EXHIBIT 10.33
JOINT VENTURE TERMINATION AGREEMENT
This Joint Venture Termination Agreement (this "Agreement"), dated and
effective as of September 30, 2002, is among SanDisk Corporation, a Delaware
corporation ("SanDisk"), Photo-Me International, Plc., a corporation organized
under the laws of England and Wales ("PMI"), KIS, S.A.S., a corporation
organized under the laws of France ("KIS"), Photo-Me USA, LLC, a Texas
corporation ("PMUSA"), and DigitalPortal Inc., a Delaware corporation ("DPI"),
and, for purposes of Section 7, Section 8 and Section 9 only, Kevin Donohue.
PMI, KIS, PMUSA and DPI are referenced together in this Agreement for
convenience as "PMI Related Entities" notwithstanding their separate and
independent corporate status.
RECITALS
WHEREAS, SanDisk, PMI, DPI and others not a party hereto have entered into
that certain Series A Preferred Stock Transfer Agreement (the "Stock Transfer
Agreement") of even date herewith whereby, in consideration of PMI entering into
this Agreement, SanDisk has agreed to transfer 12,040,000 shares of DPI Series A
Preferred Stock to Kevin Donohue;
WHEREAS, SanDisk and PMI desire to change their relationship with respect
to their respective ownership in and management of DPI, and, in that regard, to
terminate and amend certain agreements to which they are a party related to such
ownership and management of DPI;
NOW, THEREFORE, for good and valuable consideration and in consideration
of the promises and conditions contained herein and in the Stock Transfer
Agreement, the parties hereto hereby agree as follows:
1. Definitive Agreement. Effective as of the date hereof, the Definitive
Agreement dated August 7, 2000 by and between PMI and SanDisk, as amended (the
"Definitive Agreement"), is hereby terminated and of no further force or effect.
Neither PMI nor SanDisk shall have any further rights or obligations with
respect to each other or to DPI (or to any third party) under the Definitive
Agreement, except for those rights and obligations that expressly survive
termination of the Definitive Agreement by its terms; provided, however, that
the parties hereby agree that the last sentence of Section 10.01 of the
Definitive Agreement shall terminate and shall cease to be of any force and
effect, such that Section 10.01 shall not operate to frustrate the termination
of the Definitive Agreement provided for herein.
2. Stockholders' Agreement. Effective as of the date hereof, the
Stockholders' Agreement dated August 7, 2000 by and among PMI, SanDisk and DPI,
and as amended and restated on April 9, 2001 (the "Stockholders' Agreement"), is
hereby terminated and of no further force or effect. Neither PMI nor SanDisk
shall have any further rights or obligations with respect to each other or to
DPI (or to any third party) under the Stockholders' Agreement, except for those
rights and obligations that expressly survive termination of the Stockholders'
Agreement by its terms.
3. Non-Solicitation Agreement. The parties hereto hereby acknowledge and
confirm that upon termination of the Definitive Agreement pursuant to Section 1
above, the Non-
Solicitation Agreement dated August 7, 2000 by and among PMI, SanDisk and DPI
(the "Non-Solicitation Agreement") automatically terminates pursuant to Section
11 thereof; and therefore the Non-Solicitation Agreement is hereby terminated
and of no further force or effect.
4. Trademark Cross-License Agreement. The parties hereto hereby
acknowledge and confirm that upon termination of the Definitive Agreement
pursuant to Section 1 above, the Trademark Cross-License Agreement dated August
7, 2000 by and among PMI, KIS, PMUSA, SanDisk and DPI (the "Trademark
Agreement") automatically terminates pursuant to Article 11 Section 2 thereof;
and therefore the Trademark Agreement is hereby terminated and of no further
force or effect. SanDisk shall immediately cease to use any of the DPI Marks (as
defined in the Trademark Agreement) and the PMI Marks (as defined in the
Trademark Agreement) as of the date hereof, and shall not hereafter use any of
the DPI Marks or the PMI Marks. Each of DPI, PMI, KIS and PMUSA shall
immediately cease to use any of the SanDisk Marks (as defined in the Trademark
Agreement) as of the date hereof, and shall not hereafter use any of the SanDisk
Marks.
5. Voting Trust Agreement. SanDisk hereby agrees to use its reasonable
commercial efforts to cause Mr. Eli Harari to resign as a Voting Trustee under
the Voting Trust Agreement dated as of April 9, 2001 by and among DPI and the
other parties thereto (the "Voting Trust Agreement"). SanDisk further hereby
permanently waives its right to appoint any Voting Trustee under the Voting
Trust Agreement pursuant to Section 8 thereof.
6. Expenses; Guarantees; Employee Benefits. Except as set forth in the
second sentence of this Section 6, the parties hereto agree that SanDisk shall
not be liable for and shall not have any obligation to fund any expenses
incurred by DPI whatsoever. Notwithstanding the foregoing, SanDisk hereby agrees
to fund 50% of the operating expenses of DPI incurred during the fiscal quarter
ended March 31, 2002, up to an aggregate maximum total liability for SanDisk of
$80,160. The parties hereto agree that, after the date hereof, SanDisk shall
have no obligation to bear or pay any expenses incurred by or for the account of
DPI or to guarantee or to continue to guarantee any financing of the purchase or
lease of units of Product (as defined in the Definitive Agreement) pursuant to
Section 1.02(a) of the Definitive Agreement or otherwise. As of October 1, 2002,
SanDisk shall not be responsible for any DPI employee benefit matters. After
December 31, 2002, SanDisk shall have no further obligation to provide payroll
support services to DPI.
7. General Release to SanDisk.
(a) For the consideration set forth herein and in the Stock Transfer
Agreement, and for other due and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, each of Kevin Donohue, PMI, KIS,
PMUSA and DPI, and their respective officers, directors, employees and agents,
for and on behalf of themselves and on behalf of their respective affiliates,
successors, assigns, agents and representatives (collectively, the "PMI
Affiliates") waive and finally release and forever discharge SanDisk and each of
SanDisk's officers, directors, stockholders, affiliates, agents, subsidiaries
including, without limitation, DPI, and including officers and directors of
subsidiaries, including, without limitation, DPI, representatives, employees,
successors and assigns (collectively, the "SanDisk Released Parties") from any
and all claims, causes of action, suits, debts, demands, costs, expenses,
attorneys' fees,
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contracts, agreements, payments, compensation, liabilities or obligations,
contingent or fixed, liquidated or unliquidated, matured or unmatured, of every
name and nature, known or unknown, arising or which may have existed from the
beginning of the world to the date hereof against any such person, excluding
therefrom only the obligations of SanDisk hereunder or in the Stock Transfer
Agreement (hereinafter collectively referred to as the "SanDisk Released
Claims").
(b) Each of PMI, DPI and the other PMI Affiliates for and on behalf of
themselves and on behalf of their respective affiliates, successors, assigns,
agents and representatives covenants not to sue or otherwise institute or cause
to be instituted or in any way participate in any legal, administrative or other
proceeding or action against any of the SanDisk Released Parties with respect to
any matter of any kind arising out of the SanDisk Released Claims.
(c) PMI, DPI and the other PMI Affiliates have entered into this Agreement
based on their own investigation and analysis and that of their attorneys and
expressly assume the risk that facts may be unknown to or not understood by
them. On entering into this release, PMI, DPI and the other PMI Affiliates are
not relying upon any representation or warranty of SanDisk or its agents or
representatives other than as set forth in this Agreement or the Stock Transfer
Agreement.
(d) PMI, DPI and the other PMI Affiliates acknowledge that this waiver and
release extends to all claims of every nature and kind, known or unknown,
suspected or unsuspected, made by any of PMI, DPI or the other PMI Affiliates in
the past, present or future arising from the SanDisk Released Claims, and any
and all rights granted to them under Section 1542 of the California Civil Code
or any analogous law or rule of any country other than the U.S. or U.S. state or
federal law or regulation are hereby expressly waived. Said Section 1542 of the
Civil Code of the State of California reads 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."
(e) This Section 7 shall constitute a complete defense to any claim
released herein and shall survive indefinitely, without restriction,
qualification or limitation, notwithstanding anything in this Agreement to the
contrary.
8. General Release to PMI Related Entities.
(a) For the consideration set forth herein and in the Stock Transfer
Agreement, and for other due and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, SanDisk and its officers,
directors, employees and agents, for and on behalf of themselves and on behalf
of their respective affiliates, successors, assigns, agents and representatives
(collectively, the "SanDisk Affiliates") waive and finally release and forever
discharge the PMI Related Entities and each of the PMI Related Entities'
respective officers, directors, stockholders, affiliates, agents, subsidiaries
including, without limitation, PMI, KIS,
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PMUSA, DPI and Kevin Donohue, and including officers and directors of
subsidiaries, including, without limitation, PMI, KIS, PMUSA, DPI, Kevin
Donohue, representatives, employees, successors and assigns (collectively, the
"PMI Released Parties") from any and all claims, causes of action, suits, debts,
demands, costs, expenses, attorneys' fees, contracts, agreements, payments,
compensation, liabilities or obligations, contingent or fixed, liquidated or
unliquidated, matured or unmatured, of every name and nature, known or unknown,
arising or which may have existed from the beginning of the world to the date
hereof against any such person, excluding therefrom only the obligations of the
PMI Released Parties hereunder or in the Stock Transfer Agreement (hereinafter
collectively referred to as the "PMI Related Entities Released Claims").
(b) SanDisk for and on behalf of itself and on behalf of its affiliates,
successors, assigns, agents and representatives covenants not to sue or
otherwise institute or cause to be instituted or in any way participate in any
legal, administrative or other proceeding or action against any of the PMI
Released Parties with respect to any matter of any kind arising out of the PMI
Related Entities Released Claims.
(c) SanDisk has entered into this Agreement based on its own investigation
and analysis and that of its attorneys and expressly assumes the risk that facts
may be unknown to or not understood by it. On entering into this release,
SanDisk is not relying upon any representation or warranty of the PMI Related
Entities or their agents or representatives other than as set forth in this
Agreement or the Stock Transfer Agreement.
(d) SanDisk acknowledges that this waiver and release extends to all
claims of every nature and kind, known or unknown, suspected or unsuspected,
made by SanDisk or any SanDisk Affiliate in the past, present or future arising
from the PMI Related Entities Released Claims, and any and all rights granted to
them under Section 1542 of the California Civil Code or any analogous law or
rule of any country other than the U.S. or U.S. state or federal law or
regulation are hereby expressly waived. Said Section 1542 of the Civil Code of
the State of California reads 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."
(e) For the consideration set forth herein and in the Stock Transfer
Agreement, and for other due and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, SanDisk, DPI, PMI, PMUSA and KIS,
waive and finally release and forever discharge Kevin Donohue from any and all
claims, causes of action, suits, debts, demands, costs, expenses, attorneys'
fees, contracts, agreements, payments compensation, liabilities or obligations,
contingent or fixed, liquidated or unliquidated, matured or unmatured, of every
name and nature, known or unknown, arising or which may have existed from the
beginning of the world to the date hereof against any such person to the extent
such actions arose from conduct performed in the ordinary course of their
business employment and/or duties on behalf of DPI.
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(f) This Section 8 shall constitute a complete defense to any claim
released herein and shall survive indefinitely, without restriction,
qualification or limitation, notwithstanding anything in this Agreement to the
contrary.
9. Indemnity.
(a) Each of PMI, KIS, PMUSA and DPI, jointly and severally, hereby agree
to indemnify and hold harmless SanDisk against any costs, expenses (excluding
attorneys' fees), judgments, fines, losses, claims, damages, liabilities or
amounts paid in settlement asserted against, resulting from, imposed upon or
incurred or suffered by SanDisk in connection with any claim, action, suit,
proceeding or investigation, arising out of or related to any actions, debts or
obligations of any of PMI, KIS, PMUSA or DPI born after the date hereof,
September 30, 2002.
(b) DPI hereby agrees to indemnify and hold harmless Kevin Donohue against
any costs, expenses, judgments, fines, losses, claims, damages, liabilities or
amounts paid in settlement asserted against, resulting from, imposed upon or
incurred or suffered by Kevin Donohue in connection with any claim, action,
suit, proceeding or investigation, arising out of or related to any actions,
debts or obligations of any of PMI, KIS, PMUSA or DPI born after the date
hereof, September 30, 2002, and which is directed to any conduct performed by
Kevin Donohue in the ordinary scope and course of his business employment and/or
duties on behalf of DPI. There shall be no indemnification for Kevin Donohue for
conduct by him performed outside the ordinary scope and course of his business
employment and/or duties on behalf of DPI.
10. Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties.
11. Amendment. This Agreement may be amended only with the written consent
of all parties hereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
13. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of California.
14. Expenses. Each party hereto agrees that it will bear its own costs and
expenses in connection with the negotiation, execution, delivery and performance
of this Agreement.
15. Entire Agreement. This Agreement and the Stock Transfer Agreement
constitute the entire agreement among the parties with respect to the matters
contained herein or therein, except as expressly set forth herein or therein.
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16. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this Joint Venture
Termination Agreement as of the date first written above.
SANDISK CORPORATION
By: /s/ Eli Harari
-----------------------------------
Name: Eli Harari
Title: President
PHOTO-ME INTERNATIONAL, PLC.
By: /s/ Serge Crasnianski
-----------------------------------
Name: Serge Crasnianski
Title: Chief Executive Officer
KIS, S.A.S.
By: /s/ Serge Crasnianski
-----------------------------------
Name: Serge Crasnianski
Title: Chief Executive Officer
PHOTO-ME USA, LLC
By: /s/ Matthew Carter
-----------------------------------
Name: Matthew Carter
Title: Finance Officer
DIGITALPORTAL INC.
By: /s/ K.R. Donohue
-----------------------------------
Name: K.R. Donohue
Title: President and CEO
KEVIN DONOHUE, Individually
/s/ Kevin Donohue
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Signature page to Joint Venture Termination Agreement