CONFIDENTIAL TREATMENT REQUESTED
DEVELOPMENT, MANUFACTURING AND LICENSE AGREEMENT
This DEVELOPMENT, MANUFACTURING AND LICENSE AGREEMENT (this "AGREEMENT") is
entered into as of September 1, 1999 (the "EFFECTIVE DATE") by and between
OVERLAND DATA, INC., a California corporation with offices at 8975 Balboa
Avenue, San Diego, CA 92123-1599 ("OVERLAND"), and TECMAR TECHNOLOGIES, INC., a
Delaware corporation with offices at 1900 Pike Road, Bldg. E, Longmont, CO 80501
("TECMAR"). Overland and Tecmar are referred to collectively herein as the
"PARTIES."
RECITALS
WHEREAS, Overland has developed, and owns intellectual property and proprietary
rights in and to a data encoding and decoding channel technology for linear
magnetic tape formats; and
WHEREAS, Tecmar has developed and owns certain technology, intellectual property
and proprietary rights relating to the Tecmar Travan NS20 drives; and
WHEREAS, Tecmar desires to contribute and/or provide access to its technology,
intellectual property and proprietary rights in the Tecmar Travan NS20 drives to
facilitate development of a Overland/Tecmar common platform for the next
generation Travan tape drive; and
WHEREAS, Overland desires, at its sole cost and expense, to integrate its
channel technology with Tecmar's contributed Travan NS20 technology to develop
the Overland/Tecmar common platform for the next generation Travan tape drive;
and
WHEREAS, each of Overland and Tecmar, after exploring available alternatives,
have determined that, in view of the development of an Overland/Tecmar common
platform for the next generation Travan tape drive, each party will receive
sufficient and appropriate value as a result of a mutual exchange of source
code, technology, and license grants under each party's intellectual property
rights; and
WHEREAS, each of Overland and Tecmar desire to subcontract the manufacture of
such next generation Travan drives to a single third party manufacturer and to
purchase and resell such drives from such manufacturer; and
WHEREAS, Overland is willing to grant a license under its channel technology to
Tecmar on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
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1. DEFINITIONS. As used in this Agreement:
"AFFILIATE" of a party means any company that directly or indirectly
controls, is controlled by, or is under common control with such party.
"ASIC" means an application specific integrated circuit.
"DELIVERABLES" means the technology, information and other items listed
in EXHIBIT A pursuant to the Development Program undertaken pursuant to
this Agreement.
"DEVELOPMENT PROGRAM" means the research, development, design, pilot
production, validation and manufacturing activities of the Parties
pursuant to the Project Schedule commencing on the Effective Date and
ending on ***.
"MILESTONES" means determined significant events during the course of the
Project Schedule as set forth in EXHIBIT B.
"NEXT GENERATION TRAVAN DRIVE" means tape drive(s) whose specification
will be developed by the Parties pursuant to the Development Program as
set forth in EXHIBIT A and which read and write data onto future
generations of Travan (i) GB cartridges or (ii) NS cartridges.
"NEXT GENERATION TRAVAN VR(2) ASIC" means an ASIC embodying the VR(2)
Technology, which is a modification of existing ASIC designs of Overland
specifically adapted for incorporation into Next Generation Travan
Drives, such ASIC specification(s) to be developed by Overland and set
forth in EXHIBIT E for each Next Generation Travan Drive set forth in
EXHIBIT A.
"OTHER FUTURE DRIVES" means tape drive(s): (i) developed in whole or
in part by either Party; (ii) using a Travan or other linear recording
belt-driven cartridge wherein the tape path resides entirely within
such cartridge; (iii) which incorporates a Next Generation Travan VR(2)
ASIC or any other ASIC sold by Overland which incorporates Overland IP
(as defined in SECTION 4.1).
"OVERLAND PATENT RIGHTS" means all issued patents and patent applications
listed in EXHIBIT C that are pending as of the Effective Date, and all
counterparts, continuations, continuations-in-part, divisionals,
provisionals or reissues or extensions thereof, and any other patent
applications filed by Overland or any Affiliate of Overland before or
during the term of this Agreement relating to the VR(2) Technology,
including any and all patents issuing therefrom.
"PROJECT SCHEDULE" means the schedule for the Development Program as set
forth in EXHIBIT B.
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"RESULTS" means any and all inventions, discoveries, technology, trade
secrets, ideas, data, processes, methods, and techniques, whether or not
patentable, including any improvements or modifications thereof, and all
patents, patent applications, trade secrets, and other proprietary rights
appurtenant thereto, which are made, created, or reduced to practice in
the course of development of the Development Program.
"TECMAR KNOW-HOW" means all inventions, discoveries, technology, trade
secrets, ideas, data, processes, methods, techniques, and any other
information Tecmar owns, controls, or has a license to (with the right to
sublicense), relating to the Tecmar Travan NS20 drive.
"TECMAR PATENT RIGHTS" means all issued patents and patent applications
listed in EXHIBIT D that are pending as of the Effective Date, and all
counterparts, continuations, continuations-in-part, divisionals,
provisionals or reissues or extensions thereof, and any other patent
applications filed by Tecmar or any Affiliate of Tecmar before or during
the term of this Agreement that relate to the Tecmar Travan NS20 drive,
including any and all patents issuing therefrom.
"VR(2) TECHNICAL INFORMATION" means information and know-how provided by
Overland relating to VR(2) Technology and the manufacture, engineering
and use of the VR(2) Technology, including without limitation the
following: manufacturing, engineering and circuit drawings, parts and
test specifications, test set drawings, schematics and documents,
development documents, systems specifications, quality assurance plans,
engineering technical practices, software, training and course
materials, vendor listings, and systems engineering applications.
"VR(2) TECHNOLOGY" means the data encoding and decoding channel
technology for linear magnetic tape formats developed by Overland, and
includes solid state circuits embodied in semiconductor chips,
associated specifications, designs, drawings, data, test qualification,
and other documented technical and application information related
thereto.
2. DEVELOPMENT PROGRAM
2.1 JOINT DEVELOPMENT. Overland and Tecmar agree to use commercially
reasonable efforts to conduct and/or have conducted the Development Program with
the objective of developing and commencing the manufacture of commercial volumes
of each Next Generation Travan Drive set forth in EXHIBIT A in accordance with
the Project Schedule set forth in EXHIBIT B. The responsibilities, Milestones
and Deliverables of each party in performing the Development Program will be as
set forth in the Project Schedule and EXHIBIT B. Each party will furnish to the
other party its respective Deliverables and Milestones at such times as set
forth in the Project Schedule.
2.2 MANAGEMENT. Overland, in its sole discretion, will manage any and
all activities of any Overland employees relating to the Development Program
with the objective of achieving
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the Milestones and Deliverables as specified in the Project Schedule. Tecmar
will manage any and all activities of any Tecmar employees relating to the
Development Program with the objective of achieving the Milestones and
Deliverables as specified in the Project Schedule. Tecmar acknowledges and
agrees that (i) Overland, in its sole discretion, will have sole and
exclusive management control of the Development Program; (ii) within five (5)
business days following execution of this Agreement, Overland, in its sole
discretion, will appoint a program manager ("DEVELOPMENT PROGRAM MANAGER") to
manage the Development Program; (iii) within five (5) business days following
the execution of this Agreement, Tecmar, in its sole discretion, will appoint
a program manager ("TECMAR MANAGER") to manage the activities of Tecmar
employees related to the Development Program; and (iv) the Tecmar Manager
will report directly to the Development Program Manager and use his best
efforts to execute the instructions of the Development Program Manager
relating to the Development Program. During the term of this Agreement,
Tecmar will use its best efforts to timely deliver such documents and
information or instructions as the Development Program Manager may reasonably
request in order for Overland to perform its obligations pursuant to this
Agreement. Upon the reasonable request of the Tecmar Manager, the
Development Program Manager, in his reasonable judgment, may deliver such
documents or information requested, provided that such documents or
information requested by the Tecmar Manager will not be unreasonably withheld.
2.3 RESOURCES. Within 10 business days following a written request
from Overland or as otherwise agreed to by the Parties, Tecmar will make
available to Overland or otherwise provide Overland with access to any and all
documents, specifications, designs, schematics, manufacturing process
instructions, drive testing and performance, and other information relating to
the Tecmar Know-How which is deemed necessary in the reasonable discretion of
the Development Program Manager to conduct the Development Program. As of the
date hereof, Tecmar has provided to Overland sufficient information relating to
the qualifications of each of its engineering personnel most familiar with the
Tecmar Know-How ("TECMAR ENGINEERS"). The Tecmar Manager, in his reasonable
discretion, will assign appropriate Tecmar Engineers as set forth in the Project
Schedule ("PROGRAM ENGINEERS") to conduct the Development Program. Each of the
Program Engineers will (i) remain Tecmar employees at all times and (ii) conduct
significant Development Program activities in the Tecmar facility located in
Longmont, Colorado. Overland, in its sole discretion, will assign a sufficient
number of its engineers to successfully conduct the Development Program.
2.4 TERMINATION OF DEVELOPMENT PROGRAM. Notwithstanding anything to
the contrary in this Agreement, if (a) prior to or on ***, each of the
Milestones of the Project Plan is not successfully completed on or before its
scheduled date, or (b) the specification(s) for each of the Next Generation
Travan Drives set forth in EXHIBIT A are not completed, in the reasonable
discretion of Overland, by ***, then Tecmar acknowledges and agrees that
Overland may, in its sole discretion, terminate the Development Program at any
such time by delivery of fifteen (15) calendar days prior written notice of
termination to Tecmar .
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2.5 NO GUARANTEE OF SUCCESS. Tecmar acknowledges and agrees that
Overland does not guarantee, represent or otherwise warrant that the Development
Program will be completed successfully, or that any information, know-how and/or
technology provided by Overland to conduct the Development Program will enable
Overland and/or the Parties to successfully complete and/or deliver any
Milestones and/or Deliverables under this Agreement, or that the performance
and/or delivery of any Milestones and/or Deliverables under this Agreement will
result in the successful development of any commercial product, including any
Next Generation Travan Drive. Overland acknowledges and agrees that Tecmar does
not guarantee, represent or otherwise warrant that any information, know-how
and/or technology provided by Tecmar to conduct the Development Program will
enable Tecmar and/or the Parties to successfully complete and/or deliver any
Milestones and/or Deliverables under this Agreement or will result in the
successful development of any commercial product, including any Next Generation
Travan Drive. Each party assumes the risk that the Development Program will not
(i) meet the market expectations, (ii) result in any commercially profitable
products or components, or (iii) produce any useful results.
2.6 EMPLOYEES. Each party agrees not to offer employment to any
employee of the other party without the prior written approval of the other
party during the term of this Agreement and for a period of one (1) year
following termination of this Agreement, PROVIDED, HOWEVER, that either party
may immediately offer employment to any employee of the other party (i)
following any termination of this Agreement for breach of warranty or material
breach in accordance with SECTION 9.3; or (ii) upon any termination of
employment, layoff or other release of such employee by the other party.
2.7 SOURCE CODE. Upon execution of this Agreement, Tecmar will
promptly deliver to Overland a complete and accurate copy of the firmware
source code for its Travan NS20 tape drive ("TECMAR SOURCE CODE"). Upon
execution of this Agreement, Overland will promptly deliver to Tecmar a
complete and accurate copy of the VHDL source code for its VR(2) switching
circuit that selects one of four decoder outputs ("OVERLAND SOURCE CODE").
Tecmar hereby grants to Overland a *** license under the Tecmar Source Code
to (i) conduct the Development Program and otherwise practice any technology
embodied in the Tecmar Source Code pursuant to this Agreement; (ii) make (or
have made), import, use, offer for sale, sell, import, distribute, copy,
reproduce, publish, make derivative works, license or otherwise dispose of
any portion of the Tecmar Source Code as part of a Next Generation Travan
Drive or Other Future Drive; and (iii) sublicense to third-party
manufacturers the rights granted to Overland under clauses (i) and (ii),
provided that such third party manufacturers agree to be bound by any
applicable terms and conditions of this Agreement. Overland hereby grants to
Tecmar a *** license under the Overland Source Code to (a) conduct the
Development Program and otherwise practice any technology embodied in the
Overland Source Code pursuant to this Agreement; (b) make (or have made),
import, use, offer for sale, sell, import, distribute, copy, reproduce,
publish, make derivative works, license or otherwise dispose of any portion
of the Overland Source Code as part of a Next Generation Travan Drive or
Other Future Drive; and (c) sublicense to third-party manufacturers the
rights granted to Tecmar under clauses (a) and (b), provided that such third
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party manufacturers agree to be bound by any applicable terms and conditions
of this Agreement. Each of Overland and Tecmar will be subject to the
non-disclosure obligations of SECTION 6.2 with respect to the Tecmar Source
Code and the Overland Source Code, respectively.
2.8 SOURCE CODE LICENSE FEE. Overland will pay to Tecmar a fee of
$*** ("SOURCE CODE LICENSE FEE") to obtain a *** license under the Tecmar Source
Code. Overland will pay the Source Code License Fee to Tecmar in five equal
installments of $*** ("INSTALLMENT PAYMENT"). Each such Installment Payment
will be due and payable ***, PROVIDED, HOWEVER, that Overland, in its sole
discretion, may pay to Tecmar any remaining amounts of the Source Code License
Fee at any time following the Effective Date.
3. MANUFACTURING
3.1 SELECTION OF CONTRACT MANUFACTURER. The Parties will negotiate in
good faith to jointly agree on and select a contract manufacturer ("CONTRACT
MANUFACTURER") to fabricate each Next Generation Travan Drive resulting from a
successful completion of the Development Program. The Parties will negotiate in
good faith to enter into a supply agreement ("SUPPLY AGREEMENT") with the
Contract Manufacturer to manufacture and supply each such Next Generation Travan
Drives to each of Overland and Tecmar at the same cost.
3.2 LICENSES AND TECHNOLOGY TRANSFER. The Supply Agreement will
include the terms and conditions under which each of Overland and Tecmar will
grant licenses to the Contract Manufacturer under the Overland Patent Rights and
the Tecmar Patent Rights, respectively, and under the Results, only to the
extent any such patent rights and/or Results are needed by the Contract
Manufacturer to manufacture and sell such Next Generation Travan Drives solely
and exclusively to each of Overland and Tecmar. The Contract Manufacturer will
purchase from Overland all of its requirements for Next Generation Travan VR(2)
ASICs for incorporation into such Next Generation Travan Drives.
4. OWNERSHIP AND LICENSE GRANTS
4.1 OVERLAND OWNERSHIP. All right, title and interest in and to
the Overland Patent Rights, VR(2) Technical Information, VR(2) Technology,
any and all Results relating to the VR(2) Technical Information or the VR(2)
Technology, and any and all intellectual property embodied in the Next
Generation Travan VR(2) ASIC ("OVERLAND IP") and any and all inventions,
improvements or modifications relating thereto will be solely owned by
Overland. Tecmar will at no time acquire or retain, or appropriate for its
own use, any right, title or interest in or to any of the Overland IP.
Tecmar will not take any action that might impair in any way any right, title
or interest of Overland in or to any of the Overland IP, but will undertake
such reasonable efforts and execute and deliver such documents or
instructions as Overland may request in order for Overland to perfect,
maintain, or enforce any exclusionary rights under such Overland IP.
4.2 TECMAR OWNERSHIP. All right, title and interest in and to the
Tecmar Know-How and Tecmar Patent Rights ("TECMAR IP") and any and all
inventions, improvements or
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modifications relating thereto will be solely owned by Tecmar. Overland will
at no time acquire or retain, or appropriate for its own use, any right,
title or interest in or to any of the Tecmar IP. Overland will not take any
action that might impair in any way any right, title or interest of Tecmar in
or to any of the Tecmar IP, but will undertake such reasonable efforts and
execute and deliver such documents or instructions as Tecmar may request in
order for Tecmar to perfect, maintain, or enforce any exclusionary rights
under such Tecmar IP.
4.3 JOINT OWNERSHIP. Except for such Results relating to the VR(2)
Technical Information or the VR(2) Technology, which ownership will remain
solely and exclusively in Overland pursuant to SECTION 4.1, all right, title
and interest in and to the Results and any and all inventions, improvements
or modifications related thereto will be jointly owned by Overland and
Tecmar. The Parties acknowledge and agree that (i) each party may, in its
sole discretion, dispose of any such right, title and interest in and to the
Results and (ii) each party will not take any action that might impair in any
way any right, title or interest of the other party in or to any of the
Results and any and all inventions, improvements or modifications related
thereto. The Parties will confer with each other regarding the prosecution
of jointly owned patent applications, and will endeavor to ensure that all
such applications are jointly filed before any public disclosure of the
discovery or invention claimed by the application. The Parties will share
the costs and expenses of prosecuting such patent applications equally and
will provide each other with periodic reports regarding the status of such
applications. If one party elects not to file or pursue prosecution of a
patent application, the other party will have the right to pursue, at its
sole cost and expense, such application, and the non-filing party will
cooperate in all reasonable respects therewith.
4.4 LICENSES. Tecmar hereby grants to Overland a *** license under
all of the Tecmar IP to (i) conduct the Development Program and otherwise
practice the technology embodied in any such Tecmar IP pursuant to this
Agreement; (ii) make (or have made), import, use, offer for sale and sell
Next Generation Travan Drives and Other Future Drives and any and all
components thereof; and (iii) sublicense to third-party manufacturers the
rights granted to Overland under clauses (i) and (ii), provided that such
third party manufacturers agree to be bound by any applicable terms and
conditions of this Agreement. The term of this license will run from ***.
Overland hereby grants to Tecmar a *** license under all of the Overland IP
(a) to conduct the Development Program; (b) to make (or have made), import,
use, offer for sale and sell Next Generation Travan Drives and Other Future
Drives incorporating a Next Generation Travan VR(2) ASIC; and (c) to make (or
have made), import, use, offer for sale and sell components of such Next
Generation Travan Drive and Other Future Drives, except for such components,
singly or in combination, which perform or otherwise provide one or more
functions substantially similar to those of a Next Generation Travan VR(2)
ASIC. Tecmar acknowledges and agrees that no right or license is granted by
Overland under any portion of any Overland IP to (x) make (or have made),
import, use, offer for sale or sell Next Generation Travan VR(2) ASICs; or
(y) design, make (or have made), import, use, offer for sale or sell one or
more ASICs compatible with a Next Generation Travan VR(2) ASIC; or (z)
design, make (or have made), import, use, offer for sale or sell any
components or circuitry, singly or in combination,
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which perform or otherwise provide one or more functions substantially
similar to those of a Next Generation Travan VR(2) ASIC. Prior to or
concurrent with the execution of the Supply Agreement with the Contract
Manufacturer, the Parties agree to negotiate in good faith the terms and
conditions of an amendment to the TRAVAN-TM- VR(2) ASIC SUPPLY AGREEMENT dated
as of June 1, 1999, by and between Overland and Tecmar ("ASIC SUPPLY
AGREEMENT") wherein Overland agrees to supply Next Generation Travan VR(2)
ASICs required by Tecmar to manufacture and sell Next Generation Travan
Drives and Other Future Drives, PROVIDED, HOWEVER, that the royalty paid by
Tecmar for the four channel or one channel Next Generation Travan VR(2) ASIC
***. The term of this license will run from ***. Overland acknowledges and
agrees that the license grants of this SECTION 4.4 will not enable Overland
to apply the licensed technology to any single cartridge Travan NS20 tape
drive or any other tape drive product manufactured by or for and sold by
Tecmar as of the Effective Date.
4.5 RECORDS. Each party will keep complete and accurate records of
(i) any and all Results and (ii) its research and development projects with
respect to the Development Program. Each party will make such records available
to the other party upon request, subject to the confidentiality provisions in
ARTICLE 6.
4.6 FURTHER ASSURANCES. Each party will assist the other party, as
the other party may request, in securing the other party's rights as set forth
in this Agreement (it being understood that the party requesting such assistance
will reimburse the other party for any reasonable out-of-pocket costs incurred
by the other party in providing the requested assistance). Without limiting the
generality of the foregoing, each party will, at the other party's request,
execute and deliver any documents deemed necessary by the other party to
effectuate an assignment of rights under this Agreement or to enforce any rights
so assigned.
5. FUNDING
5.1 DEVELOPMENT FUNDING. Overland, at its sole cost and expense, will
provide the entire funding needed to conduct the Development Program. Within
***, Overland will pay, in advance, to Tecmar a fee of $*** per month ("INITIAL
ENGINEERING SERVICES FEE") for such month. Within ***, Overland will pay, in
advance, to Tecmar a fee of $*** per month ("REMAINING ENGINEERING SERVICES
FEE") for such month. In exchange for payment of such Initial and Remaining
Engineering Service Fees, the Program Engineers will conduct, perform and
deliver any and all engineering and design tasks necessary to conduct the
Development Program. Tecmar acknowledges and agrees that it may not subcontract
or otherwise delegate any engineering and/or design tasks pursuant to the
Development Program, except as approved by the Development Program Manager.
Overland will reimburse Tecmar for all of the reasonable costs and expenses
Tecmar incurs relating to the Development Program, including any development
materials or other reasonable expenses directly related to the Development
Program as set forth in EXHIBIT F, provided that (i) Tecmar receives the prior
written approval of the Development Program Manager prior to incurring any
amounts for such materials or expenses and (ii) the actual incurred amounts do
not exceed the approved amounts for such materials or expenses.
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5.2 MANUFACTURING START-UP FUNDING. Each of Overland and Tecmar will
equally share the reasonable costs and expenses of manufacturing start-up
directly related to the fabrication of any Next Generation Travan Drives by the
Contract Manufacturer.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. For purposes of this Agreement, the
Deliverables, Overland Know-How, Tecmar Know-How, Project Schedule, Results,
VR(2) Technical Information, VR(2) Technology, and any other information and
materials that are disclosed by one party to the other party in writing and
clearly and conspicuously marked "confidential" or "proprietary" will be
considered "Confidential Information" of the disclosing party. Each party
will return the other party's Confidential Information, except for the
Results which are jointly owned by the Parties, upon the other party's
request and, in any event, upon the expiration or termination of this
Agreement.
6.2 NON-USE AND NON-DISCLOSURE. Each party will use the other party's
Confidential Information only for the purposes contemplated and permitted by
this Agreement. Neither party will disclose the other party's Confidential
Information to any third party except as may be required (i) by court order
(provided that the party subject to such court order gives prompt written notice
thereof to the party whose Confidential Information will be disclosed and
cooperates in any motion or action to prevent or limit the required disclosure)
and (ii) pursuant to any discovery obligations in litigation provided that a
mutually agreeable protective order has been entered by the court. Each party
further agrees to protect the other party's Confidential Information from
unauthorized use or disclosure in the same manner as it protects its own similar
Confidential Information (but in no event with less than reasonable care), and
to limit access to the other party's Confidential Information to only those of
its employees and agents who need such access for purposes contemplated by this
Agreement. However, the obligations in this SECTION 6.2 will not apply to any
information which is (a) presently publicly available, except as disclosed in
violation of this Agreement; or (b) lawfully received by any party from a third
party who is or who was not bound in a confidential relationship to the other
party; or (c) already properly and lawfully in possession of any party prior to
the date of this Agreement or the date of its disclosure, or information known
by any party prior hereto or which any party acquires during the term of this
Agreement by reason of its other business activities, regardless of its
incorporation into confidential information of the type described above; or (d)
required by law or governmental regulation or necessary for the purpose of
enforcement of this Agreement.
6.3 TERMS OF THIS AGREEMENT. Neither party will disclose the terms of
this Agreement to any third party other than its attorneys and accountants
without the other party's prior written consent except (a) as may be required by
law, (b) pursuant to any applicable Securities and Exchange Commission ("SEC")
or other foreign governmental securities regulatory entity filing rules,
regulations and/or requirements or (c) in connection with a proposed sale of
such party's business (whether by merger, sale of assets, sale of stock or
otherwise), provided that appropriate confidentiality agreements are signed by
the firms or
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persons reviewing this Agreement. If a party, pursuant to 6.3 (b) above,
desires to so disclose any term of this Agreement, the disclosing party (x)
will provide 15 days written notice to the other party of its intent to
disclose and (y) will make application to the SEC or other foreign
governmental securities regulatory entity for confidential treatment, as
applicable, of certain portions of the Agreement as agreed to by the parties
unless the disclosing party provides a written opinion of counsel addressed
to the other party that disclosure of such certain portions is mandatory
under applicable SEC or foreign governmental securities regulatory entity
rules and regulations and that filing of such a request for confidential
treatment would be improper. However, the Parties may disclose information
referring to the existence of this Agreement and that it relates to the
development of a Next Generation Travan Drive.
7. REPRESENTATIONS AND WARRANTIES
7.1 ***
7.2 BY OVERLAND. Provided that ***, Overland represents and warrants
to Tecmar that:
(a) the execution, delivery and performance of this Agreement
by Overland have been duly authorized by all corporate
action on the part of Overland;
(b) Overland has full right, power and authority to enter into
and perform its obligations under this Agreement and to
grant the licenses to Tecmar in this Agreement, and the
execution, performance and operation of this Agreement
do not and will not violate, conflict with, or result in
a breach of any order to which Overland is subject or
agreement to which Overland is a party;
(c) EXHIBIT C contains a complete and accurate list of the
Overland Patent Rights as of the Effective Date; and
(d) except as provided in SECTION 7.1, no consent, approval or
authorization of, or filing, registration or qualification
with, any governmental authority or any other person is
required on the part of Overland in connection with the
execution, delivery and performance of this Agreement.
7.3 BY TECMAR. Provided that ***, Tecmar represents and warrants to
Overland that:
(a) the execution, delivery and performance of this Agreement
by Tecmar have been duly authorized by all corporate action
on the part of Tecmar;
(b) Tecmar has full right, power and authority to enter into
and perform its obligations under this Agreement and to
grant the licenses to Overland in this Agreement, and the
execution, performance and operation of this Agreement do
not and will not violate, conflict with, or result in a
breach of any order to which Tecmar is subject or
agreement to which Tecmar is a party;
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(c) any and all information provided by Tecmar relating to the
Tecmar Engineers is complete, accurate and does not contain
any untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements made therein, in the light
of the circumstances under which they were made, not
misleading;
(d) to the best of Tecmar's knowledge after inquiry, none of
the Program Engineers has any plans to terminate employment
with Tecmar as of the Effective Date; and
(e) except as provided in SECTION 7.1, no consent, approval or
authorization of, or filing, registration or qualification
with, any governmental authority or any other person is
required on the part of Tecmar in connection with the
execution, delivery and performance of this Agreement.
8. INDEMNIFICATION
8.1 BY OVERLAND. Overland will indemnify and hold harmless Tecmar
and its directors, officers, employees, agents, successors and assigns from
and against any and all liability, damages, losses, claims, demands, actions,
judgments, costs, attorneys' fees, disbursements and expenses incurred in
connection with any action, claim or demand against Tecmar (i) based upon or
arising from an allegation that the use, offer for sale or sale by Tecmar of
a Next Generation Travan VR(2) ASIC as a component of a Next Generation
Travan Drive developed pursuant to this Agreement (except to the extent
attributable to the Tecmar Know-How and Tecmar Patent Rights furnished to
Overland by Tecmar) infringes upon or misappropriates any patent, copyright,
trade secret, or other proprietary right of a third party, or (ii) by reason
of injury to or death of any person or damage to or destruction of property
arising out of or resulting from the negligent, reckless or willful acts or
omissions of Overland, its employees, subcontractors or agents in the use,
offer for sale or sale of a Next Generation Travan VR(2) ASIC as a component
of a Next Generation Travan Drive. Overland will not be responsible for any
such losses, damages, liabilities, claims, actions, judgments, costs,
demands, attorneys' fees, disbursements and expenses caused by the sole
negligence or willful misconduct of Tecmar, its directors, officers or
employees. If an action, claim or demand is filed against Tecmar for which
Overland is to be responsible under this provision, Tecmar will promptly
notify Overland in writing of such action, claim or demand. Upon receipt of
such notice from Tecmar, if Overland acknowledges in writing to Tecmar that
Overland is obligated to indemnify Tecmar under the terms of this SECTION 8.1
in connection with such action, claim or demand, then Overland will be
entitled, if it so elects, to take control of the defense and investigation
of such action, claim or demand and to employ and engage attorneys of its own
choice to handle and defend the same at Overland's sole cost, risk and
expense and Tecmar will thereafter cooperate in all reasonable respects with
Overland and its attorneys in the investigation, trial and defense of such
action, claim or demand and any appeal arising therefrom. Tecmar may also,
through independent counsel and at its own cost, participate in such
investigation, trial and defense of such action, claim or demand and any
appeal arising therefrom. Overland may effect no
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CONFIDENTIAL TREATMENT REQUESTED
settlement without the prior written approval of Tecmar, which approval will
not be unreasonably withheld.
8.2 BY TECMAR. Tecmar will indemnify and hold harmless Overland and
its directors, officers, employees, agents, successors and assigns from and
against any and all liability, damages, losses, claims, demands, actions,
judgments, costs, attorneys' fees, disbursements and expenses incurred in
connection with any action, claim or demand against Overland (i) based upon
or arising from an allegation that the making, having made, using, offering
for sale or selling by Overland of a Next Generation Travan Drive developed
pursuant to this Agreement (except to the extent attributable solely and
exclusively to the Overland Know-How and Overland Patent Rights furnished to
Tecmar by Overland) infringes upon or misappropriates any patent, copyright,
trade secret, or other proprietary right of a third party, or (ii) by reason
of losses, injury to or death of any person or damage to or destruction of
property arising out of or resulting from any sales or use of the Travan NS
40 drive, or the negligent, reckless or willful acts or omissions of Tecmar,
its employees, subcontractors or agents in the use, offer for sale or sale of
the Next Generation Travan Drive. Tecmar will not be responsible for any such
losses, damages, liabilities, claims, actions, judgments, costs, demands,
attorneys' fees, disbursements and expenses caused by the sole negligence or
willful misconduct of Overland, its directors, officers or employees. If an
action, claim or demand is filed against Overland for which Tecmar is to be
responsible under this provision, Overland will promptly notify Tecmar in
writing of such action, claim or demand. Upon receipt of such notice from
Overland, if Tecmar acknowledges in writing to Overland that Tecmar is
obligated to indemnify Overland under the terms of this SECTION 8.2 in
connection with such action, claim or demand, then Tecmar will be entitled,
if it so elects, to take control of the defense and investigation of such
action, claim or demand and to employ and engage attorneys of its own choice
to handle and defend the same at Tecmar's sole cost, risk and expense and
Overland will thereafter cooperate in all reasonable respects with Tecmar and
its attorneys in the investigation, trial and defense of such action, claim
or demand and any appeal arising therefrom. Overland may also, through
independent counsel and at its own cost, participate in such investigation,
trial and defense of such action, claim or demand and any appeal arising
therefrom. Tecmar may effect no settlement without the prior written approval
of Overland, which approval will not be unreasonably withheld.
8.3 MUTUAL INDEMNITY. Each party ("INDEMNIFYING PARTY") will
indemnify and hold harmless the other party ("INDEMNIFIED PARTY") and its
directors, officers, employees, agents, successors and assigns from and against
any and all liability, damages, losses, claims, demands, actions, judgments,
costs, attorneys' fees, disbursements and expenses incurred in connection with
any action, claim or demand against the Indemnified Party (i) based upon or
arising from an allegation that the making, having made, using, offering for
sale or selling by the Indemnifying Party of an Other Future Drive developed
pursuant to this Agreement which is not made, used, offered for sale or sold by
the Indemnified Party infringes upon or misappropriates any patent, copyright,
trade secret, or other proprietary right of a third party, or (ii) by reason of
losses, injury to or death of any person or damage to or destruction of property
arising out of or resulting from any sales or use of such Other Future Drive, or
the negligent, reckless or willful acts or omissions
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CONFIDENTIAL TREATMENT REQUESTED
of the Indemnifying Party, its employees, subcontractors or agents in the
use, offer for sale or sale of such Other Future Drive. If an action, claim
or demand is filed against the Indemnified Party for which the Indemnifying
Party is to be responsible under this provision, the Indemnified Party will
promptly notify the Indemnifying Party in writing of such action, claim or
demand. The Indemnifying Party will take control of the defense and
investigation of such action, claim or demand and employ and engage attorneys
of its own choice to handle and defend the same at its sole cost, risk and
expense and the Indemnified Party will thereafter cooperate in all reasonable
respects with the Indemnifying Party and its attorneys in the investigation,
trial and defense of such action, claim or demand and any appeal arising
therefrom at the sole cost and expense of the Indemnifying Party. The
Indemnified Party may also, through independent counsel and at its own cost,
participate in such investigation, trial and defense of such action, claim or
demand and any appeal arising therefrom. The Indemnifying Partymay effect no
settlement without the prior written approval of the Indemnified Party, which
approval will not be unreasonably withheld.
8.4 DISCLAIMER OF OVERLAND WARRANTIES AND LIMITED LIABILITY.
OVERLAND SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE RESULTS, DELIVERABLES,
NEXT GENERATION TRAVAN VR(2) ASIC, AND NEXT GENERATION TRAVAN DRIVES AND ANY
PARTICULAR APPLICATION OR USE OF THE RESULTS, DELIVERABLES, NEXT GENERATION
TRAVAN VR(2) ASIC, AND NEXT GENERATION TRAVAN DRIVES. IN NO EVENT SHALL
OVERLAND BE LIABLE FOR ANY LOSS OR PROFIT OR ANY OTHER COMMERCIAL DAMAGE,
INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
OTHER DAMAGES. THE AMOUNTS OF COSTS AND DAMAGES PAID BY OVERLAND WILL NOT
EXCEED $***.
8.5 DISCLAIMER OF TECMAR WARRANTIES AND LIMITED LIABILITY. TECMAR
SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE RESULTS, DELIVERABLES, AND NEXT GENERATION TRAVAN
DRIVES AND ANY PARTICULAR APPLICATION OR USE OF THE RESULTS, DELIVERABLES AND
NEXT GENERATION TRAVAN DRIVES. IN NO EVENT SHALL TECMAR BE LIABLE FOR ANY LOSS
OR PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES. THE AMOUNTS OF COSTS AND
DAMAGES PAID BY TECMAR WILL NOT EXCEED $***.
8.6 LIABILITY FOR INJURIES TO PERSONNEL. Each party will be solely
responsible for, and will indemnify and hold harmless the other party against,
all claims, losses, litigation, damages, and expenses resulting from injuries to
or the death of any of its personnel occurring
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CONFIDENTIAL TREATMENT REQUESTED
while any such person is traveling to or from any of the other party's
facilities, or is otherwise engaged in activities incident to this Agreement.
8.7 REMEDIES. The indemnities of this ARTICLE 8 are not exclusive
and the aggrieved party will in all events be entitled to seek whatever
additional remedies may be available at law or in equity.
8.8 SURVIVAL. The provisions of this ARTICLE 8 will survive any
termination, cancellation or expiration of this Agreement without limitation.
9. TERM AND TERMINATION
9.1 TERM. The term of this Agreement will begin on the Effective Date
and, unless earlier terminated pursuant to SECTION 9.2, will expire upon the
expiration of the license granted to Tecmar in SECTION 4.4. Any extension of
the term of this Agreement must be made by written agreement of the Parties.
9.2 TERMINATION RIGHTS. Each party may terminate this Agreement,
effective immediately upon written notice to the other party, if the other party
has failed to perform any material obligation under this Agreement or to cure
any other material breach of this Agreement within *** after receiving written
notice of such material nonperformance or material breach from the terminating
party. After November 30, 1999, either party may terminate this Agreement
without cause by providing written notice to the other party and such
termination without cause will take effect thirty (30) days following the date
of the other party's receipt of such notice of termination without cause. In
addition, Overland may terminate this Agreement pursuant to SECTION 2.4.
9.3 EFFECTS OF TERMINATION. Upon any termination of this Agreement
pursuant to SECTION 2.4 or any termination without cause pursuant to SECTION
9.2, then (a) all licenses granted under SECTION 4.4 will terminate; (b) the
Parties will cooperate to the extent needed to obtain appropriate intellectual
property protection for any Results achieved upon such termination; (c) the
Program Engineers will return to their normal duties and responsibilities at
Tecmar; and (d) each party will promptly return to the other party such party's
Confidential Information. Upon any termination for breach of warranty under
SECTION 7.3 or material breach under SECTION 9.2 by Tecmar, (i) Tecmar will
reimburse Overland for all reasonable costs and expenses incurred by Overland
during the period of time from the Effective Date until such termination date;
(ii) the license granted to Tecmar by Overland pursuant to SECTION 4.4 will
immediately terminate; (iii) the licenses granted to Overland by Tecmar pursuant
to SECTION 4.4 will survive; and (iv) each party will promptly return to the
other party such party's Confidential Information. Upon any termination for
breach of warranty under SECTION 7.2 or material breach under SECTION 9.2 by
Overland, (x) the license granted to Overland by Tecmar pursuant to SECTION 4.4
will immediately terminate; (y) each party will promptly return to the other
party such party's Confidential Information; and (z) Overland agrees to
negotiate in good faith the terms and conditions under which it will supply Next
Generation Travan VR(2) ASICs required by Tecmar to
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complete the Development Program, and to manufacture, have manufactured or
sell Next Generation Travan Drives and Other Future Drives (but not to
manufacture, have manufactured or separately sell any Next Generation Travan
VR(2) ASIC's) and, only to the extent necessary to integrate such Next
Generation Travan VR(2) ASICs provided by Overland into a Next Generation
Travan Drive and Other Future Drive, the licenses granted to Tecmar by
Overland pursuant to SECTION 4.4 will survive.
9.4 SURVIVAL. Sections 4.1, 4.2, 4.3, 4.5, 4.6, ARTICLE 6, ARTICLE 7,
ARTICLE 8, SECTION 9.3, ARTICLE 10 and the licenses granted pursuant to SECTION
2.7 will survive the expiration or termination of this Agreement.
10. GENERAL
10.1 PUBLICITY. Each party will obtain the other party's prior
approval (which will not be unreasonably withheld) of any press release or
public announcement referring to this Agreement or the relationship between the
Parties formed by this Agreement. Failure to provide such prior approval within
fifteen (15) days of submission of any press release or public announcement
shall be deemed approval to publish such release or announcement.
10.2 [RESERVED].
10.3 NOTICE. During the term of this Agreement, each party will
promptly notify the other party if it (or any of its Affiliates) files any
patent application regarding any of the jointly owned intellectual property as
set forth in SECTION 4.3, and upon the other party's request, it will disclose
the contents of any such application to the other party, subject to the
confidentiality provisions of ARTICLE 6. Each party will also notify the other
party upon the issuance of a patent pursuant to any such application.
10.4 RELATIONSHIP OF PARTIES. Overland and Tecmar are independent
contractors. This Agreement will not be deemed to create a partnership or joint
venture between the Parties. Except as expressly provided in this Agreement,
neither party has the authority to act on behalf of or bind the other party.
10.5 NOTICES AND CONSENTS. All notices and consents required or
permitted under this Agreement must be in writing and will be effective when
delivered (by personal delivery, postage-prepaid U.S. mail, or private courier)
to the appropriate party at the address set forth at the top of this Agreement.
Each party may change its address for receipt of notices by giving notice of the
new address to the other party.
10.6 GOVERNING LAW AND VENUE. This Agreement will be governed solely
and exclusively by the laws of the State of California without regard to
conflict of laws principles.
10.7 DISPUTE RESOLUTION. All disputed, controversies, or claims
arising out of, relating to or in connection with this contract, including the
determination of the scope of the agreement
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to mediate, or between the Parties, will be settled initially through
non-binding mediation. Within five (5) business days of the receipt of a
notice to mediate from one of the parties to the other party, the Parties
will jointly select a neutral mediator to resolve such dispute. Immediately
following the selection of the mediator, each of the Parties agrees to
promptly meet with the mediator and to use good faith efforts to execute any
instructions and/or directions from the mediator to resolve such dispute. If
the Parties fail (i) to jointly select a neutral mediator within five (5)
business days of the receipt of a notice to mediate or (ii) to resolve such
dispute under the direction of the mediator within 30 calendar days of
receipt of the notice to mediate, then the Parties agree that all disputes,
controversies, or claims arising out of, relating to or in connection with
this contract, including the determination of the scope of the agreement to
arbitrate, or between the Parties, will be finally settled by mandatory
arbitration in accordance with the Expedited Procedures of the Commercial
Arbitration Rules ("RULES") of the American Arbitration Association ("AAA"),
applicable at the time of submission of the dispute to arbitration. The
arbitration will take place in San Diego, California at the offices of the
AAA. The dispute will be resolved by a single arbitrator appointed by the AAA
in accordance with the list procedure described in Paragraph 13 of the Rules,
except that the AAA will transmit the list within ten days of the filing of
the Demand for Arbitration, and the Parties will have five days to return the
list to the AAA with their objections and preferences. Nothing herein will
prevent a party, prior to appointment of the arbitrator, from making
application to any court of competent jurisdiction, for any provisional
remedy available at law or in equity. Such application for relief will not
constitute a waiver of this agreement to arbitrate. Upon appointment, the
arbitrator will have exclusive authority to order provisional or interim
relief, except that any relief ordered by the arbitrator may be immediately
and specifically enforced by a court otherwise having jurisdiction. The
Parties waive objection to venue and consent to the personal jurisdiction of
the federal courts of San Diego, California in any action to enforce this
agreement to arbitrate or any order or award of the arbitrator, or for the
provisional or interim remedies provided for in this Agreement. Discovery
will be limited to written requests for the production of specific documents.
The period for requesting documents will be 60 days commencing upon the day
that the answer is due under the Rules. The responding party will have 30
days to produce the requested documents by sending copies to the requesting
party or its representative via a recognized international courier service.
The Parties will also voluntarily produce all documents that they intend to
use at the arbitration hearing and a list of intended witnesses before the
close of discovery subject to supplementation for purposes of rebuttal or
good cause shown. The Parties waive any right to seek any discovery not
provided for i this Agreement irrespective of whether the laws of any country
provide for different or additional discovery in international arbitration.
The arbitrator will hold a pre-hearing conference within three days of the
close of discovery and will schedule and hold the final hearing within 30
days of the close of discovery. In any arbitration proceeding pursuant to
this Agreement, each party will bear the expenses of its witnesses. All
other costs of arbitration, including, without limitation, the fees and
expenses of the arbitrator, the cost of the record or transcripts thereof, if
any, administrative fees, the attorneys' fees of the Parties, and all other
fees and costs will be allocated to the Parties to the arbitration as
determined by the arbitrator, except that the prevailing party in such
arbitration will be entitled to recover its reasonable attorneys' fees and
expenses. EACH PARTY HERETO
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CONFIDENTIAL TREATMENT REQUESTED
HEREBY AGREES THAT THE ARBITRATION PROCEDURE PROVIDED IN THIS AGREEMENT WILL
BE THE SOLE AND EXCLUSIVE METHOD OF RESOLVING ANY DISPUTES, CONTROVERSIES OR
CLAIMS ARISING IN CONNECTION WITH, OR OUT OF THIS AGREEMENT, OR OTHERWISE
BETWEEN THE PARTIES TO THIS AGREEMENT.
10.8 REMEDIES. All rights and remedies under this Agreement are
cumulative, may be exercised singularly or concurrently, and will not be deemed
exclusive. The Parties agree that any breach of any confidentiality provision
of ARTICLE 6 would cause irreparable harm to the non-breaching party for which
monetary damages would be an inadequate remedy, and accordingly injunctive
relief is an appropriate remedy to prevent any threatened or ongoing breach of
any provision of ARTICLE 6.
10.9 WAIVERS. The failure of either party to enforce any provision of
this Agreement, unless waived in writing by such party, will not constitute a
waiver of that party's right to enforce that provision or any other provision of
this Agreement.
10.10 ASSIGNMENTS. Each party may use subcontractors in the performance
of its obligations under this Agreement provided that (i) such party remains
responsible for the performance of such obligations and the actions and
omissions of its subcontractors and (ii) Tecmar may not assign, delegate and/or
subcontract any of its engineering and/or design tasks or duties pursuant to
this Agreement, except as approved by the Development Program Manager. Neither
party may assign or transfer this Agreement to a third party without the other
party's prior written consent except in connection with a merger or sale of all
or substantially all of such party's Next Generation Travan Drive or Other
Future Drive business. Any attempted assignment or delegation in violation of
the foregoing will be void. This Agreement will bind and inure to the benefit
of the Parties' respective successors and permitted assigns.
10.11 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, the remaining provisions will remain in full force
and effect and the unenforceable provision will be considered modified to the
extent necessary to render such provision enforceable under applicable law.
10.12 CONSTRUCTION. Unless otherwise expressly stated, all references
in this Agreement to "days" mean calendar days and every use of the word
"including" means "including but not limited to". The headings given to
Articles or Sections of this Agreement are for convenience only and are not to
be given any weight or meaning when interpreting this Agreement. There are no
intended third party beneficiaries of this Agreement. This Agreement may be
executed in identical counterparts, each of which will be an original and which
together will constitute the same instrument.
10.13 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the
entire agreement between the Parties and supersedes all previous written or oral
communications or
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CONFIDENTIAL TREATMENT REQUESTED
understandings between them relating to the subject matter of this Agreement.
Notwithstanding the foregoing, this Agreement does not amend, modify or alter
in any way, and will have no effect on, the ASIC Supply Agreement previously
executed by the Parties on June 1, 1999. This Agreement may be amended only
in a writing signed by both Parties.
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CONFIDENTIAL TREATMENT REQUESTED
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
OVERLAND DATA, INC. TECMAR TECHNOLOGIES, INC.
By: /s/ Scott McClendon By: /s/ Joseph R. Daiutolo
Scott McClendon Joseph R. Daiutolo
President & CEO President & CEO
November 18, 1999 November 18 , 1999
[SIGNATURE PAGE TO DEVELOPMENT, MANUFACTURING
AND LICENSE AGREEMENT]
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EXHIBIT A
DEFINITIONS
The following definitions will apply to all of the Exhibits to this Agreement.
NS40
Travan cartridge drive with a 20 GB native capacity, using a VR(2)2 data
channel, with a 2-rail head supporting read-while-write operation, and
supporting ALDC hardware data compression. This drive is implemented with a
VR(2)2 ASIC to be provided by Overland Data.
30GB
Travan cartridge drive with a 15 GB native capacity, using a VR(2) data
channel, with a 1-rail head. This drive is implemented with a single-channel
VR(2) ASIC specified and provided by Overland Data.
ALDC - Adaptive Lossless Data Compression
A specific data compression algorithm realized in hardware and defined in
QIC-154.
DVT - Design Verification Testing
System level testing performed to insure the product meets specification;
specifically transfer rate, capacity and error rate specifications.
ECC - Error Correction Code
A hardware module which corrects user data using a Reed-Solomon algorithm.
FPGA - Field Programmable Gate Array
A device with hardware which is configurable via downloadable code. For
purposes of this Exhibit, FPGA refers to a Xilinx Vertex device.
VHDL - Very high-speed integrated circuit Hardware Description Language
A programming language used to describe the hardware functions to be implemented
in an FPGA or ASIC.
DELIVERABLES
1) NS40 and 30GB Drive Specifications
2) Schematics, mechanical drawings, and firmware required to specify,
assemble, support and extend the NS40 and 30GB drives.
3) VHDL files for the FPGA device to perform read-while-write formatter,
buffer management, ECC, motor control, and sensor monitoring functions.
4) 100 DVT drives, (a) 70 of 100 assembled as NS40 drives with dual-rail
RWW (read-while-write) heads and with or without ALDC hardware
compression devices, and (b) 30 of 100 assembled as 30GB drives with
single-rail non read-while-write heads and no hardware compression. Both
configurations use a common PCA, a common VR(2) channel pin-out, and a
common FPGA device to implement formatter, buffer management, ECC, motor
1
EXHIBIT A
control, and sensor monitoring functions. Both configurations support an
ATAPI host interface.
5) 300 Evaluation drives, (a) 250 of 300 assembled as NS40 drives, and (b)
50 of 300 assembled as 30GB drives. The configuration is as described
in item 4.
6) 100 Evaluation drives, (a) 75 of 100 assembled as NS40 drives, and (b)
25 of 100 assembled as 30GB drives. Both configurations use a common PCA,
and a common Kawasaki ASIC for the formatter, buffer management, ECC,
motor control, and sensor monitoring functions. The 30GB drives will use
a single-channel VR(2) ASIC available from Overland Data. The NS40 drives
will use a VR(2) channel implementation suitable for supporting NS40 and
pin compatible with the single-channel VR(2) ASIC. Both configurations
support an ATAPI host interface.
2
EXHIBIT B
PROJECT SCHEDULE
MILESTONES
MILESTONE TECMAR DELIVERABLE OVERLAND DELIVERABLE
DATE
***
1
EXHIBIT C
OVERLAND PATENT RIGHTS
Patents for the Overland VR(2) recording technology:
1. U.S. Patent Number US571286301/27/1998
Randomizing Encoder for Digital Data Storage
2. U.S. Patent Number US581551409/29/1998
Variable Rate Bit Inserter for Digital Data Storage
3. U.S. Patent Number US593196808/03/1999
Digital Data Recording Channel
4. U.S. Patent Application Serial Number 09/134,243
Partial Response Recording Channel
5. U.S. Patent Application Serial Number 09/133,982
Write Format for Digital Data Storage
6. All pending and future international patents related to above U.S.
patents
1
EXHIBIT D
TECMAR PATENT RIGHTS
Patents for the Tecmar Travan NS20 Drive:
1. U.S. Patent Application Serial Number 08/763,394
Apparatus and Method for Detecting Read/Write Gap Failure and Switching to
an Alternative Read/Write Gap.
2. Patent Cooperation Treaty (PCT) PCT/US97/22427
Apparatus and Method for Detecting Read/Write Gap Failure and Switching to
an Alternative Read/Write Gap.
1
EXHIBIT E
TRAVAN NS40 VR(2) ASIC SPECIFICATION
***
TRAVAN 30GB VR(2) ASIC SPECIFICATION
***
1
EXHIBIT F
TECMAR DEVELOPMENT PROGRAM COSTS AND EXPENSES
Overland Data with reimburse Tecmar Technologies for other costs directly
related to the engineering services provided by Tecmar Technologies pursuant to
the Development Program. Directly-related project costs are expected to include
the following:
1) Non-recurring engineering development costs including embedded operating
system, ARM evaluation boards, compilers, debuggers, synthesizer for
FPGA, simulator and router, and PCA layout.
2) NS40/30GB drive costs including DVT drives, evaluation drives using the
FPGA device, and evaluation drives using the Kawasaki ASIC.
3) Project-related travel costs.
4) Other costs as approved by the Overland Project Manager.
Tecmar and Overland will follow the procedures set forth below for reimbursement
of development materials and other directly related Project costs ("PROJECT
COSTS").
1) Since Overland is the Project Manager for the Project, Overland and
Tecmar agree that, as a general rule, Project Costs shall be primarily
procured by Overland without Tecmar's direct involvement in the
expenditure. Tecmar's Project Manager will communicate with the Overland
Project Manager as to any needs they may require with regard to Project
Costs. If the Overland Project Manager determines that such expenditure
is justified, the Overland Project Manager will follow Overland's
purchase requisition and order procedures in fulfilling the purchase
request; and Overland will be responsible to the selected vendor for
direct payment. If the materials or other items procured need to be used
at Tecmar's Longmont, CO facility, Overland will ensure that the vendor
is instructed with Tecmar's address as the ship to location.
2) It is anticipated that Tecmar will incur directly related Project Costs
in the nature of travel for Project related meetings and other items
(e.g., delivery charges for project-related documents and
correspondence). For these items, Tecmar will prepare a purchase
requisition describing the nature of the expenditure and the estimated
cost. The purchase requisition will be forwarded to the Overland project
manager, who will approve or deny such request within 5 business days of
receipt. If the Overland project manager approves such purchase
requisition, Overland agrees to reimburse Tecmar for the expense upon
receipt of appropriate supporting documentation (see 3. Below).
3) Tecmar agrees to submit a monthly invoice to Overland by the 5th business
day of the following month for approved directly related Project Costs
incurred in the preceding month. Tecmar will provide Overland with a
copy of the vendor invoice (or other such supporting document (e.g.,
employee expense report) and a copy of the purchase requisition approved
by the Overland project manager. Overland agrees to pay the Tecmar
invoice by the 15th business day.
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