Exhibit 10.3
TERMINATION OF PATENT LICENSE AGREEMENT
BETWEEN
LEXAR MEDIA, INC. AND SAMSUNG ELECTRONICS CO., LTD
This Termination of Patent License Agreement (the "Agreement") is executed
and delivered effective as of March 23, 2002 (the "Effective Date") by and
between Lexar Media, Inc., a Delaware corporation ("Lexar"), and Samsung
Electronics, Co., Ltd., a company organized under the laws of South Korea
("Samsung").
RECITALS
A. Lexar and Samsung are parties to that certain Patent License Agreement
effective as of March 29, 2001 (the "License Agreement").
B. It is determined to be in the best interests of Lexar and Samsung
that the License Agreement should be terminated on the condition that Lexar and
Samsung execute a new Patent License Agreement (the "Patent Agreement").
NOW, THEREFORE, for good and valuable consideration of the promises and
mutual agreements set forth herein, sufficiency and value of which is hereby
acknowledged, Lexar and Samsung agree as follows:
1. Termination. Upon the effective date of the Patent Agreement, the
License Agreement and all rights, licenses and obligations granted under the
License Agreement will terminate (the "Termination Date"); provided, however,
that: a) Samsung shall remain liable for all license fees, royalties and taxes
described in Section 4 of the License Agreement that have accrued prior to the
Termination Date, and b) Lexar for all licenses granted under Section 2; and c)
the provisions described in Section 10.6 of the License Agreement as surviving
shall survive such termination.
2. Mutual General Releases and Waiver.
(a) Releases. Each party hereto, on behalf of itself and its agents,
representatives, affiliates, subsidiaries, predecessors, successors and assigns
and any persons acting by, through, under or in concert with each of them, or
any of them, hereby releases and forever discharges the other party hereto, and
its agents, representatives, affiliates, subsidiaries, predecessors, successors
and assigns, of and from any and all manner of action or actions, cause or
causes of action, in law or in equity, including but not limited to court costs
and attorneys' fees, of any nature whatsoever, whether or not now known, claimed
or suspected, fixed or contingent (hereinafter collectively referred to as
"Claims"), which either party now has, ever had, ever claimed to have had, or
hereafter may have against the other party arising out of, based
upon or related in any manner whatsoever to the License Agreement (collectively
the "Released Matters"); provided, however, that this release does not release
or discharge either party from its warranties, representations or obligations
under this Agreement.
(b) Waiver and Relinquishment. It is expressly understood and agreed by the
parties that the above releases are intended to cover and do cover not only all
known damages and losses but any further damages and losses not now known or
anticipated but which may later develop or be discovered arising out of any of
the Released Matters. Each of the parties understands and acknowledges that he
or it is aware of California Civil Code (S) 1542 which provides as follows: "A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor." Each
of the parties expressly waives and relinquishes any rights it may have under
Civil Code (S) 1542 or any other statute or common law principle with a similar
effect. In connection with such waiver and relinquishment, the parties
acknowledge that they or their attorneys or agents may hereafter discover claims
or facts in addition to or different from those which they now know or believe
to exist with respect to the Released Matters, but that it is their intention
hereby fully, finally and forever to settle and release all of the Released
Matters. In furtherance of this intention, the releases herein given shall be
and remain in effect as full and complete mutual releases notwithstanding the
discovery or existence of any such additional or different claim or fact.
3. Representations and Warranties. Lexar and Samsung individually represent
and warrant that, as to themselves (i) they have the power and authority to
enter into and perform this Agreement and (ii) no consents are required in order
to terminate their rights and obligations under the License Agreement.
4. Successors and Assigns. This Agreement shall be binding on and shall
inure to the benefit of the parties, their affiliates, their permitted
successors and assigns.
5. Counterparts. This Agreement may be executed in counterparts and, upon
delivery of counterparts that together show the execution by all parties hereto,
shall constitute one agreement that shall inure to the benefit of and be binding
upon the parties hereto.
6. Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of California, United States of
America applicable to residents of California (irrespective of its choice of law
principles). Any suit brought hereunder will be brought solely in the federal or
state courts of the Northern District of California and Lexar and Samsung each
hereby submits to the personal jurisdiction thereof.
7. Severability. In the event any provision of this Agreement or the
application of any such provision shall be held by a tribunal of competent
jurisdiction to be contrary to law, it shall be modified to reflect the fullest
legally enforceable intent of the parties, or if such modification is not
possible such provision shall be severed, and the remaining provisions of this
Agreement shall remain in full force and effect.
8. Entire Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof, and it is expressly
understood and agreed that it
may not be altered, amended or modified except in writing duly executed by an
authorized representative of the party or parties to be charged.
IN WITNESS WHEREOF, Lexar and Samsung have caused this Agreement to be
entered into as of the Effective Date.
Lexar Media, Inc. Samsung Electronics Co., Ltd.
By: /s/ Xxxx X. Xxxxxxxx /s/ Yun Xxxxx Xxxx
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Xxxx X. Xxxxxxxx Yun Xxxxx Xxxx
Title: Vice President of Technology Senior Vice President
Licensing
Date: March 23, 2002 March 23, 2002
