EXHIBIT 10.2
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where applicable,
has been marked with an asterisk to denote where omissions have been made. The
confidential material has been filed separately with the Commission.
PURCHASE AND SUPPLY AGREEMENT
BETWEEN
LEXAR MEDIA, INC. AND SAMSUNG ELECTRONICS CO., LTD.
This Purchase and Supply Agreement (the "Agreement") is made and entered into
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as of this 29th day of March, 2001 ("Effective Date") between Lexar Media,
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Inc., a Delaware corporation having a place of business at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, XX 00000 ("Lexar"), and Samsung Electronics, Co., Ltd.
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("Samsung") a corporation of South Korea having its principal place of
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business at San #00 Xxxxxxx-Xx, Xxxxxxx-Xxx, Xxxxxx-Xxxx, Kyunggi-Do, South
Korea.
RECITALS
A. Samsung is a leading supplier of NAND Flash Memory Chips and Smart Media
(both of the foregoing as defined herein), and wishes to provide committed
volumes of NAND Flash Memory Chips and Smart Media to Lexar at committed sales
prices, all as described in this Agreement.
B. Lexar wishes to obtain NAND Flash Memory Chips and Smart Media from
Samsung, all as described in this Agreement.
C. Lexar has developed Lexar Controllers (as defined herein) that it wishes
to make available to Samsung, all as described in this Agreement.
D. Contemporaneously with the execution of this Agreement, Samsung and Lexar
are executing a Patent License Agreement ("License Agreement") pursuant to
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which Samsung receives a non-exclusive license to certain of Lexar's
proprietary technology to manufacture, market and sell certain flash memory
products.
E. Contemporaneously with the execution of this Agreement, Lexar and Samsung
Semiconductor, Inc., ("SSI"), a wholly-owned subsidiary of Samsung, are
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entering into a Consignment Contract ("Consignment Contract") pursuant to
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which Lexar will purchase from SSI certain flash memory.
1. Headings and Definitions.
1.1 Interpretation. All headings used in this Agreement are inserted for
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convenience only and are not intended to affect the meaning or interpretation
of this Agreement or any
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section or clause of this Agreement. References to "third party" or "third
parties" will not mean either party. The meanings given to terms defined in
this Agreement are equally applicable to both the singular and the plural
forms of such terms.
1.2 Definitions. Terms used and/or defined in the Schedules attached to
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this Agreement, that are not otherwise defined in this Agreement, will have
the meanings as set forth in those Schedules for the purposes of those
Schedules only. For purposes of this Agreement, the following definitions
apply:
"Affiliate" means, with respect to any entity, any other entity that
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controls, is controlled by or is under common control with such entity. For
purposes of this Agreement, an entity shall be in "control" of an entity if it
owns or controls at least fifty percent (50%) of the equity securities of the
subject entity entitled to vote in the election of directors (or, in the case
of an entity that is not a corporation, for the election of the corresponding
managing authority), or otherwise has the power to control the management and
policies of such other entity.
"Average Monthly Sales" means the average monthly bits of NAND Flash
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Memory Chips, or Smart Media as applicable, sold by Samsung or its Affiliates
anywhere in the World during the three (3) calendar month period immediately
proceeding Lexar's request.
"Compact Flash Card" means a flash memory storage device that meets
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the Compact Flash Specifications.
"Compact Flash Controller" means a device (whether implemented in
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firmware, hardware and/or software) that controls the operation of a Compact
Flash Card.
"Compact Flash Specifications" means the specifications for a certain
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flash memory storage device developed by the Compact Flash Association (as
such specifications are from time to time modified or replaced by the Compact
Flash Association in its sole discretion).
"Consignment Contract" has the meaning set forth in the Recitals.
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"Lexar Controller" means a Compact Flash Controller develop by Lexar.
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"License Agreement" has the meaning set forth in the Recitals.
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"NAND Flash Memory Chip" means Samsung's "generally available" NAND
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Flash Memory Chip, but excludes any combination, bundling or integration of
such a chip with other products or devices. However, generally available NAND
Flash Memory Chip specifically excludes any chip requiring undue manufacturing
burden (i.e., a yield of less than 50% of the Samsung's normal production
yield). NAND Flash Memory Chip also means and includes any of Samsung's
comparable or equivalent replacement or successor products.
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"Reseller" means Samsung's sales agents outside the United States that
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purchase Samsung Products solely for purposes of reselling such Samsung
Products to OEM's. A reseller is not an entity that assembles or manufacture
flash memory cards.
"Reseller Price" means the actual sales price plus five percent (5%)
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of such actual sales price.
"Samsung Products" means NAND Flash Memory Chips and Smart Media.
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"Smart Media" means a flash memory storage device that meets the Smart
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Media Specifications.
"Smart Media Specifications" means the specifications for a certain
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flash memory storage device developed by the Smart Media Association (as such
specifications are from time to time modified or replaced by the Smart Media
Association in its sole discretion).
"SSI'' has the meaning set forth in the Recitals.
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2. Purchase and Supply Commitments.
2.1 NAND Flash Memory Chips Supply. At Lexar's request, in each month of
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this Agreement Samsung shall sell and timely deliver (or cause SSI to sell and
timely deliver) to Lexar substantially all the NAND Flash Memory Chips
required by Lexar, provided that Samsung shall not be obligated to make
available to Lexar any NAND Flash Memory Chips in excess of * percent (*%) of
the Samsung's Average Monthly Sales. The sale and delivery of such NAND Flash
Memory Chips shall be made pursuant to the terms and conditions of this
Agreement and the Consignment Contract, and Samsung hereby guarantees the
performance of all of SSI's obligations under the Consignment Contract. Lexar
shall not sell any NAND Flash Memory Chips made available pursuant to the
Consignment Contract as a stand-alone product without the prior written
consent of Samsung or an Affiliate of Samsung.
2.2 NAND Flash Memory Chips Purchase. Subject to Section 5 of this
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Agreement, Lexar shall purchase all of its NAND Flash Memory Chips
requirements from Samsung or its Affiliates up to the amounts committed by
Samsung in Section 2.1, provided that Samsung or its Affiliates make and
continue to make NAND Flash Memory Chips available to Lexar pursuant to the
terms and conditions of this Agreement and the Consignment Contract.
2.3 Smart Media Supply. At Lexar's request, in each month of this
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Agreement Samsung shall sell and timely deliver (or cause SSI to sell and
timely deliver) to Lexar all Smart Media requested by Lexar, up to * percent
(*%) of the Average Monthly Sales of Smart Media sold by Samsung or its
Affiliates anywhere in the world during the three (3) calendar month period
immediately preceding Lexar's request. The sale and delivery of
* Material has been omitted and filed separately with the Commission
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such Smart Media shall be made pursuant to the terms and conditions of this
Agreement and the Consignment Contract. Lexar shall not sell any Smart Media
purchased pursuant to this Agreement to any customers for resale *.
2.4 No Breach. Samsung shall use its best efforts to make Samsung
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Products available to Lexar pursuant to Sections 2.1 and 2.3, however,
Samsung's failure to satisfy Lexar's requested volume shall not be considered
a breach of this Agreement. Furthermore, Samsung's failure to timely deliver
all or portion of NAND Flash Memory Chips and/or Smart Media under Sections
2.1 and 2.3, respectively on a particular purchase order, due to an equipment
failure, process-related performance degradation and/or other unexpected
occurrences temporarily affecting Samsung production capabilities shall not be
considered a breach to the extent Samsung uses its best efforts to promptly
restore the production conditions. In the event of such a failure, Lexar may
purchase NAND Flash Memory Chips and/or Smart Media from any third party in
accordance with Section 5.2 of this Agreement.
3. Prices
3.1 Samsung Products Prices.
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(a) Samsung shall sell or cause SSI to sell Samsung Products to Lexar
in the quantities described in Sections 2.1 and 2.3 at prices that are *.
Without limiting the preceding sentence, throughout the term of this
Agreement, Samsung shall ensure that: (i) the prices for Samsung Products
offered or sold to Lexar shall be *; and (ii) during the first three (3) years
of this Agreement, the prices to Lexar for Samsung Products offered in TSOP
shall be *. For the avoidance of doubt, the determination of the prices at
which Samsung or its Affiliates offers or sells Samsung Products to any third
party will account for any and all cash and non-cash consideration paid,
rebated, credited or otherwise made available by Samsung or its Affiliates to
any such third party. However, the * shall not include any promotional sales
covering uses of flash products in embedded applications. For offers or sales
of Samsung Products in a currency other than US Dollars, the price for such
offer or sale shall be calculated by the average exchange rate for the
proceeding three month as published by the Korea Exchange Bank. Solely for
the purposes of this Section 3.1, Samsung Products shall be deemed to have
been sold to Lexar as is described in the Consignment Contract.
(b) The * shall not apply to samples of Samsung Products that Samsung
or its Affiliates provide to customers in quantities of less than one thousand
(1000).
(c) Without limiting the rights and remedies available to Lexar under
this Agreement or at law or equity, if Samsung fails to sell or cause SSI to
sell Samsung Products to Lexar at the * in accordance with the terms of
subsection 3.1(a) above, Lexar will have the right to: (i) offset any amounts
paid by Lexar in excess of the * to Samsung or its Affiliates for Samsung
Products against any other amounts due and payable under this Agreement, the
Consignment Contract or any other agreement between the parties or their
Affiliates; or (ii) increase the prices at which Lexar sells Lexar Controllers
to Samsung or its Affiliates pursuant to Section 3.2 by the amount of such
excess; and (iii) credit the excess cost of any
* Material has been omitted and filed separately with the Commission.
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Lexar purchase from a third party necessitated by any such failure against the
applicable minimum purchase requirements set forth in Section 4.1 below.
(d) Samsung reserves right to suspend or terminate the * obligations
as set forth in Section 3.1 (a) and Consignment Contract in its entirety if
Lexar purchases from Samsung less than * percent (*%) of Lexar's annual
requirement of Samsung Products for reasons other than Samsung's inability to
make Samsung Products available for purchase.
3.2 Lexar Controllers Prices. Provided that the parties agree on the
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other general terms and conditions for the sale of Lexar Controllers to
Samsung, Lexar shall sell Lexar Controllers to Samsung at prices that are *
price for such Lexar Controllers offered or sold by Lexar or its Affiliates to
any company anywhere in the world in the calendar month in which the Lexar
Controllers are sold to Samsung.
3.3 Taxes. All stated prices are exclusive of any taxes, fees and duties
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or other amounts, however designated, and including without limitation value
added and withholding taxes which are levied or based upon such charges, or
upon this Agreement.
4. Minimum Purchase Commitments.
4.1 Minimum Purchase. Except as otherwise set forth in this Agreement,
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Lexar shall purchase a minimum of * Dollars ($*) worth of Samsung Products
during the period of the first full six quarters (hereinafter "first purchase
period") from the Effective Date and a minimum of * Dollars ($*) worth of
Samsung Products during the period of the seventh to the twelfth quarters
(hereinafter "second purchase period") from the Effective Date, provided that:
(i) this Agreement has not been terminated; and (ii) Samsung has made all
Samsung Products available as described in this Agreement and the Consignment
Contract. Lexar's obligations under this Section 4.1 shall not be effective
if: (i) this Agreement is terminated as described herein; or (ii) Samsung
fails to make Samsung Products available to Lexar as described in Section 5.2
herein. However, Samsung's failure to make Samsung Products available to
Lexar in a given quarter shall not per se relieve Lexar of the minimum
purchase obligations under this Section so long as Samsung satisfies Lexar's
anticipated needs as forecasted in Section 2 of the Consignment Contract.
Lexar shall have no obligation to purchase any minimum volume or amount of
Smart Media.
4.2 No Breach. In no event shall Lexar's inability or failure to purchase
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those amounts of Samsung Products described in Section 4.1 constitute a breach
of this Agreement. Samsung's sole and exclusive remedy for Lexar's inability
or failure to purchase those amounts of Samsung Products described in Section
4.1 shall be as set out in Sections 1.6 and 4.3 of the License Agreement.
5. Pricing and Performance Requirements.
5.1 Pricing. Notwithstanding the terms of Section 2.2, if the price of
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the NAND Flash Memory Chips offered to Lexar by Samsung or its Affiliates
exceeds the price for
*Material has been omitted and filed separately with the Commission.
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commercially available NAND flash memory chips or other substitutable non-
volatile memory in equivalent volumes offered by another entity, Lexar shall
notify Samsung in writing of such entity's price and Samsung or its Affiliates
shall have one (1) business day from receipt of the notice to match or beat
such price. If Samsung or its Affiliates fail to timely respond to the notice
and to match or beat such price, then Lexar shall be entitled to purchase
those volumes offered by such entity.
5.2 Other Requirements. Notwithstanding the terms of Section 2.2, Lexar
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may purchase NAND Flash Memory Chips from any third party, with no liability
or obligation to Samsung or SSI of any kind, if at any time:
(a) Samsung or its Affiliates do not offer Samsung Products for sale
to Lexar that meet Lexar or its customer's requirements or if Samsung fails to
timely deliver to Lexar for the reasons as described in Section 2.4 herein;
(b) Samsung or its Affiliates do not offer for sale to Lexar any off-
the shelf NAND Flash Memory Chips having standard performance specification as
published in Samsung product data sheet that are generally offered to other
Samsung customers.
In any of the events set forth in Section 5.2 (a) - (b), inclusive,
Lexar may exercise the remedies set forth in Section 3.1(c), as applicable.
Otherwise, Samsung shall in good faith use its best efforts to meet Lexar's
need for any products providing non-standard performance specification.
6. Mutual Cooperation.
6.1 OEM Customers. The parties shall use commercially reasonable efforts
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to work together to sell Compact Flash Controllers to OEM customers, as to be
agreed in writing by the parties.
6.2 Joint Promotion. The parties shall use commercially reasonable
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efforts to work together on the promotion of Lexar Controllers and Samsung's
NAND Flash Memory Chips, as to be agreed in writing by the parties.
6.4 Optimization of Products. Lexar shall use commercially reasonable
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efforts to qualify and optimize Lexar Controllers for Samsung's NAND Flash
Memory Chips, as agreed in writing by the parties.
6.5 Forecasting. The parties shall meet on a quarterly basis to discuss
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volume projections for the purchase of Samsung Products and Lexar Controllers
over the following twelve (12) months.
7. Confidential Information.
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7.1 Definition of Confidential Information. Lexar and Samsung acknowledge
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that, in the course of performing their respective obligations hereunder, each
may obtain information relating to the other and the other's products that is
of a confidential and proprietary nature to such other party. "Confidential
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Information" means confidential or proprietary information of either party
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which is (i) designated with the legend "Confidential" or comparable legend in
case of disclosure thereof in written, graphic, machine readable or other
tangible form or (ii) designated "Confidential" at the disclosure thereof in
other form and within thirty (30) calendar days after such disclosure set
forth in a writing designated "Confidential" and forwarded to the receiving
party. Confidential Information further includes without limitation the
existence and terms of this Agreement.
7.2 Exclusions. Confidential Information does not include information
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which (i) is or becomes public knowledge or is received by the other party
without the fault or action of the other party or any breach of any
confidentiality obligation; (ii) the other party can document was
independently developed by it without use or access to the Confidential
Information; or (iii) the other party can document was previously known to it
prior to receipt of the Confidential Information.
7.3 Obligation. Each of Samsung and Lexar agrees that, during the term of
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this Agreement and for a period of five (5) years thereafter, it will (i) use
the other party's Confidential Information only in connection with fulfilling
its rights and obligations under this Agreement; (ii) hold the other party's
Confidential Information in strict confidence and exercise due care with
respect to its handling and protection, consistent with its own policies
concerning protection of its own Confidential Information of like importance
but in no instance less than reasonable care, such due care including without
limitation requiring its employees to execute non-disclosure agreements which
provide protection of the other party's Confidential Information which is at
least as protective as the terms and conditions of this Agreement; (iii) not
disclose, divulge or publish the other party's Confidential Information except
to such of its responsible directors, employees and consultants and legal and
financial advisors who have a bona fide need to know to the extent necessary
to fulfill such party's obligations under this Agreement or except to the
extent such Confidential Information is required to be disclosed pursuant to
applicable law, regulation or court order provided the other party uses
reasonable efforts to give the party owning the Confidential Information
sufficient notice of such required disclosure to allow the party owning the
Confidential Information reasonable opportunity to object to and to take legal
action to prevent such disclosure (or to request confidential treatment
thereof); (iv) instruct all such employees, directors, consultants and
advisors not to disclose the other party's Confidential Information to third
parties, without the prior written permission of the other party. Each party
may disclose Confidential Information of the other party: (i) to its legal and
financial advisors, as necessary to obtain tax, legal and accounting advice;
(ii) in connection with SEC filings; and (iii) to bona fide potential
investors or acquirers in connection with a financing, merger, acquisition or
similar transaction, provided that investors or acquirers are subject to,
confidentiality obligations at least as restrictive as those contained herein.
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8. Term and Termination.
8.1 Term. This Agreement shall commence on the Effective Date and
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shall continue for a period of * (*) years, unless extended by written
agreement of both parties or unless sooner terminated as provided in this
Section 8.
8.2 Termination due to Samsung's Material Breach. If Samsung
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materially breaches any term or condition of this Agreement or of the License
Agreement and fails to cure that breach within thirty (30) calendar days after
receiving written notice of the breach, then Lexar shall have the right to
terminate this Agreement, terminate the licenses and other rights granted to
Samsung under Sections 2.1 and 2.2 of the License Agreement, in each case, at
any time after the end of such thirty (30) calendar day period. Without
limiting the foregoing, and without limiting the rights and remedies available
to Lexar under this Agreement or at law or equity, during such thirty (30)
calendar day period, Lexar will have the right: (i) to purchase NAND flash
memory chips from any third party, with no liability or obligation to Samsung
or SSI of any kind; and (ii) to exercise the remedies set forth in Section
3.1(c), as applicable.
8.3 Termination due to Lexar's Material Breach. If Lexar materially
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breaches any term or condition of this Agreement or of the License Agreement
and fails to cure that breach within thirty (30) calendar days after receiving
written notice of the breach, Samsung shall have the right to terminate this
Agreement at any time after the end of such thirty (30) calendar day period,
and further have the right to extend the license at the terms as set forth in
Section 2.1 (e) of the License Agreement.
8.4 Lexar Termination due to Irreparable Impairment. Lexar may, upon
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thirty (30) days written notice, terminate this Agreement without any
liability or obligation to Samsung in the event that Lexar's ability to make
the minimum purchase commitment set out in Section 4.1 is irreparably impaired
for any reason, including but not limited to the price guaranteed in Section
3.1 frequently exceeding the generally available fair market price for NAND
flash memory chips. In the event of such termination, Lexar shall be entitled
to terminate the licenses and other rights granted to Samsung under Sections
2.1 and 2.2 of the License Agreement. However, if Lexar terminates the
License Agreement pursuant to this section, Samsung shall be entitled to
immediately extend the license at the terms as set forth in Section * of the
License Agreement if Samsung has paid or pays within thirty (30) days of such
termination a cumulative total of * dollars ($*) of the license fee under
Section * of the License Agreement.
8.5 Samsung Termination due to Irreparable Impairment. Samsung may,
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upon thirty (30) days written notice, terminate this Agreement without any
liability or obligation (except for amounts owed to Lexar due to prior
purchases) in the event that Samsung's ability to provide Samsung Products is
irreparably impaired due to Samsung's inability, after using commercially
reasonable efforts, to acquire necessary licenses from *. In the event of
such termination, Lexar shall be entitled to terminate the licenses and other
rights granted to Samsung under Sections 2.1 and 2.2 of the License Agreement,
and/or terminate the
Material has been omitted and filed separately with the Commission.
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Consignment Contract. However, to the extent Samsung pays or has paid the
entire * dollars ($*) of the license fee under Section * of the License
Agreement, Samsung shall be entitled to immediately extend the license at the
terms as set forth in Section * of the License Agreement.
8.6 Termination upon Voluntary Bankruptcy. If either party (a) seeks
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the liquidation, reorganization, dissolution or winding up of itself (other
than dissolution or winding up for the purposes of reconstruction or
amalgamation) or the composition or readjustment of all or substantially all
of its debts, (b) applies for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of itself or of
all or substantially all of its assets, (c) makes a general assignment for the
benefit of its creditors, (d) commences a voluntary case under the bankruptcy
code, or (e) files a petition for relief or otherwise seeks relief from or
readjustment of its debts under any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or readjustment of debts
(including, without limitation, consenting to the entry of an order for relief
in an involuntary bankruptcy case against it) (such party, the "Filing
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Party"), then the other party to this Agreement shall have the right to
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terminate this Agreement upon written notice to the Filing Party, provided,
however, that if any event described in the immediately preceding clause (e)
occurs, no notice shall be required to the Filing Party and this Agreement
shall terminate automatically upon the occurrence of such event without any
further action.
8.7 Termination upon Involuntary Bankruptcy. If a proceeding or case
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is commenced against a party (the "Debtor Party") without the application or
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consent of the Debtor Party and such proceeding or case continues undismissed
for a period of ninety (90) calendar days from and after the commencement of
such proceeding seeking any of the matters set forth in the immediately
following clauses (a) through (c) or if an order, judgment or decree approving
or ordering any of such matters is entered and continues unstayed in effect
for a period of ninety (90) calendar days from and after the date its entry
then, subject to the last sentence of this Section 8.9, the other party shall
have the right to terminate this Agreement at any time after the end of such
ninety (90) day period upon written notice to the Debtor Party: (a)
liquidation, reorganization, dissolution or winding up, or the composition or
readjustment of all or substantially all of the Debtor Party's debts, (b) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Debtor Party or of all or substantially all of the Debtor Party's assets, or
(c) similar relief for the Debtor Party from its debts or readjustment of its
debts under any law relating to bankruptcy, insolvency, reorganization,
winding up or composition or readjustment of debts. Notwithstanding any other
provision of this Section 8.9, if any event described in the immediately
preceding clause (c) occurs, no notice shall be required to the Debtor Party
and this Agreement shall terminate automatically upon the occurrence of such
event without any further action.
8.8 Obligations Upon Termination. Upon any termination of this
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Agreement: (i) each party shall promptly pay the other party unpaid amounts
due as of the termination based on sales of product occurring prior to the
date of termination; and (ii) both Samsung and Lexar shall return or destroy
all copies of the Confidential Information of the other party.
Material has been omitted and filed separately with the Commission.
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8.9 Survival. The following provisions shall survive any
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termination or expiration of this Agreement: 1.2, 7, 8.8, 8.9, 9.2, 10 and 11.
9. Audit and Reports.
9.1 Monthly Reporting. Each month, Samsung shall provide to Lexar a
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report detailing, on a month-by-month basis, its Average Monthly Sales by
Samsung and its Affiliates anywhere in the world during the three (3) prior
calendar months and its good faith, non-binding forecast of Average Monthly
Sales it expects to sell during the present month and for six (6) calendar
months into the future.
9.2 Records and Auditing. Each party shall keep full, true, and
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accurate records and accounts, in accordance with generally-accepted
accounting principles, of each offer or sale of any product, as necessary to
verify compliance with that party's obligations to the other under this
Agreement and the Consignment Contract. Without limiting the generality of the
forgoing sentence or Samsung's obligations pursuant to Section 9.1 above, for
a period of at least four (4) years following each offer to sell or sale of a
NAND Flash Memory Chip or Smart Media, Samsung shall keep full, true, and
accurate records and accounts, in accordance with generally-accepted
accounting principles, of its Average Monthly Sales, but, in any event,
Samsung will keep all such records (including without limitation customer
purchase orders and invoices) that are reasonably required to enable Lexar to
confirm Samsung's compliance with the terms of this Agreement. No more than
two (2) times annually, each party shall make these records and accounts
available to an independent certified public accountant selected by the other
party, but reasonably acceptable to the first party, to determine if the first
party has complied with its obligations under Sections 2 and 3 of this
Agreement. The party being audited shall promptly refund any overpayments made
by the other party as determined by the audit. If the audit reveals an
overpayment of more than five percent (5%) of the amount that should have been
paid by the party conducting the audit, the party being audited shall
reimburse the auditing party all of its reasonable expenses related to the
conduct of the audit.
10. Limitation of Liability.
10.1 General Limitation of Damages. IN NO EVENT SHALL EITHER PARTY BE
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LIABLE FOR LOSS OF USE, DATA OR PROFITS, INTERRUPTION OF BUSINESS OR ANY
SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
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10.2 Severability. EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH
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PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF
DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY
OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS
DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF
LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.
11. General.
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11.1 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California without regard to
conflicts of laws rules or principles, and excluding the United Nations
Convention on Contracts for the International Sale of Goods. All actions
brought by either party arising under or related to this Agreement shall be
brought exclusively in the state and federal courts located in Santa Xxxxx
County, California, and the parties hereby irrevocably consent to personal
jurisdiction and venue therein.
11.2 Injunctive Relief. Each of the parties acknowledges that unauthorized
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disclosure or use of the other party's Confidential Information or
infringement or misappropriation of the other party's intellectual property
rights could cause irreparable harm and significant injury that would be
difficult to ascertain and may not be compensable by damages alone.
Accordingly, the parties agree that, in addition to any and all legal
remedies, each party shall be entitled to seek specific performance,
injunction or other appropriate equitable relief for claims regarding
intellectual property rights or Confidential Information.
11.3 Assignment. Neither party may assign this Agreement without the prior
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written consent of the other, except that Lexar may assign or transfer its
rights and obligations under this Agreement in the course of a merger,
reorganization or acquisition of Lexar or all or substantially all of Lexar's
assets related to the this Agreement without consent by Samsung. Any
assignment permitted hereunder will be subject to the written assent of the
assignee to all of the terms and provisions of this Agreement. Any attempted
assignment in derogation of this section will be null and void.
11.4 Modification and Waiver. No modification to this Agreement, nor any
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waiver of any rights, will be effective unless assented to in writing by the
party to be charged, and the waiver of any breach or default shall not
constitute a waiver of any other right hereunder or any subsequent breach or
default.
11.5 Notices. Any required or permitted notices hereunder must be given in
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writing at the address of each party set forth below, or to such other address
as either party may
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substitute by written notice to the other in the manner contemplated herein.
Notices will be effective upon receipt.
To Lexar: To Samsung:
Lexar Media, Inc. Samsung Electronics, Co., Ltd.
00000 Xxxxxxx Xxxxxxx Xxx #00, Xxxxxxx-Xxx, Xxxxxx-Xxxx
Xxxxxxx, XX 00000 Kyunggi-Do 449-711 Korea
Attention: Legal Department Attention: IP Team
Phone: (000) 000-0000 Phone: 00-00-000-0000
Fax: (000) 000-0000 Fax: 00-00 000-0000
Copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
11.6 Compliance with Law, including U.S. Export Laws. Each party agrees to
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comply with all applicable international, national, state, regional and local
laws and regulations in performing its duties hereunder and in any of its
dealings with respect to the technical information disclosed hereunder or
direct products thereof. Neither party shall export or re-export, directly or
indirectly, any technical information disclosed hereunder or direct products
thereof to any destination prohibited or restricted by the export control laws
and regulations of the United States, including the U.S. Export Administration
Regulations, without the prior authorization from the appropriate governmental
authorities.
11.7 Force Majeure. Neither party shall be responsible for delay or failure
-------------
in performance to the extent caused by any government act, law, regulation,
order or decree, by communication line or power failures beyond its control,
or by fire, flood or other natural disasters, nor shall any such delay or
failure be considered to be a breach of this Agreement, provided that such
party shall use commercially reasonable efforts to resume performance as soon
as reasonably practicable thereafter.
11.8 Counterparts. This Agreement may be executed in multiple counterparts,
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each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
11.9 Independent Contractors. In performing their respective duties under
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this Agreement, each of the parties will be operating as an independent
contractor. Nothing contained herein will in any way constitute any
association, partnership, or joint venture between the parties hereto, or be
construed to evidence the intention of the parties to establish
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any such relationship. Neither party will have the power to bind the other
party or incur obligations on the other party's behalf without the other
party's prior written consent.
11.10 Severability. In the event that it is determined by a court of
------------
competent jurisdiction that any provision of this Agreement is invalid,
illegal, or otherwise unenforceable, such provision will be enforced as nearly
as possible in accordance with the stated intention of the parties, while the
remainder of this Agreement will remain in full force and effect and bind the
parties according to its terms. To the extent any provision cannot be
enforced in accordance with the stated intentions of the parties, such
provisions will be deemed not to be a part of this Agreement.
11.11 Entire Agreement. This Agreement, the Consignment Contract and the
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License Agreement constitute the entire and exclusive agreement between the
parties hereto with respect to the subject matter hereof and supersede any
prior representations, understandings and agreements between the parties with
respect to such subject matter.
12. Board Approval.
12.1 The Agreement is subject to approval by Samsung Board of Directors by
April 17, 2001.
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IN WITNESS WHEREOF, Lexar and Samsung have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
Lexar Media, Inc. Samsung Electronics Co., Ltd.
By:
/s/ Xxxx X. Xxxxxxxx /s/ Yun Xxxxx Xxxx
-------------------- --------------------------------
Xxxx X. Xxxxxxxx Yun Xxxxx Xxxx
Title: Vice President of Technology Licensing Senior Vice President
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Date: March 29, 2001 March 29, 2001
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