EXHIBIT 10.2
MUTUAL RELEASE AND TERMINATION AGREEMENT
This Mutual Release and Termination Agreement (the "Agreement") is made and
effective as of July 18, 2003 (the "Effective Date") by and between Dtomi, Inc.
("Dtomi"), a Nevada corporation, and Xxxx Xxxxxxx ("Xxxxxxx"), an individual,
(collectively, the "Parties").
RECITALS
WHEREAS, the Parties entered into an Asset Purchase Agreement (the
"APA") dated as of April 7, 2003; and
WHEREAS, Dtomi is the owner of the air spring powered lowerable
suspension assembly patent, Patent No. 6,530,580 (the "Patent"); and
WHEREAS, the Parties have determined to terminate the APA.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, agree as follows:
1. TERMINATION OF APA. The Parties agree that, effective immediately,
the APA is terminated.
2. ASSIGNMENT OF PATENT. Dtomi agrees to assign its right, title, and
interest in and to the Patent, and all ownership interest in all patent rights
associated with the Patent, pursuant to that certain Assignment of Patent Rights
entered into by the Parties on July 18, 2003, to Xxxxxxx.
3. ENTIRE AGREEMENT. This Agreement supercedes all prior discussions,
representations, warranties and agreements, both written and oral, among the
Parties with respect to the subject matter herein, and contains the sole and
entire agreement among the Parties with respect to the subject matter herein. No
prior drafts of this Agreement and no words or phrases from any such prior
drafts shall be admissible into evidence in any action, suit or other proceeding
involving this Agreement.
4. GOVERNING LAW. This Agreement shall be interpreted under the laws of
the State of Washington without reference to Washington conflicts of law
provisions.
5. VENUE. The parties to this Agreement agree that any action on this
Agreement shall be brought in a court of competent jurisdiction located in King
County, Washington.
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6. ARBITRATION. If at any time during the term of this Agreement any
dispute, difference or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference and disagreement shall be referred to a single arbiter agreed upon by
the parties, or if no single arbiter can be agreed upon, an arbiter or arbiters
shall be selected in accordance with the rules of the American Arbitration
Association and such dispute, difference or disagreement shall be settled by
arbitration in accordance with the then prevailing commercial rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbiter may be entered in any court having jurisdiction thereof.
7. ATTORNEY FEES. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys' fees to be fixed by the arbitrator, trial court and/or
appellate court.
8. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument. Executed copies of this Agreement transmitted by
telecopier shall be valid and binding.
9. TITLES AND CAPTIONS. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
10. CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
By: ________________________________
Name: Xxxx Xxxxxxx
DTOMI, INC.
By: ________________________________
Name: Xxxxx X. Xxxx
Title: Chairman of the Board of Directors
