without limitation, any obligation to repay the Amyyon
Payable or any part thereof; provided however, that this release shall
not operate as a release or discharge of any party's obligations under
this Agreement to any other party hereto.
3.2 Each of the Releasors hereunder further covenants and agrees not to
join in, assist, aid or act in concert in any manner whatsoever with
any other person or persons, company or other body corporates in the
making of any claim or demand, or in the bringing of any proceeding or
an action in any manner whatsoever against the Releasees, their
respective officers, employees, agents, successors and assigns, or
against any other person or persons, company or other body corporate
who might claim contribution or indemnity from the Releasees, their
respective officers, employees, agents, successors and assigns, arising
out of or in relation to the matters hereinbefore remised, released or
discharged; provided that, without limiting the generality of the
foregoing, nothing contained in this paragraph shall prevent any of the
Releasors from testifying any answer to any subpoena served upon it in
any action or proceeding, or otherwise providing such testimony or
assistance when compelled to do so under any law or regulation having
jurisdiction over it.
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3.3 The releases in this Agreement and in Article 3 hereof shall enure to
the benefit of and be binding upon each of the Releasors and each
Releasee hereto and their respective heirs, legal and personal
representatives, successors and permitted assigns.
ARTICLE 4
NOTICE
4.1 Any notice or other communication which may be or is required to be
given or made pursuant to this Agreement shall be deemed to have been
sufficiently and effectively given if signed by or on behalf of the
party giving notice and sent by personal service or prepaid registered
mail or transmitted by telecopier to the party for whom it is intended
at its address set out in the recitals of the parties to this
agreement.
4.2 Any notice or communication which may be or is required to be given may
be made or given as herein provided, and the date of receipt of such
notice shall be the date of delivery of such notice if delivered, the
day of transmission by telecopier if delivered by telecopier and the
fifth business day following the date of mailing if mailed.
ARTICLE 5
GENERAL
5.1 Each of the parties hereto shall do, perform, execute and deliver all
acts, deeds, documents and further assurances as may be necessary from
time to time to give full, force and effect to the intent of this
Agreement.
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5.2 This Agreement may be executed in several counterparts and may be
effectively delivered by facsimile transmission of a signed original,
each of which when so executed or delivered shall be deemed to be an
original and such counterparts together shall constitute one and the
same instrument and shall be effective as of the formal date hereof.
5.3 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
legal personal representatives, successors and assigns.
5.4 This Agreement shall be governed by and construed in accordance with
the laws of the state of Minnesota and the federal laws of the United
States of America applicable therein.
IN WITNESS WHEREOF the parties have executed this Agreement under the
hands of their duly authorized signing officers on the date(s) set out below
with an effective date as of the date first above written.
XBOX TECHNOLOGIES, INC. TECHINSPIRATIONS, INC.
BY: BY:
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ITS: ITS:
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DATE: DATE:
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AMYYON COMPANY
BY:
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ITS:
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DATE:
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