<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 1997
REGISTRATION NO. 333-18537
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ATL PRODUCTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3572 95-3824281
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
------------------------
1515 SOUTH MANCHESTER AVENUE
ANAHEIM, CALIFORNIA 92802-2907
(714) 780-7200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
KEVIN C. DALY, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATL PRODUCTS, INC.
1515 SOUTH MANCHESTER AVENUE
ANAHEIM, CALIFORNIA 92802-2907
(714) 780-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
PATRICK ARRINGTON, ESQ. JEFFREY D. SAPER, ESQ.
ELLEN S. BANCROFT, ESQ. HOWARD S. ZEPRUN, ESQ.
SUSAN N. CAYLEY, ESQ. KAIVAN M. SHAKIB, ESQ.
NEEL GROVER, ESQ. MATTHEW MACKENZIE, ESQ.
BROBECK, PHLEGER & HARRISON LLP WILSON SONSINI GOODRICH & ROSATI
4675 MACARTHUR COURT, SUITE 1000 PROFESSIONAL CORPORATION
NEWPORT BEACH, CALIFORNIA 92660 650 PAGE MILL ROAD
(714) 752-7535 PALO ALTO, CALIFORNIA 94304-1050
(415) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
------------------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts are estimated
except the Securities and Exchange Commission registration fee. All of the
expenses below will be paid by the Registrant.
<TABLE>
<CAPTION>
ITEM AMOUNT
-------------------------------------------------------------------------- --------
<S> <C>
Registration fee.......................................................... $ 6,891
NASD filing fee........................................................... 2,774
Nasdaq National Market listing (entry) fee................................ 42,250
Blue Sky fees and expenses................................................ 7,500
Printing and engraving expenses........................................... 105,000
Legal fees and expenses................................................... 200,000
Accounting fees and expenses.............................................. 140,000
Transfer Agent and Registrar fees......................................... 7,500
Miscellaneous............................................................. 63,085
--------
Total........................................................... $575,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933. The Registrant's Bylaws (Exhibit 3.3 hereto) provides that the
Registrant shall indemnify its directors and officers to the fullest extent
permitted by Delaware law. The Bylaws require the Registrant, subject to certain
limitations, to advance litigation expenses in the case of stockholder
derivative actions or other actions, against an undertaking by the directors and
officers to repay such advances if it is ultimately determined that the
directors or officers are not entitled to indemnification. The Bylaws further
provide that rights conferred under such Bylaws shall not be deemed to be
exclusive of any other right such persons may have or acquire under any
agreement, vote of stockholders or disinterested directors, or otherwise. The
Registrant believes that indemnification under its Bylaws covers at least
negligence and gross negligence.
In addition, the Registrant's Certificate of Incorporation (the
"Certificate") (Exhibit 3.1 hereto) provides that the Registrant shall indemnify
its directors and officers if such persons acted (i) in good faith, (ii) in a
manner reasonably believed to be in or not opposed to the best interests of the
Registrant, and (iii) with respect to any criminal action or proceeding, with
reasonable cause to believe such conduct was lawful. The Certificate also
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Registrant and its stockholders. This provision in the Certificate does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Certificate further
provides that the Registrant be authorized to indemnify its directors and
officers to the fullest extent permitted by law through the Bylaws, agreement,
vote of stockholders or disinterested directors, or otherwise.
II-1
<PAGE> 3
The Registrant intends to obtain directors' and officers' liability
insurance in connection with this Offering.
In addition, the Registrant has entered or, concurrently with this
Offering, will enter, into agreements to indemnify its directors and certain of
its officers in addition to the indemnification provided for in the Certificate
and Bylaws. These agreements will, among other things, indemnify the
Registrant's directors and certain of its officers for certain expenses
(including attorneys fees), judgments, fines and settlement amounts incurred by
such person in any action or proceeding, including any action by or in the right
of the Registrant, on account of services by that person as a director or
officer of the Registrant or as a director or officer of any subsidiary of the
Registrant, or as a director or officer of any other company or enterprise that
the person provides services to at the request of the Registrant.
The Underwriting Agreement (Exhibit 1.1 hereto) provides for
indemnification by the Underwriters of the Registrant, its officers and
directors and by the Registrant of the Underwriter, for certain liabilities
arising under the Securities Act or otherwise.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since December 1996, the Registrant has sold and issued the following
unregistered securities:
1. In December 1996, the Registrant granted nonstatutory stock options
to certain employees of the Registrant under its 1996 Stock Incentive Plan
covering an aggregate of 879,000 shares of the Registrant's Class B Common
Stock, at an exercise price of $5.00 per share. These options vest over a
three year period commencing one year following the date of grant. All of
such options were issued in consideration for employment services rendered
to the Registrant. None of the optionees paid any cash consideration for
these options. The sale and issue of these securities was deemed to be
exempt from registration under the Securities Act by virtue of Rule 701
promulgated thereunder in that they were offered and sold either pursuant
to a written compensatory benefit plan or pursuant to written contract
relating to compensation, as provided by Rule 701.
2. In December 1996, the Registrant effected a reincorporation in
Delaware which included a recapitalization in which two classes of common
stock were authorized, and each share of the Registrant's no par Common
Stock was exchanged for 8,005 shares of Common Stock, par value $.0001 per
share. Such issuance was exempt from registration under Section 2(3) of the
Securities Act on the basis that such transaction did not involve a "sale"
of securities.
There were no underwriters, brokers or finders employed in connection with
any of the transactions set forth above.
II-2
<PAGE> 4
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following Exhibits are attached hereto and incorporated herein by
reference.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ----------------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.**
3.1 Certificate of Incorporation of the Registrant as filed with the Delaware Secretary of State
on December 19, 1996.**
3.2 Certificate of Merger of the Registrant as filed with the Delaware Secretary of State on
December 19, 1996.**
3.3 Bylaws of the Registrant.**
4.1 Specimen certificate representing shares of Common Stock of the Registrant.**
4.2 1996 Stock Incentive Plan.**
4.3 Form of Notice of Grant of Stock Option and related Stock Option Agreement under 1996 Stock
Incentive Plan.**
5.1 Form of Opinion of Brobeck, Phleger & Harrison LLP.**
10.1 Form of Indemnification Agreement.**
10.2 Real Property lease, dated October 9, 1996, by and between Thomas M. Zapara and Violet J.
Zapara, Trustees of the Zapara Family Trust U/D/T dated December 7, 1995 and Registrant, a
wholly owned subsidiary of Odetics, Inc.**
10.3 Form of Separation and Distribution Agreement between the Registrant and Odetics.**
10.4 Form of Tax Allocation Agreement between the Registrant and Odetics.**
10.5 Form of Services Agreement between the Registrant and Odetics.**
10.6 Form of Value Added Reseller Agreement.**
10.7 Form of International Value Added Reseller Agreement.**
10.8 Technical Support Agreement dated May 6, 1996, between Technology Service Solutions and
Odetics, Incorporated, as amended May 7, 1996.+**
10.9 Tape Library OEM Purchase Agreement dated August 28, 1996, between Quantum Corporation and
Registrant.+**
10.10 Veritas Software License Agreement, dated November 8, 1996, between Veritas Software
Corporation and Registrant.+**
10.11 Agreement dated December 18, 1995, between Hewlett-Packard GmbH Local Products Organization
and Registrant.+**
10.12 Basic Order Agreement dated April 15, 1993, between Digital Equipment Corporation and Odetics,
Inc. and Registrant, as amended January 11, 1994, March 25, 1994, October 19, 1994, October
27, 1994 and January 12, 1995.+**
10.13 Basic Ordering Agreement dated September 14, 1995 between EMC(2) Corporation and
Registrant.+**
10.14 Form of Promissory Note between the Registrant and Odetics.**
10.15 Form of Odetics Associate Agreement.**
10.16 Commitment Letter Agreement dated December 19, 1996 between the Registrant and Imperial
Bank.**
10.17 Commitment Letter Agreement dated December 20, 1996 among the Registrant, Imperial Bank and
Comerica Bank -- California.**
10.18 Development and License Agreement dated January 14, 1997 between the Registrant and Sun
Microsystems, Inc.+
11.1 Statement Regarding Computation of Earnings Per Share.**
23.1 Consent of Independent Auditors.**
23.2 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit 5.1).
24.1 Power of Attorney.**
27.1 Financial Data Schedules.**
</TABLE>
- ---------------
** previously filed
+ Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
II-3
<PAGE> 5
(b) Financial Statement Schedules
<TABLE>
<CAPTION>
SCHEDULE
- ------------
<S> <C>
Schedule II Valuation and Qualifying Accounts
</TABLE>
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide the Underwriters at the closing
specified in the Underwriting Agreements certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted as to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 14, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus as filed as
part of the registration statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared
effective;
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to provide the underwriters at
the closing as specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 5 to the Registration Statement on
Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Anaheim, State of California, on the 6th day of
March, 1997.
ATL PRODUCTS, INC.
By: /s/ KEVIN C. DALY
--------------------------------------
Kevin C. Daly, Ph.D.
Chief Executive Officer, President
and Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Amendment No. 5 to the Registration Statement on Form S-1 has been signed by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------- --------------------------------- ------------------
<S> <C> <C>
/s/ KEVIN C. DALY
- --------------------------------- Chief Executive Officer, March 6, 1997
Kevin C. Daly, Ph.D. President and Chairman of the
Board
(principle executive officer)
*
- --------------------------------- Director March 6, 1997
Joel Slutzky
*
- --------------------------------- Director March 6, 1997
Crandall Gudmundson
/s/ GREGORY A. MINER
- --------------------------------- Chief Financial Officer March 6, 1997
Gregory A. Miner (principal
financial and accounting officer)
*By: /s/ KEVIN C. DALY
- ---------------------------------
Kevin C. Daly, Ph.D.
(Attorney-in-fact)
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ --------------------------------------------------------------------------- ------------
<S> <C> <C>
1.1 Form of Underwriting Agreement**...........................................
3.1 Certificate of Incorporation of the Registrant as filed with the Delaware
Secretary of State on December 19, 1996**..................................
3.2 Certificate of Merger of the Registrant as filed with the Delaware
Secretary of State on December 19, 1996**..................................
3.3 Bylaws of the Registrant**.................................................
4.1 Specimen certificate representing shares of Common Stock of the
Registrant**...............................................................
4.2 1996 Stock Incentive Plan**................................................
4.3 Form of Notice of Grant of Stock Option and related Stock Option Agreement
under 1996 Stock Incentive Plan**..........................................
5.1 Form of Opinion of Brobeck, Phleger & Harrison LLP**.......................
10.1 Form of Indemnification Agreement**........................................
10.2 Real Property lease, dated October 9, 1996, by and between Thomas M. Zapara
and Violet J. Zapara, Trustees of the Zapara Family Trust U/D/T dated
December 7, 1995 and Registrant, a wholly owned subsidiary of Odetics,
Inc.**.....................................................................
10.3 Form of Separation and Distribution Agreement between the Registrant and
Odetics**..................................................................
10.4 Form of Tax Allocation Agreement between the Registrant and Odetics**......
10.5 Form of Services Agreement between the Registrant and Odetics**............
10.6 Form of Value Added Reseller Agreement**...................................
10.7 Form of International Value Added Reseller Agreement**.....................
10.8 Technical Support Agreement dated May 6, 1996, between Technology Service
Solutions and Odetics, Incorporated, as amended May 7, 1996+**.............
10.9 Tape Library OEM Purchase Agreement dated August 28, 1996, between Quantum
Corporation and Registrant+**..............................................
10.10 Veritas Software License Agreement, dated November 8, 1996, between Veritas
Software Corporation and Registrant+**.....................................
10.11 Agreement dated December 18, 1995, between Hewlett-Packard GmbH Local
Products Organization and Registrant+**....................................
10.12 Basic Order Agreement dated April 15, 1993, between Digital Equipment
Corporation and Odetics, Inc. and Registrant, as amended January 11, 1994,
March 25, 1994, October 19, 1994, October 27, 1994 and January 12,
1995+**....................................................................
10.13 Basic Ordering Agreement dated September 14, 1995 between EMC(2)
Corporation and Registrant+**..............................................
10.14 Form of Promissory Note between the Registrant and Odetics**...............
10.15 Form of Odetics Associate Agreement**......................................
10.16 Commitment Letter Agreement dated December 19, 1996 between the Registrant
and Imperial Bank**........................................................
10.17 Commitment Letter Agreement dated December 20, 1996 among the Registrant,
Imperial Bank and Comerica Bank -- California**............................
10.18 Development and License Agreement dated January 14, 1997 between the
Registrant and Sun Microsystems, Inc.+.....................................
11.1 Statement Regarding Computation of Earnings Per Share**....................
23.1 Consent of Independent Auditors**..........................................
23.2 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit 5.1)......
24.1 Power of Attorney**........................................................
27.1 Financial Data Schedules**.................................................
</TABLE>
- ---------------
** previously filed
+ Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
<PAGE> 1
EXHIBIT 10.18
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
SUN MICROSYSTEMS COMPUTER COMPANY
DEVELOPMENT AND LICENSE AGREEMENT
THIS DEVELOPMENT AND LICENSE AGREEMENT including Exhibits ("Agreement") is made
by and between Sun Microsystems, Inc., a Delaware Corporation acting by and
through its Sun Microsystems Computer Company division and having its principal
place of business at 2550 Garcia Avenue, Mountain View, California 94043-1100
("Sun"), and ATL Products, Inc., a California corporation having its principal
place of business at 1515 South Manchester Avenue, Anaheim, California
92802-2907 ("Developer"), and is effective as of the 15th day of January, 1997
(the "Effective Date").
RECITALS
WHEREAS, Developer has developed and owns certain software and hardware
technology and documentation relating to DLT tape libraries; and
WHEREAS, Sun has developed and owns certain mass storage technology used in
high end computer systems; and
WHEREAS, Sun and Developer desire to develop a Sun DLT tape library comprised
of (a) Developer's hardware tape library with certain Sun specific
modifications, (b) library monitor software to be developed by Developer for
Sun, and (c) at Sun's option [ * ] software to be developed by Developer for
Sun, in accordance with the terms and conditions set forth herein; and
WHEREAS, Developer desires to sell, and Sun desires to purchase, the Sun DLT
tape library on an original equipment manufacturer ("OEM") basis, pursuant to
the Award Letter (as defined herein);
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
promises, and undertakings set forth herein, and for other good and valuable
consideration, Sun and Developer agree as follows:
1. DEFINITIONS
1.1 "ACCEPTANCE CRITERIA" means the criteria for the acceptance of
the Developed Product as set forth in the Statement of Work.
1.2 "ADD-ON MODULES" means software modules adding additional
functionality to the Library Monitor Software, as more fully set forth in the
Statement of Work, as it may be amended by the parties from time to time,
including any Error Corrections, Updates, Upgrades, Derivative Works of the
Add-on Modules, revisions, and any related Documentation. If Sun elects to
proceed with the development of the [ * ] Software, Add-on Modules to the [ * ]
Software will be described in the Statement of Work for the [ * ] Software.
1.3 "BINARY CODE" means machine-readable, executable code of a
computer program.
1.4 "CONFIDENTIAL INFORMATION" means (a) information which the
disclosing party desires to protect against unrestricted disclosure or
competitive use by the receiving party and which (i) if disclosed in tangible
form, is marked as "confidential" or "proprietary" or with words of similar
import
* Confidential Treatment Requested for Redacted Portion
Confidential 1 ATL Dev & Lic Agreement
1/14/97
<PAGE> 2
in writing by the disclosing party, or (ii) if disclosed orally, is designated
orally as confidential and within thirty (30) days thereafter is confirmed in
writing to the recipient, and (b) the terms, conditions, and existence of this
Agreement. Confidential Information may include proprietary Information of
third parties who have granted licenses to the disclosing party. "Confidential
Information" does not include information received from the disclosing party
which the receiving party can clearly establish by written evidence (a) is or
becomes known by the receiving party without an obligation to maintain its
confidentiality; (b) is or becomes generally known to the public through no act
or omission of the receiving party; or (c) is independently developed by
receiving party without use of the Confidential Information.
1.5 "DELIVERABLE" means any of the deliverable items specified in
the Statement of Work.
1.6 "DERIVATIVE WORK" means: (a) for copyrightable or copyrighted
material (including materials subject to mask work rights), a work which is
based upon one or more pre-existing works, such as a revision, modification,
translation, abridgement, condensation, expansion, collection, compilation, or
any other form in which such pre-existing works may be recast, transformed, or
adapted; (b) for patentable or patented materials, any adaptation, addition,
improvement, or combination; and (c) for material subject to trade secret
protection, any new material, information, or data relating to and derived from
such existing trade secret material, including new material which may be
protectable by copyright, patent, or other proprietary rights.
1.7 "DESIGNATED PLATFORM" means Sun workstations or servers
running Solaris 2.4 or later.
1.8 "DEVELOPED PRODUCT(S)" means the Source Code and Binary Code
forms of the Library Monitor Software and its related Add-on Modules and Sun
Features to be developed by Developer for Sun under this Agreement, including
any Error Corrections, Updates, Upgrades, revisions, and any related
Documentation, all as more fully set forth in the Statement of Work, and any
additional products which the parties may agree to develop hereunder in
accordance with an additional Statement of Work, including but not limited to
the [ * ] Software and its related Add-on Modules and Sun Features.
1.9 "DEVELOPER TECHNOLOGY" means all Technology provided by
Developer, including but not limited to Developer Confidential Information, the
Library Monitor Software and its related Add-on Modules.
1.10 "DEVELOPMENT EQUIPMENT" means the development hardware,
software, and other equipment and supplies provided to Developer by Sun
hereunder as more particularly described in Exhibit B.
1.11 "DEVELOPMENT PERIOD," with respect to any development program
undertaken hereunder, means the period beginning on the date of first
disclosure by either party of any information, pursuant to the Confidential
Disclosure Agreement between the parties dated November 16, 1995 ("CDA") or
under this Agreement, with respect to a Statement of Work and ending on the
date of acceptance by Sun of the last Deliverable set forth in that Statement
of Work.
1.12 "DOCUMENTATION" means the user's manuals for the Developed
Product, in Frame format, and any other documentation which the parties agree,
currently and hereafter from time to time, in writing, to treat as
Documentation, under this Agreement, including documentation necessary to
* Confidential Treatment Requested for Redacted Portion
Confidential 2 ATL Dev & Lic Agreement
1/14/97
<PAGE> 3
support and service the Developed Product, together, in each case, with any
Updates, Upgrades, Derivative Works, modifications, or enhancements thereto.
1.13 "ERROR" means any reproducible failure of the Developed
Product to conforming any material respect to the Specifications or
Documentation therefor, as the same may be amended and/or supplemented from
time to time.
1.14 "ERROR CORRECTION" means either a modification to the
Developed Product that, when made or added to the Developed Product, only
establishes material conformity to the current Specifications and Documentation
therefor, or a procedure or routine that only eliminates the practical adverse
effect of an Error in the regular operation of the Developed Product, without
adding new features or functionality.
1.15 "FEES" means those fees, if any, to be paid by Sun to
Developer in connection with the development of the Developed Product, as set
forth on Exhibit A.
1.16 "INTELLECTUAL PROPERTY RIGHTS" means all intellectual property
rights worldwide arising under statutory or common law or by contract and
whether or not perfected, now existing or hereafter filed, issued, or acquired,
including all (a) patent rights; (b) rights associated with works of authorship
including copyrights and mask work rights; (c) rights relating to the
protection of trade secrets and confidential information; and (d) any right
analogous to those set forth herein and any other proprietary rights relating
to intangible property; but specifically excluding trademarks, service marks,
trade dress, trade names, and design patent rights.
1.17 "[ * ] SOFTWARE" means software, [ * ] to be developed by
Developer for Sun at Sun's option under this Agreement, including any Error
Corrections, Updates, Upgrades, Derivative Works of the [ * ] Software,
revisions, and any related Documentation, all as more fully set forth in an
additional Statement of Work to be added to this Agreement.
1.18 "LIBRARY MONITOR SOFTWARE" means software allowing for the
remote administration of Sun DLT tape libraries via a Java enabled browser, to
be developed by Developer for Sun under this Agreement, including any Error
Corrections, Updates, Upgrades, Derivative Works of the Library Monitor
Software, revisions, and any related Documentation and excluding any related
Adcl--on Modules and Sun Features, all as more fully set forth in the Statement
of Work.
1.19 "NON-CONFORMANCE" means a failure of the (a) Developed Product
to conform materially to the Specifications, or to perform correctly when
measured against the Specifications; or (b) Documentation to describe
accurately an observable function of the Developed Product.
1.20 "ON-SITE EMPLOYEE" means any employee or contractor of
Developer performing work or receiving training at any Sun location.
1.21 "ROYALTIES" means the royalties payable by Sun to Developer,
if any, in connection with the Developed Product, as set forth in Exhibit A.
1.22 "SOURCE CODE" means code of a computer program that is not
executable by a computer
* Confidential Treatment Requested for Redacted Portion
Confidential 3 ATL Dev & Lic Agreement
1/14/97
<PAGE> 4
system directly but must be converted into machine language by compilers,
assemblers, and/or interpreters, as well as documentation, release notes, or
other specifications which describe the content, organization, and structure of
the software programs included therein.
1.23 "SPECIFICATIONS" means the document or documents, including
but not limited to the Statement of Work, that characterize and define the
logical, functional, performance, and operational aspects of the Developed
Product, as defined and agreed by the parties in accordance with the Statement
of Work.
1.24 "STATEMENT OF WORK" means the development program and schedule
determined by the parties pursuant to this Agreement which sets forth the
stages of development of the Developed Product, including the Deliverables and
associated target dates pertinent thereto. The Statement of Work for the
Library Monitor Software and its related Add-on Modules and Sun Features, is as
set forth on Exhibit C, as that Exhibit may be amended from time to time in
accordance with Section 5.5. From time to time during the term of this
Agreement, one or more additional Statements of Work for one or more additional
Developed Products, including but not limited to the [ * ] Software, may be
added by mutual written consent of the parties.
1.25 "SUN DLT LIBRARY" means a Sun DLT tape library comprised of
(a) Developer's hardware tape library with certain Sun specific modifications,
including but not limited to cosmetic changes, (b) the Library Monitor
Software, and (c) at Sun's option the [ * ] Software.
1.26 "SUN FEATURES" means software modules adding Sun specific
features and functions to the Library Monitor Software as more fully described
in the Statement of Work. If Sun elects to proceed with the development of the
[ * ] Software, the software modules adding Sun specific features and functions
to the [ * ] Software will be set forth in the Statement of Work for the [ * ]
Software.
1.27 "SUN TECHNOLOGY" means all Technology provided by Sun,
including but not limited to Sun Confidential Information and Sun Features.
1.28 "TARGET DATE" means a date set forth in the Statement of Work
for delivery of a Deliverable as that date may be modified in accordance with
Section 5.4.
1.29 "TECHNOLOGY" means technical information, know-how, ideas,
concepts, processes, procedures, designs, schematics, works of authorship,
inventions and discoveries owned or licensed (with a right to sublicense) by a
party hereto.
1.30 "TEST PLAN" means the plan for testing the designs and
specifications of the Developed Product for substantial and material
conformance with the Specifications and product standards set forth in the
Statement of Work. The Test Plan is described in the Statement of Work.
1.31 "TEST REPORTS" means the safety agency compliance reports, the
environmental qualification reports, the software test and integration reports,
the performance test data, and the shipping package design and test data set
forth in the Statement of Work.
1.32 "UPDATES" means later releases (including new releases),
modifications, enhancements, additions, improvements, or extensions to any
Developed Product or Derivative Work thereof typically identified by a change
in the digit(s) to the right of the first digit of the version number (x.(xx)),
* Confidential Treatment Requested for Redacted Portion
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excluding Error Corrections, made after the end of the Development Period and
during the term of this Agreement.
1.33 "UPGRADES" means later releases (including new releases) of
any Developed Product or Derivative Work thereof adding new features and/or
functionality and typically identified by a change in the first digit of the
version number ((x).xx), excluding Error Corrections, made after the end of the
Development Period and during the term of this Agreement.
2. OWNERSHIP
2.1 SUN TECHNOLOGY. Sun is and will be the sole and exclusive
owner of all right, title, and interest in and to Sun Technology and all
associated Intellectual Property Rights, and this Agreement does not affect
such ownership. Derivative Works of Sun Technology will be owned exclusively
by Sun whether or not developed solely by Sun, solely by Developer, or jointly
by both parties. Developer acknowledges that it acquires no rights under this
Agreement to Sun Technology or Derivative Works thereof, other than the limited
rights, if any, specifically granted in this Agreement.
2.2 DEVELOPER TECHNOLOGY. Developer is and shall remain the sole
and exclusive owner of all right, title, and interest in and to Developer
Technology and all associated Intellectual Property Rights, and this Agreement
does not affect such ownership. Derivative Works of Developer Technology
will be owned exclusively by Developer whether or not developed solely by
Developer, solely by Sun, or jointly by both parties. Sun acknowledges that it
acquires no rights under this Agreement to Developer Technology or Derivative
Works thereof, other than the limited rights, if any, specifically granted in
this Agreement.
2.3 DEVELOPED PRODUCT AND SUN FEATURES. The parties hereby agree
that (a) the Library Monitor Software and the Add-on Modules, and all
associated Intellectual Property Rights, shall be owned exclusively by
Developer, and (b) the Sun Features and all associated Intellectual Property
Rights shall be owned exclusively by Sun.
2.4 NO LIMITATIONS ON USE. Except as expressly set forth in this
Agreement, nothing contained in this Agreement shall be construed to limit or
restrict, in any way or manner, any right of either party to encumber,
transfer, license, access, reference, use, or practice any Technology owned or
to be owned by it in any way for any purpose or use, including products
competitive with the Developed Product.
2.5 FURTHER ASSURANCES. Each party agrees to cooperate with the
other and take all reasonable actions required to vest and secure in each party
the ownership rights and appurtenant Intellectual Property Rights as provided
in this Agreement. Should any such rights vest in a party by operation of law
or otherwise in a manner inconsistent with the parties' intentions as expressed
herein, then that party shall upon request by the other party promptly make the
appropriate and necessary assignment of rights to the other, and/or otherwise
take all steps reasonably requested to conform to the parties' respective
ownership rights with this Agreement, including but not limited to the
execution of recordable instruments and other documents necessary to perfect
such assignments. The parties agree that the costs attendant to such actions
shall be borne by the requesting party.
3. LICENSE GRANTS; OBLIGATIONS
3.1 LICENSES TO DEVELOPED PRODUCT. On the terms and subject to the
conditions set forth herein, Developer grants Sun a fully-paid, worldwide,
non-transferable (except as provided in Section 17.2), exclusive, irrevocable,
perpetual license to use the Library Monitor Software, in its Binary Code form,
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(a) in connection with the Sun DLT Library, (b) to support Sun's sale and
license of the Sun DLT Library to third parties, and/or (c) to copy, have
copied, distribute and sublicense the use of the Library Monitor Software,
pursuant to a binary code license substantially in the form of Sun's Binary
Code License, attached as Exhibit D, for distribution as part of the Sun DLT
Library or on a stand-alone basis. [ * ] The above exclusive license will
become non-exclusive, in the event the Corporate Supply Agreement or other
similar agreement between Sun and Developer covering the Sun DLT Library is
cancelled or terminated other than for breach by Developer. "FCS" as used in
this Agreement means the general release of a product, excluding alpha, beta
and early access versions.
3.2 LICENSES TO ADD-ON MODULES. On the terms and subject to the
conditions set forth herein, Developer grants Sun a fully-paid (except as
provided in Article 8), worldwide, non-transferable (except as provided in
Section 17.2), non-exclusive, irrevocable, perpetual license to use the Add-on
Modules, in their Binary Code form, (a) in connection with the Sun DLT Library,
(b) to support Sun's sale and license of the Sun DLT Library to third parties,
and/or (c) to copy, have copied, distribute and sublicense the use of the
Add-on Modules, pursuant to a binary code license substantially in the form of
Sun's Binary Code License, attached as Exhibit D, for distribution as part of
the Sun DLT Library or on a stand-alone basis. Developer agrees not to
incorporate the functionality provided by the Add-On Modules into the Library
Monitor Software or any library monitor software substantially similar to the
Library Monitor Software for a period of two (2) years after first customer
shipment by Sun of the Add-On Modules. Furthermore, Developer may not offer
the Add-On Modules or functionality substantially similar to the Add-On Modules
to customers of Developer (including OEMs) on terms equal to or more favorable
than those offered to Sun.
3.3 COMPATIBILITY AND BRANDING. The Developed Product will be
compatible and operate with the Designated Platform. The Developed Product may
be branded and marked by Sun under any Sun brand or mark.
3.4 IMPLEMENTATION OF ERROR CORRECTIONS AND UPDATES. Sun may
implement Error Corrections for any Errors detected by Developer in the
Developed Product, and may implement any Updates or Upgrades developed by it or
delivered by Developer in accordance with this Agreement.
3.5 NO OTHER RIGHTS. Other than the limited rights granted herein
neither party acquires any right, title or interest in or to the other party's
Technology, nor in the Intellectual Property Rights therein and appurtenant
thereto. Any purported grant of license or sublicense not expressly authorized
herein shall be void.
4. DELIVERY
4.1 DELIVERY OF DELIVERABLES ON TARGET DATES. Developer shall
deliver to Sun the Deliverables, including (a) the Library Monitor Software and
its related Add--.on Modules in Binary Code form, as set forth in the Statement
of Work, and (b) the Sun Features in Binary Code and Source Code forms.
4.2 DETECTED ERRORS. Each party shall promptly inform the other
party regarding any Errors it may detect in its relevant Technology or the
Developed Product.
4.3 DELIVERY OF ERROR CORRECTIONS, UPDATES, UPGRADES AND
DERIVATIVE WORKS. During the term of this Agreement, Developer shall, promptly
after its development, deliver to Sun at no charge any Error Corrections,
Updates, Upgrades and Derivative Works made by or for it with respect to the
Developed Product.
4.4 DELIVERY OF DEVELOPED PRODUCT. Upon completion of the
Developed Product, Developer shall deliver it to Sun for final evaluation and
testing. In connection with such delivery, Developer shall
* Confidential Treatment Requested for Redacted Portion
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prepare and deliver to Sun a detailed report with back-up documentation
evidencing that Developer has fully tested the Developed Product in accordance
with the Test Plan and has fully evaluated the Documentation, and reasonably
believes that the Developed Product is free from Non-Conformance and meets the
Acceptance Criteria as defined in the Statement of Work.
4.5 ESCROW. Concurrently with or promptly after the delivery to
Sun of any Developed Product in Binary Code form, Developer shall deliver any
Developer-owned Source Code for such Developed Product into an escrow account
to be mutually established by the parties with Data Securities International,
Inc. (the "Escrow Agent"). The parties shall execute documents providing for
the release of the Source Code to Sun from the Escrow Agent only upon
termination of this Agreement by Sun in accordance with the provisions of
Section 16.2 (Termination for Cause) or Section 16.3 (Termination for
Insolvency Event). In the event of the release of the Source Code to Sun, Sun
and its affiliates will have the unrestricted right to use the Source Code for
any purpose, including but not limited to the support of the Developed Products
and the development of new products, provided that Sun agrees not to license,
transfer or assign the Source Code to any third parties.
5. DEVELOPER'S OBLIGATIONS AND DEVELOPMENT UNDERTAKINGS
5.1 COMMITMENTS. During the course of the development work
described in this Agreement, Developer shall:
(a) develop the Developed Product according to the Statement of
Work, using diligent and good faith efforts to design, develop, complete, test,
and deliver to Sun all Deliverables by or before their associated Target Dates;
(b) commit and utilize sufficient resources and qualified
personnel necessary and appropriate for the timely and satisfactory completion
of the Developed Product;
(c) ensure that the Developed Product conforms to the
Specifications;
(d) cooperate with Sun and provide Sun reasonable access during
normal Developer business hours to personnel working on behalf of Developer in
connection with the Statement of Work;
(e) deliver to Sun the Deliverables;
(f) conduct periodic status meetings with Sun, at the frequency
reasonably requested by Sun, and provide a written status report to Sun
concerning Developer's progress on its Deliverables and other activities and
obligations required under this Agreement once every two (2) weeks;
(g) provide to Sun all engineering support, technical training,
Confidential Information and other resources which Developer in its reasonable
judgment deems appropriate to assist Sun with the Statement of Work; and
(h) notify Sun of any factor, occurrence, non-occurrence, or event
that is likely to cause a material delay in delivery of any Deliverable by or
before its associated Target Date, or that otherwise is likely to affect
adversely Developer's ability to meet any obligation under this Agreement.
5.2 USE OF DEVELOPMENT EQUIPMENT. During the Development Period,
unless otherwise agreed in writing by the parties, Developer shall not use or
permit use of the Development Equipment for any purpose other than development
of the Developed Product. After the Development Period,
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unless otherwise agreed between the parties, Developer shall return the
Development Equipment to Sun in accordance with the terms of the Equipment Loan
Agreement (as defined in Section 6.3).
5.3 TESTING. Developer shall perform and be responsible for the
testing and debugging of all releases of the Developed Product. Developer
shall provide all assistance necessary for Sun fully to test and evaluate the
Developed Product and the Sun DLT Library. Sun may test and/or examine each
such Deliverable according to the Test Plan and in the Test Environment to
determine whether it substantially and materially conforms to the
Specifications.
5.4 SCHEDULE CHANGES. In the event Developer determines that a
particular Target Date will likely be missed, it shall promptly give notice to
Sun setting forth in reasonable detail the reason for the anticipated delay,
any corrective measures Developer intends to undertake, and the estimated
revised Target Date. Any such estimated revised Target Date that is more than
five (5) days beyond the original Target Date shall be subject to Sun's written
approval. In the event the parties cannot agree on a proposed revised Target
Date, the matter shall be escalated to the respective management of the parties
for resolution and for termination of the Agreement, if management of the
parties cannot reach agreement in good faith. In the event Sun believes that
such delay materially compromises the viability of the development effort, Sun
may terminate the Agreement and/or any Corporate Supply Agreement or similar
agreement covering the Sun DLT Library for breach.
5.5 STATEMENT OF WORK. The Statement of Work sets forth the key
Deliverables and associated Target Dates as specified in Exhibit C. The parties
may, from time to time, and by mutual agreement, modify the Statement of Work,
provided that the key Deliverables and associated Target Dates may be modified
or deleted only by written modification to the Statement of Work attached
hereto as Exhibit C.
5.6 SPECIFICATIONS. The Specifications for the Developed Product
shall be as set forth in the Statement of Work.
6. SUN'S OBLIGATIONS
6.1 [ * ] SOFTWARE OPTION. At Sun's option, the [ * ] Software
and its related Add-on Modules and Sun Features will be developed by Developer
for Sun in accordance with the terms and conditions of this Agreement and such
other supplemental terms as may be mutually agreed upon by the parties. The
terms applicable to the [ * ] Software and its' related Add-on Modules and Sun
Features will be substantially the same as the terms applicable to the Library
Monitor Software and its related Add-on Modules and Sun Features. In the event
Sun desires to exercise such option, Sun will notify Developer in writing on or
prior to November 1, 1997. If Sun exercises such option, Sun and Developer
will promptly negotiate the detailed terms to be set forth in the Statement of
Work for the [ * ] Software and any supplemental terms that will apply to the
development.
6.2 SUPPORT AND INFORMATION. Sun will provide any engineering
support, technical training, Confidential Information, and other resources
which Sun in its reasonable judgment deems appropriate to assist Developer with
the Statement of Work ("Resources"). Sun shall not be obligated to provide
specific Resources or specific levels of any Resource unless expressly
specified in the Statement of Work.
* Confidential Treatment Requested for Redacted Portion
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6.3 DEVELOPMENT EQUIPMENT. Sun shall provide to Developer the
Development Equipment in accordance with and subject to the terms of the
Equipment Loan & Software License Agreement attached as Exhibit B (the
"Equipment Loan Agreement").
6.4 SUN UPDATES. Sun may, in its sole discretion, upgrade any Sun
Technology provided to Developer in the event that a new release becomes
available during the Development Period, and subject to Developer's written
agreement to any modification to the Statement of Work and/or scope of the
Developed Product requested by Sun, which agreement shall not be unreasonably
withheld.
7. EVALUATION AND ACCEPTANCE/REJECTION OF DELIVERABLES
7.1 ACCEPTANCE AND/OR REJECTION OF DELIVERABLES. Sun shall have
the right to evaluate and test each Deliverable at any time during its
development, and to observe testing conducted by Developer. Developer shall
deliver to Sun, at Sun's request, any Deliverable for evaluation or testing at
any time during its development, including but not limited to the dates set
forth in the Statement of Work. Developer shall provide all reasonable
assistance necessary for Sun fully to test and evaluate each Deliverable. Sun
shall have the right to reject any Deliverable because of any Non-Conformance.
Unless otherwise stated in the Statement of Work, Sun shall advise Developer in
writing within fifteen (15) business days of receipt of any Deliverable for
testing or evaluation whether Sun accepts or rejects such Deliverable. If Sun
rejects the Deliverable, then Sun shall provide to Developer a written
statement of the reasons for such rejection. Upon rejection, Developer shall
promptly prepare an Error Correction and resubmit such Deliverable to Sun for
evaluation pursuant to this Section.
7.2 ACCEPTANCE AND/OR REJECTION OF DEVELOPED PRODUCT. Unless
otherwise stated in the Statement of Work, Sun shall advise Developer in
writing within fifteen (15) business days of receipt of the completed
Developed Product for testing or evaluation whether Sun accepts or rejects such
Developed Product in accordance with the Acceptance Criteria. If Sun rejects
the Developed Product, then Sun shall provide to Developer a written statement
of the reasons for such rejection. Upon rejection, Developer shall promptly
prepare an Error Correction and resubmit such Developed Product to Sun for
evaluation pursuant to this Section. Continued failure of the Developed
Product to conform to the Acceptance Criteria shall constitute grounds for Sun
to terminate this Agreement unless the parties agree upon a plan to correct the
Non-Conformance.
8. FEES AND ROYALTIES
8.1 FEES. Sun agrees to pay to Developer the Fees specified in
Exhibit A, if any, on the dates set forth therein in connection with
Developer's performance of the initial Statement of Work. Fees for services
under additional Statements of Work shall be as set forth in this Agreement or
otherwise as agreed in writing by the parties.
8.2 ROYALTIES. Sun agrees to pay to Developer in U.S. Dollars the
Royalties specified in Exhibit A, if any. Royalties will be paid quarterly
within forty-five (45) days following the end o f the calendar quarter in which
the Developed Product ships. Payments shall be accompanied by a certified
statement of the number of Developed Product sold in the calendar quarter and
the total cumulative volume of Developed Product sold as of the end of that
quarter.
8.3 BOOKS AND ACCOUNTS. Sun will maintain accounts, books, and
records, consistent with generally accepted accounting principles, sufficient
to allow the correctness of the Royalties to be determined. Developer shall
have the right through an independent auditor to audit such accounts upon
reasonable notice first having been given.
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9. CONFIDENTIAL INFORMATION
9.1 LIMITED RIGHTS. Each party acknowledges that it acquires only
the right to use the other party's Confidential Information under the terms and
conditions of this AgreeMent for so long as it is in effect and does not
acquire any rights of ownership or title in the other party's Confidential
Information. Each party shall hold in confidence any Confidential Information
received by it from the other and shall protect the confidentiality of such
with the same degree of care that it exercises with respect to its own
information of like import, but in no event less than reasonable care, for a
period of five (5) years from receipt thereof, except that the obligation to
maintain and protect the confidentiality of Source Code shall continue in
perpetuity. Access to each party's Confidential Information shall be
restricted to the other party's employees and independent contractors with a
need to have access. In the event that the receiving party is required to
disclose Confidential Information pursuant to law, the receiving party shall
notify the other of the required disclosure with sufficient time to seek
relief, cooperate with the other party in taking appropriate protective
measures, and shall make such disclosure in the fashion which maximizes
protection of the Confidential Information from further disclosure. This
Article 9 will not affect any other confidential disclosure agreement between
the parties.
9.2 EMPLOYEES AND CONTRACTORS. The receiving party shall inform
its employees and/or contractors having access to Confidential Information of
the limitations, duties, and obligations regarding non-disclosure of
Confidential Information imposed by (a) this Agreement and/or (b) third parties
who have supplied information and/or technology to the disclosing party,
provided the disclosing party shall first have notified the receiving party of
any such obligations. The receiving party shall obtain or have obtained its
employees' and/or contractors' agreements to comply with such limitations,
duties and obligations. The receiving party agrees to provide notice to the
disclosing party immediately after learning of a breach of any of the
restrictions regarding confidentiality set forth in this Article 9.
9.3 COMPETITIVE PRODUCTS. Each party understands that the other
party may now or in the future be developing information internally, or
receiving information from third parties, that may be similar to the other
party's Confidential Information. Accordingly, nothing in this Agreement shall
be construed as a representation or inference that either party will not
develop or acquire products, for itself or others, that compete with the
technology, products, systems or methods contemplated by the other party's
Confidential Information, provided such party has not done so in breach of this
Agreement. Nothing in this Agreement shall prevent or be construed as
prohibiting either party from independently developing any product that
competes with or is similar to any of the other party's products.
9.4 ON-SITE EMPLOYEES. Developer will not seek access to,
receive, or use any Confidential Information of Sun or any of its affiliates
for which Developer does not have a need to know for the purposes of this
Agreement, and Developer's On-Site Employees will not disclose to Developer or
any third party any Confidential Information of Sun which he or she obtains
which Developer did not need to know for the purposes of this Agreement. As a
condition of their presence on Sun's premises, Developer's On-Site Employees
shall sign the agreement attached as Exhibit E.
9.5 INJUNCTIVE RELIEF. The parties acknowledge that any material
violation by a party ("Violating Party") of the rights and obligations provided
in this Article 9 may result in immediate and irreparable injury to the other
party ("Non-Violating Party"), and each hereby agrees that the Non-Violating
Party shall be entitled to immediate temporary, preliminary, and permanent
injunctive relief against any such continued violations upon adequate proof, as
required by applicable law.
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The parties hereby submit themselves to the personal jurisdiction of the courts
of competent subject matter jurisdiction, provided below, for purposes of entry
of such injunctive relief.
10. PROPRIETARY NOTICES
10.1 RETENTION OF NOTICES. Neither party shall delete any
copyright notices and/or other proprietary notices included on or embedded in
the Developed Product or the other party's Technology.
10.2 REFERENCE TO OTHER'S TRADEMARKS. Except as expressly provided
in this Agreement, or later provided by written modification to this Agreement
and/or execution of any necessary trademark licenses, neither party is granted
any right, title, interest, or license to use the other party's trademarks,
tradenames, logos, product designs, corporate identities, or other marketing
designations or brands ("Trademarks") used in connection with the parties'
products, technologies, or businesses. Specifically, Developer shall not use
the names "Sun," "Solaris," "Java," or any other Sun Trademark in the name of
Developer's products (e.g., Developer's products may not be named "SunXYZ" or
"JavaXYZ" or "XYZ for Solaris").
11. SUPPORT
11.1 DEVELOPER'S SUPPORT. Developer shall provide support to Sun
as set forth on Exhibit F during the Development Period and for a period agreed
to in connection with the Award Letter (as defined in Section 13).
11.2 LIMITATIONS ON SUPPORT. Developer acknowledges and agrees
that, other than Sun's frontline support of Developed Product distributed by
Sun, Sun is not obligated in any way to maintain or provide support to
Developer or its customers. Developer shall be solely responsible for
maintaining and supporting its customers and shall not refer its customers to
Sun for support.
12. OEM RELATIONSHIP
12.1 COMMENCEMENT OF RELATIONSHIP. The parties intend to enter
into an original equipment manufacturer ("OEM") relationship, wherein, after
Sun's acceptance of the Developed Product and the Sun DLT Library, Developer
will sell the Sun DLT Library exclusively to Sun for distribution by Sun in
accordance with the terms of an Award Letter (the "Award Letter"),
substantially in the form of Exhibit G hereto. The parties acknowledge that
the final terms of the Award Letter are still being negotiated.
13. REPRESENTATIONS AND WARRANTIES
13.1 WARRANTY RE DEVELOPED PRODUCT. Developer represents and
warrants to Sun that the Developed Product will conform to the Specifications
and Documentation.
13.2 AUTHORIZATION. Each party represents and warrants that it has
the right to enter into this Agreement, and that there exist no prior
commitments or other obligations which prevent such party from making all of
the grants and undertakings provided for in this Agreement.
13.3 DISCLAIMER. Except as expressly warranted above, each of the
parties' respective Technology is provided "ASIS" and without any warranty of
any kind. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL
OTHER WARRANTIES WITH RESPECT TO ALL TECHNOLOGY, CONFIDENTIAL INFORMATION,
DOCUMENTATION, MATERIALS, SERVICES, AND ALL OTHER MATTER PROVIDED HEREUNDER,
INCLUDING WITHOUT LIMITATION
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ANY WARRANTY OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR TRADE PRACTICE. Sun
shall not be liable to Developer for any defects or deficiencies in the
Developed Product whether or not caused, in whole or in part, by defects or
deficiencies in any Technology provided or developed by Sun. Developer shall
not be liable to Sun for any defects or deficiencies in the Developed Product
caused by defects or deficiencies in any Technology provided by Sun.
14. LIMITATION OF LIABILITY
14.1 EXCEPT FOR A VIOLATION OF ARTICLE 9 OR THE OBLIGATIONS OF
ARTICLE 15, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE
PERFORMANCE OF OR ALLEGED FAILURE TO PERFORM THIS AGREEMENT (INCLUDING LOSS OF
REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE
THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE OCCURRING.
14.2 EACH PARTY ACKNOWLEDGES THAT THE TECHNOLOGY OF THE OTHER PARTY
IS NOT DESIGNED OR INTENDED FOR USE IN ON-LINE CONTROL OF AIRCRAFT, AIR
TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS; OR IN THE DESIGN,
CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY, AND EACH PARTY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. EACH PARTY
REPRESENTS AND WARRANTS THAT IT WILL NOT USE OR RESELL PRODUCTS EMBODYING THE
TECHNOLOGY OF THE OTHER PARTY FOR SUCH PURPOSES.
15. INTELLECTUAL PROPERTY INDEMNIFICATION
15.1 INDEMNITY. Developer will defend at its expense any legal
proceeding brought against Sun, to the extent that it is based on a claim that
a Deliverable, the Developed Product or any part thereof, infringes or
misappropriates any Intellectual Property Right of a third party, except to the
extent that such claim arises out of (a) any Sun Technology; or (b) any
combination by Sun of the Deliverable or the Developed Product with products
not provided by Developer. Developer will pay all damages and costs finally
awarded by a court attributable to such claim, provided that Sun: (i) promptly
notifies Developer in writing of such claim; (ii) gives Developer all
reasonably requested information which Sun has concerning the claim; (iii)
reasonably cooperates with and assists Developer, at Developer's expense, in
the defense of such claim; and (iv) gives Developer sole authority to control
the defense and settlement of any such claim, except that Developer shall not
enter into any settlement that materially adversely affects Sun's rights or
interests, without Sun's prior written approval. Sun shall have no authority
to settle any claim on behalf of Developer.
15.2 ADDITIONAL OBLIGATION. Should the use and/or distribution of
the Developed Product be enjoined or become the subject of a claim of
infringement, Developer shall either (a) procure for Sun the right to continue
to use and distribute the same, or (b) replace or modify the same to make it
non-infringing without materially changing the form, fit, and function of the
Developed Product.
16. TERM AND TERMINATION
16.1 TERM OF AGREEMENT. This Agreement shall commence on the
Effective Date and expire five (5) years after Sun's first customer shipment of
the last Developed Product developed under this Agreement (the "Initial Term").
At the end of the Initial Term, this Agreement shall automatically be renewed
for successive additional one (1) year periods, (a) unless either party
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notifies the other in writing at least six (6) months prior to the expiration
of the current term of its desire to terminate this Agreement in which case
this Agreement shall expire at the end of the current term, or (b) until Sun
notifies Developer in writing that it no longer intends to purchase the Sun DLT
Library from Developer in which case this Agreement shall expire at the end of
the then-current term.
16.2 TERMINATION FOR CAUSE. If either party commits a material
breach of the terms and conditions of this Agreement, the other party may
terminate this Agreement upon sixty (60) days' prior written notice to the
defaulting party describing in reasonable detail such breach, unless within
sixty (60) day period after receipt of such Notice all breaches specified
therein shall have been remedied, or if the breach is one which by its nature
cannot be fully remedied in sixty (60) days, the party has taken substantial
measures toward remedying the breach within sixty (60) days, has provided a
written plan for remedying such breach which is acceptable to the non-breaching
party, and continues to use best efforts to remedy the breach promptly,
provided that such period cannot exceed a total of one hundred twenty (120)
days.
16.3 TERMINATION FOR INSOLVENCY EVENT. This Agreement may be
terminated at the option of the terminating party upon written notice thereof
upon the occurrence of any of the following events with respect to the other
party: (i) a receiver is appointed for such party or its property; (ii) such
party makes a general assignment for the benefit of its creditors; (iii) such
party commences, or has commenced against it, proceedings under any bankruptcy,
insolvency or debtor's relief law, which proceedings are not dismissed within
sixty (60) days; or (iv) such party is liquidated or dissolved.
16.4 CHANGE OF CONTROL. In the event more than twenty percent
(20%) of the equitable ownership of Developer is transferred to a direct
competitor of Sun, Sun may, at its option, terminate the license granted under
the Equipment Loan Agreement, or terminate this Agreement in its entirety, upon
notice to Developer.
16.5 SURVIVAL OF RIGHTS AND OBLIGATIONS UPON TERMINATION. The
provisions of Articles 2, 3, 9, 10, 11, 12, 13, 14, 15, 16, and the relevant
provisions of Article 17, and any other term or condition which by its nature
is clearly intended to survive the expiration or termination of this Agreement,
shall survive any expiration or termination of this Agreement. ln addition,
upon termination of this Agreement for any reason the licenses necessary to Sun
for distribution of the Developed Product or Derivative Works, if otherwise
terminable, shall survive for twelve (12) months from the date of termination.
The expiration or termination of this Agreement shall not affect the Award
Letter, except as provided therein.
16.6 RETURN OF MATERIALS UPON TERMINATION. In the event of
termination, upon notice from the disclosing party, all materials containing
Technology or Confidential Information of the disclosing party shall be
returned promptly to that party or destroyed and certified as same by an
officer of the receiving party, except for materials necessary to the receiving
party to fulfill its support obligations to its licensees or end users.
17. MISCELLANEOUS
17.1 FORCE MAJEURE. A party is not liable for nonperformance of
this Agreement for non-performance caused by events or conditions beyond that
party's control, it the party makes reasonable efforts to perform. This
provision does not relieve either party of its obligation to make payments then
owing.
Confidential 13 ATL Dev & Lic Agreement
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<PAGE> 14
17.2 ASSIGNMENT. Neither party may assign or otherwise transfer
any of its rights or obligations under this Agreement, without the prior
written consent of the other party, except that Sun may assign this Agreement
to an affiliated company. For purposes of this Agreement, "affiliated company"
means Sun Microsystems, Inc. ("SMI"), any division thereof, or any company of
which more than 50% of the voting stock is owned or controlled by SMI.
17.3 RELATIONSHIP OF PARTIES. This Agreement is not intended to
create a relationship such as a partnership, franchise, joint venture, agency,
employment relationship. Neither party shall act in a manner which expresses
or implies a relationship other than that of independent contractor, nor bind
the other party.
17.4 WAIVER OR DELAY. Any express waiver or failure to exercise
promptly any right under this Agreement will not create a continuing waiver or
any expectation of non-enforcement.
17.5 SEVERABILITY. If any term or provision of this Agreement is
found to be invalid under any applicable statute or rule of law then, that
provision notwithstanding, this Agreement shall remain in full force and effect
and such provision shall be deemed omitted.
17.6 EXPORT CONTROL. Technology delivered under this Agreement is
subject to U.S. export control laws and may be subject to export or import
regulations in other countries. Each party agrees to comply strictly with all
such laws and regulations and acknowledges that it has the responsibility to
obtain such licenses to export, re-export, or import as may be required after
receipt of the other's Technology.
17.7 BENEFICIARIES. This Agreement is made for the benefit of the
parties hereto, and not for the benefit of any third parties unless otherwise
stated herein.
17.8 GOVERNING LAW AND JURISDICTION. Any action related to this
Agreement will be governed by California law and controlling U.S. federal law.
No choice of law rules of any jurisdiction will apply. Any action brought
hereunder shall be brought exclusively in the United States District Court for
the Northern District of California or the California Superior Court for the
County of Santa Clara, as applicable, applying the governing law of this
Agreement.
17.9 NOTICES. All notices required to be given under this
Agreement shall be deemed to have been given upon receipt at the addresses
listed above. Either party may change its address for the purpose of this
Agreement by giving the other party written notice of its new address.
17.10 HEADINGS. Headings used in this Agreement are for ease of
reference only and shall not be used to interpret any aspect of this Agreement.
17.11 ENTIRE AGREEMENT. This Agreement, together with its Exhibits
and any On-Site Employee Confidentiality Agreements entered into in accordance
with this Agreement, is the parties' entire understanding and agreement with
respect to its subject matter and supersedes (a) all prior or contemporaneous
oral or written communications, proposals, understandings, and representations
with respect to its subject matter; and (b) any conflicting terms of any quote,
order, acknowledgment, or similar communication between the parties. This
Agreement may not be modified or amended, in whole or in part, except in a
writing executed by duly authorized representatives of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Confidential 14 ATL Dev & Lic Agreement
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<PAGE> 15
<TABLE>
<S> <C>
SUN MICROSYSTEMS, INC., BY ITS DIVISION ATL PRODUCTS, INC.
SUN MICROSYSTEMS COMPUTER COMPANY
By: /s/ Kathleen M. Holmgren By: /s/ Kevin C. Daly
-------------------------------------------------- -------------------------------------------
Name: Kathleen M. Holmgren Name: Kevin C. Daly
------------------------------------------------ -----------------------------------------
Title: VP/GM Strange Products Title: C.E.O.
----------------------------------------------- ----------------------------------------
Date: January 16, 1997 Date: January 15, 1997
------------------------------------------------ -----------------------------------------
</TABLE>
Confidential 15 ATL Dev & Lic Agreement
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<PAGE> 16
EXHIBIT A
FEES AND ROYALTIES
1. LIBRARY MONITOR SOFTWARE:
Fee: [ * ]
Royalty: [ * ]
ADD-ON MODULES:
Fee: [ * ]
Royalty: [ * ]
SUN FEATURES:
Fee: Sun will pay Developer an NRE fee to be
mutually agreed upon by Sun Developer when
Sun Features are added to Statement of Work.
Royalty: [ * ] by Sun to Developer for Sun Features.
2. [ * ] SOFTWARE:
Fee: [ * ]
Royalty: [ * ]
ADD-ON MODULES:
Fee: [ * ] by Sun to Developer for development of
Add-on Modules to be mutually agreed upon by
Sun and Developer when Add-on Modules are
added to Statement of Work.
Royalty: [ * ] for the Application Add-on Module or
the Device Add-on Module. Royalty for other
Add-on Modules, if any, to be mutually agreed
upon by Sun and Developer when Add-on Modules
are added to Statement of Work.
SUN FEATURES:
Fee: Sun will pay Developer an NRE fee to be
mutually agreed upon by Sun and Developer
when Sun Features are added to Statement of
Work.
Royalty: [ * ] by Sun to Developer for Sun Features.
* Confidential Treatment Requested for Redacted Portion
Confidential 16 ATL Dev & Lic Agreement
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<PAGE> 17
EXHIBIT B
EQUIPMENT LOAN AND SOFTWARE LICENSE AGREEMENT
Sun agrees to loan to ATL Products, Inc. ("Licensee"), free of charge on the
terms and conditions of this Equipment Loan and Software License Agreement, the
equipment and/or software identified in this Exhibit B. Licensee acknowledges
and agrees that it may use the loaned equipment solely in connection with the
purposes set forth in the Agreement.
________________________________________________________________________________
1. LOANED/LICENSED TO:
2. DESIGNATED SITE:
3. DESIGNATED EQUIPMENT FOR LOANED SOFTWARE:
4. PRIMARY & SECONDARY CONTACTS FOR LICENSEE:
5. LOAN PERIOD:
Delivery Date: __________________________________
Return: 30 days after termination of the Agreement or completion of
Licensee's development obligations under this Agreement, whichever
occurs first.
6. DESCRIPTION OF LOANED EQUIPMENT (HARDWARE):
PRODUCT ID MODEL OR RELEASE PART # SERIAL # QUANTITY LIST PRICE
1.
2.
3.
4.
________________________________________________________________________________
7. DESCRIPTION OF LOANED EQUIPMENT (SOFTWARE AND DOCUMENTATION):
PRODUCT ID MODEL OR RELEASE PART # SERIAL # QUANTITY LIST PRICE
1.
2.
3.
4.
Confidential 17 ATL Dev & Lic Agreement
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<PAGE> 18
TERMS AND CONDITIONS
This Agreement is made and entered into as of the Delivery Date by and between
Sun Microsystems, Inc., acting by and through its division Sun Microsystems
Computer Company ("Sun") and the company named on the preceding page
("Bailee").
1.0 USE AND LOCATION OF PRODUCTS
Bailee shall use the Loaned Equipment and/or Loaned Software (collectively
referred to as "Products") solely for the purposes set forth in the attached
Agreement. Bailee shall be solely responsible for installation of the Products
at the Designated Site.
2.0 TITLE
Title and full ownership rights to the loaned Equipment are and shall remain
with Sun. Sun hereby reserves, and Bailee hereby agrees that Sun shall have, a
security interest in the Loaned Equipment, and Bailee further agrees to execute
and deliver, upon request, UCC-1 financing statements or any other instruments,
recordings, or filings deemed necessary by Sun to perfect and preserve its
right, title, and interest in and to the Loaned Equipment under applicable
local law. Baile shall not move the Loaned Equipment or any portion thereof
from the Designated Site without the prior written approval of Sun.
3.0 TERM AND TERMINATION
3.1 This Agreement shall be effective upon the first delivery of
Products and it shall remain in force until the Return Date specified on the
reverse side. Either party may terminate this Agreement at any time for any
reason.
3.2 Upon the termination of this Agreement for any reason, Bailee
shall immediately terminate use of the Products, and within five (5) days
return the Products to Sun.
4.0 RISK OF LOSS OR DAMAGE
Bailee shall be responsible for the Products from the time they are delivered
to Bailee or a common carrier, as the case may be, until they are returned to
Sun. Bailee shall reimburse Sun for any damage to the Products sustained
during this time period, except for reasonable wear and tear. Bailee shall
insure the Loaned Equipment against loss or damage during the term of this
Agreement, and shall deliver to Sun, upon request, proof of such insurance.
Upon return of the Products, Sun shall provide Bailee with an invoice for
damage to the Products, payable by Bailee upon receipt. Failure by Sun to
provide such an invoice within sixty (60) days following return of the Products
by Bailee shall constitute acceptance of the Products "as is," and no
reimbursement by Bailee shall be required.
5.0 SOFTWARE LICENSE
5.1 Loaned Software is confidential and proprietary information of
Sun and/or its licensors. Bailee agrees to take adequate steps to protect
Loaned Software from unauthorized disclosure or use.
5.2 Except as specifically authorized in Paragraph 1 above, Bailee
shall not modify, decompile, disassemble, decrypt, extract, or otherwise
reverse engineer Loaned Software, except to the extent any of the foregoing
limitations are unenforceable under applicable law.
6.0 DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
6.1 THE PRODUCTS ARE PROVIDED "AS IS." SUN MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS.
6.2 IN NO EVENT SHALL SUN BE LIABLE FOR ANY DIRECT, SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATED TO THIS AGREEMENT OR THE
USE OF THE PRODUCTS, EVEN IF SUN HAS BEEN ADVISED OF OR OTHERWISE HAS REASON TO
KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
7.0 COMPLIANCE WITH U.S. EXPORT CONTROL LEGISLATION
Products, including technical data, are subject to U.S. export control laws,
including the U.S. Export Administration Act and its associated regulations,
and may be subject to export or import regulations in other countries. Baile
agrees to comply strictly with all such regulations and acknowledges that it
has the responsibility to obtain licenses to export, re-export, or import
Products.
8.0 PROHIBITED PURPOSES
PRODUCTS ARE NOT DESIGNED OR LICENSED FOR USE IN ON-LINE CONTROL EQUIPMENT IN
HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR CONTROL, OR DIRECT LIFE SUPPORT MACHINES, AND BAILEE SHALL NOT
USE PRODUCTS IN SUCH APPLICATIONS.
9.0 MISCELLANEOUS
9.1 This Agreement is the parties' entire agreement relating to
loan of the Products and supersedes all prior or contemporaneous oral or
written communications, proposals, and representations with respect to its
subject matter. No modification to this Agreement will be binding, unless in
writing and signed by a duly authorized representative of each party.
9.2 Neither party shall assign or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent of
the other party, except that Sun may freely assign this Agreement to an
affiliated company.
9.3 If any term or provision of this Agreement is found to be
invalid under any applicable statute or rule of law, then, that provision
notwithstanding, this Agreement shall remain in full force and effect and such
provision shall be deleted.
9.4 This Agreement may not be modified, amended, rescinded,
canceled, or waived, in whole or part, except by a written instrument signed by
the parties.
9.5 Any action related to this Agreement shall be governed by
California law, excluding choice of law rules.
9.6 In addition to any other relief, the prevailing party in any
action arising out of this Agreement shall be entitled to attorneys' fees and
costs.
9.7 "Sun Trademarks" means all marks, names, logos, designs, and
other designations or brands used by Sun in connection with Products, including
but not limited to Sun, Sun Microsystems, the Sun Logo, and Product designs.
Bailee is granted no right or license to use any Sun Trademarks, or any
confusingly similar designation or foreign equivalent. Bailee shall display
Products with the Sun trademarks as affixed by Sun and shall not remove, alter,
or add to any Sun Trademarks.
Confidential 18 ATL Dev & Lic Agreement
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<PAGE> 19
EXHIBIT C
STATEMENT OF WORK
Confidential 19 ATL Dev & Lic Agreement
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<PAGE> 20
Revision 5 12/14/96
STATEMENT OF WORK BETWEEN
SUN MICROSYSTEMS AND ATL PRODUCTS
FOR THE SUN LIBRARY MONITOR
INTRODUCTION
This document details the statement of work between Sun Microsystems and ATL
Products for providing the Sun LibMON Version 1.0 software product. [ * ] The
LibMON software will initially be co-packaged with the ATL hardware tape
library which Sun will be OEMing [ * ]. This software will start shipping with
the customized tape library [ * ]
This document is divided into three sections covering product overview, key
activities and deliverables.
This document will become a referenced document in the contractual agreement
between Sun and ATL. It is the intent of both Sun and ATL to satisfy this
statement of work during the program development. However, it is recognized
that the specifics covered in this document may change as more information
becomes apparent during the development phase and testing phases of the
program. Should this occur, the changes will be communicated in the required
status reporting mechanisms and jointly approved in the functional
specifications.
* Confidential Treatment Requested for Redacted Portion
<PAGE> 21
Revision 5 12/14/96
SUN MICROSYSTEMS AND ATL PRODUCTS Confidential
1.0 PRODUCT OVERVIEW
1.1 FEATURES SUPPORTED IN VERSION 1.0 AS PART OF BASE PACKAGE
[ * ]
1.2 USER INTERFACE
[ * ]
1.3 EVENT NOTIFICATION
[ * ]
1.4 DOCUMENTATION
Delivered with User guide
Support of on-line User guide
Support of On-line help through JMAPI AVM Help
Hardcopy and on-line documentation to be offered. On-line help to be available
through JMAPI
1.5 LIBRARIES
Support of all ATL Hardware libraries
- Sun OEMed as well as standard ATL Libraries
1.6 SUN DIFFERENTAIATORS
[ * ]
2.0 STATEMENT OF WORK ACTIVITIES
2.1 ATL WORK/ACTIVITIES:
Design, code, and test LibMON to meet the functionality described in section
1.0.
Provide high level design documentation as defined in the deliverables section
for Sun's archives.
Perform testing to comply with standards mutually agreed to by Sun and ATL on
LibMON. Provide test reports and documentation as defined in ATL test
and integration plan.
Verify LibMON functionality and product specification on a "representative"
host platform, running Solaris versions 2.4, 2.5, 2.5.1, and 2.6 (when
available) with Netscape and Explorer browsers.
Develop and test Install package, conforming to Sun's requirements.
* Confidential Treatment Requested for Redacted Portion
Page 2 of 5 SUN MICROSYSTEMS AND ATL PRODUCTS Confidential
<PAGE> 22
Revision 5 12/14/96
Publications - Sun to provide publication templates , ATL to provide
publications for LibMON such as installation and user manuals per
Sun's templates. Sun to add cover sheet where applicable. The format
of these media: CD, electronic files, etc. will be mutually agreed
upon.
Provide training to Sun's trainers on the design, use and serviceability
aspects of LibMON 1.0.
Field service & support - supply necessary training and applicable
documentation which include but not limited to transfer of
information, installation, bring-up, service and diagnostic manuals,
user documentation, etc.
All the above to be performed to agreed upon specifications, test plans and
procedures, (detailed in Section 4.0) and schedule (detailed in
Section 5.0).
In the event that during or after the development phase of LibMON, it is
determined that LibMON fails to conform to these specifications or
intended functions, then ATL will (1) implement necessary design
changes, and (2) amend the test plans to test the changes and ensure
the correct operation of the functions that failed to conform.
Page 3 of 5 SUN MICROSYSTEMS AND ATL PRODUCTS Confidential
<PAGE> 23
Revision 5 12/14/96
2.2 SUN'S WORK/ACTIVITIES:
Provide ATL with JMAPI Style guide as well as contact in JMAPI engineering.
Have Sun Human Factors group review and provide feedback to ATL.
Assist ATL during testing and perform verification testing.
Provide copies of all Sun unique documentation and document templates that ATL
is required to comply with.
Provide ATL with Sun unique licensing requirements.
Provide ATL with Sun unique software install requirements.
Provide ATL with Sun product name.
Provide Internet Server requirements.
2.2.1 SUN PROVIDED EQUIPMENT LIST
This list reflects the list of equipment requested by ATL.
- As of 12/14/96, ATL is not requesting any equipment
EQUIPMENT REQUESTED DATE
3.0 DELIVERABLES
The dates reflect planning dates. Penalties for not complying is covered
within the contract.
<TABLE>
<CAPTION>
PLANNED
DELIVERABLE FROM TO DATE
- ----------- ---- -- ---------------
<S> <C> <C> <C>
[ * ] [ * ] [ * ] [ * ]
</TABLE>
4.0 APPLICABLE SPECIFICATIONS, TEST PLANS AND PROCEDURES
SUN PART NUMBER DOCUMENT TITLE
802-7709-10 JavaManagement API User Interface Style Guide
ATL PART NUMBER DOCUMENT TITLE
ATL to complete as necessary
INDUSTRY STANDARD SPECIFICATIONS
ANSI X3.131 Small Computer Systems Interface-2, SCSI-2
ANSI X3Tl 0/995D Information Technology - SCSI-3 Primary Commands
HP Tape Alert Commands
5.0 MAJOR PROJECT MILESTONES
MILESTONE DATE
[ * ] [ * ]
* Confidential Treatment Requested for Redacted Portion
Page 4 of 5 SUN MICROSYSTEMS AND ATL PRODUCTS Confidential
<PAGE> 24
Revision 5 12/14/96
6.0 FUTURE ACTIVITIES BEYOND THE FIRST RELEASE
Sun and ATL plan to continue enhancing the base product called out in this
Statement of Work. The specifics of these enhancements will be defined during
the development of this Version 1.0 product. [ * ]
As new versions of LibMON are released, new functionality will fall into one of
three catagories.
1. [ * ]
2. [ * ]
3. [ * ]
The attached Marketing Requirements Document entitled Web Storage Monitor,
Revision X3, from ATL outlines the features planned for the Add-on Modules.
The modules include the Application Module, the Device Module and the Service
Module.
As these changes occur, Sun and ATL will mutually agree to the testing levels
that ATL will need to perform.
* Confidential Treatment Requested for Redacted Portion
Page 5 of 5 SUN MICROSYSTEMS AND ATL PRODUCTS Confidential
<PAGE> 25
Market Requirements Document*
[*]
Revision: X3
Date: 11/5/96
A T L
P R O D U C T S
AN ODETICS COMPANY
ATL Products, Inc., 1515 South Manchester, Anaheim, CA 92802-2907
World-Wide Web URL: http://www.atip.com
ATL/Sun Confidential
* Confidential Treatment Requested for Pages 1-11 of Document
<PAGE> 26
EXHIBIT D
END-USER BINARY CODE LICENSE
SUN IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE TO YOU ONLY UPON THE
CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT.
READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE OPENING THE
SOFTWARE MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND
BY THIS AGREEMENT, RETURN THE SOFTWARE UNUSED WITHIN FIFTEEN (15) DAYS OF
PURCHASE FOR A REFUND OF THE LICENSE FEE PAID.
1. LICENSE TO USE. Customer is granted a non-exclusive and
non-transferable license ("License") for the use of the accompanying binary
software in machine-readable form, together with accompanying documentation
("Software"), by the number of users and the class of computer hardware for
which the corresponding fee has been paid.
2. LICENSE TO DEVELOP. This License authorizes Customer to develop
software programs utilizing the Software. However, in the event that Customer
desires to develop software programs which incorporate portions of Software
("Developed Programs"), the following provisions apply, to the extent
applicable: Developed Programs are to have an application programming
interface that is the same as Software; fonts within Software are to remain
associated with their toolkit or server; Developed Programs may be used and
distributed, but only on computer equipment licensed to utilize Software,
unless an additional Licensee's License Agreement has been executed by Sun and
Customer; Customer is not licensed to develop printing applications or print,
unless Customer has secured a valid printing license; incorporation of portions
of Motif(R) in Developed Programs may require reporting of copies of Developed
Programs to Sun; and Customer agrees to indemnify, hold harmless and defend Sun
and its licensors from and against any claims or suits, including attorneys'
fees, which arise or result from distribution or use of Developed Programs to
the extent such claims or suits arise from the development performed by
Customer.
3. RESTRICTIONS. Software is copyrighted and title to all copies is
retained by Sun and/or its licensors. Customer shall not make copies of
Software, other than a single copy of Software for archival purposes and, if
applicable, Customer may, for its internal use only, print the number of copies
of on-line documentation for which the applicable fee has been paid, in which
event all proprietary rights notices on Software shall be reproduced and
applied. Except as specifically authorized in Paragraph 2 above or unless
enforcement of this provision is prohibited by applicable law, Customer shall
not modify, decompile, disassemble, decrypt, extract, or otherwise reverse
engineer Software. SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN ON-LINE
CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION OR CONTROL, OR DIRECT LIFE SUPPORT MACHINES.
4. CONFIDENTIALITY. Software is confidential and proprietary information
of Sun and/or its licensors. Customer agrees to take adequate steps to protect
Software from unauthorized disclosure or use.
5. LIMITED WARRANTY. Sun warrants that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt: (i) the media
on which Software is furnished will be free of defects in materials and
workmanship under normal use; and (ii) the Software contains the features
described in the Sun price list. Otherwise, the Software is provided "AS IS".
This limited warranty extends only to Customer as the original licensee.
Customer's exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to repair, replace, or refund the license fee
paid therefor.
6. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS LICENSE, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL SUN BE LIABLE FOR ANY LOST
REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL,
OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY
ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Sun's liability
to Customer, whether in contract, tort (including negligence), or otherwise,
exceed the license fee paid by Customer for Software. The foregoing
limitations shall apply even if the above stated warranty fails of its
essential purpose.
8. TERMINATION. This License is effective until terminated. Customer
may terminate this License at any time by destroying all copies of Software
including any documentation. This License will terminate immediately without
notice from Sun if Customer fails to comply with any provision of this License.
Upon termination, Customer must destroy all copies of software.
Confidential ATL Dev & Lic Agreement
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<PAGE> 27
9. EXPORT REGULATIONS. Software, including technical data, is subject to
U.S. export control laws, including the U.S. Export Administration Act and its
associated regulations, and may be subject to export or import regulations in
other countries. Customer agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If Customer is acquiring
technology on behalf of the U.S. Government, use, duplication or disclosure is
subject to restrictions of FAR 52.227-14(g)(2)(6/87) and FAR 52.227-19(6/87),
or DFAR 252.227-7015(b)(6/95) and DFAR 227.7202- 3(a).
11. GOVERNING LAW. This Agreement is made under, shall be governed by,
and construed in accordance with the laws of the State of California, U.S.A.,
excluding its choice of law provisions.
12. SEVERABILITY. If any of the above provisions are held to be in
violation of applicable law, void, or unenforceable in any jurisdiction, then
such provisions are herewith waived to the extent necessary for the License to
be otherwise enforceable in such jurisdiction. However, if in Sun's opinion
deletion of any provisions of the License by operation of this paragraph
unreasonably compromises the rights or liabilities of Sun or its licensors, Sun
reserves the right to terminate the License and refund the fee paid by Customer
as Customer's sole and exclusive remedy.
13. INTEGRATION. This Agreement is the entire agreement between Customer
and Sun relating to Software and: (i) supersedes all prior or contemporaneous
oral or written communications, proposals, and representations with respect to
its subject matter; and (ii) prevails over any conflicting or additional terms
of any quote, order, acknowledgement, or similar communication between the
parties during the term of this Agreement. No modification to this Agreement
will be binding, unless in writing and signed by a duly authorized
representative of each party.
Confidential ATL Dev & Lic Agreement
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<PAGE> 28
EXHIBIT E
ON-SITE EMPLOYEE CONFIDENTIALITY AGREEMENT
Effective Date: _______________________
Sun Microsystems, Inc., by and through its Sun Microsystems Computer Company
division ("Sun"), and the "Recipient" identified below agree that:
1. Recipient is identified as:_________________________________________
2. The Sun Confidential Information disclosed under this Agreement
("Confidential Information") is intended to include only information pertaining
to the [IDENTIFY TECHNOLOGY] which is the subject matter of the [IDENTIFY THE
RELATED AGREEMENT] ("Agreement") between Sun and [IDENTIFY RECIPIENT'S
EMPLOYER] and which is disclosed orally or in written or other tangible form
and identified as confidential or proprietary (or with words of similar
meaning), or should reasonably be understood to be confidential. This On-Site
Agreement does not provide any rights or privileges with respect to Sun
information not pertaining directly to the Confidential Information disclosed
under the Agreement ("Other Sun Information").
3. Confidential Information may be used by Recipient solely in connection
with and subject to the terms of the Agreement.
4. The term of this agreement is from the Effective Date until twelve
(12) months thereafter.
5. Recipient's obligations regarding Confidential Information survive the
termination of this On-Site Agreement until [HOW MANY YEARS?] (___) years after
the date of disclosure of the particular Confidential Information (except for
source code and Other Sun Information, which shall be protected perpetuity).
6. Confidential Information shall be used solely as permitted above and
shall not be disclosed to a third party other than as permitted under the
Agreement. Recipient agrees that he or she will not seek access to, receive,
use, or disclose to [RECIPIENT'S EMPLOYER] or any other party any Confidential
Information or Other Sun Information of Sun or its affiliates for which
Recipient does not have a need to know for the purposes of the Agreement.
Recipient shall hold Confidential Information in strict confidence and shall
provide Confidential Information (a) only to employees of [RECIPIENT'S
EMPLOYER] who are bound to keep the Confidential Information confidential, and
(b) only on a need-to-know basis. Other Sun Information which Recipient
obtains which Recipient did not need to know for the purposes of the Agreement
may not be disclosed even to [RECIPIENT'S EMPLOYER], nor retained or used by
Recipient for any purpose. Upon the earlier of termination of this On-Site
Agreement, the Agreement, or Sun's written request, Recipient shall cease use
of Confidential Information and return or destroy all Confidential Information.
7. This On-Site Agreement imposes no obligation upon Recipient with
respect to Confidential Information or Other Sun Information which Recipient
can establish by legally sufficient evidence: (a) was in the possession of, or
was known by, Recipient prior to its receipt from Sun, without an obligation to
maintain its confidentiality; (b) is or becomes generally known to the public
without violation of this Agreement; (c) is obtained by Recipient from a third
party, without an obligation to keep such information confidential; or (d) is
independently developed by Recipient without the use of Confidential
Information. Disclosure of Confidential Information is not prohibited if prior
notice is given to Sun and such disclosure is (a) compelled pursuant to a legal
proceeding, or (b) otherwise required by laws.
8. CONFIDENTIAL INFORMATION IS DELIVERED "AS IS," AND ALL REPRESENTATIONS
AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
9. Sun retains ownership of Confidential Information. Recipient does not
acquire any rights in Confidential Information, except the limited right to use
Confidential Information as described above.
10. Recipient agrees that any breach of this On-Site Agreement will result
in irreparable harm to Sun for which damages would be an inadequate remedy and,
therefore, in addition to its rights and remedies otherwise available at law,
Sun shall be entitled to equitable relief, including injunction, in the event
of such breach. Recipient waives any requirement for the posting of a bond or
other security in the event that Sun seeks such an injunction.
11. If any term oft his On-Site Agreement is found to be unenforceable,
then the remainder of this On-Site Agreement shall remain in full force and
effect, unless such a deletion would frustrate the intent of the parties, in
which case this On-Site Agreement shall terminate.
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12. Any action related to this On-Site Agreement will be governed by
California law, excluding the choice of law rules of any jurisdiction.
13. This On-Site Agreement constitutes the entire agreement between the
parties concerning its subject matter, except that (a) confidentiality
agreements executed by Recipient for purposes of obtaining entry to Sun
facilities may supplement but shall not supersede the terms of this On-Site
Agreement, and (b) this On-Site Agreement may supplement but shall not override
the terms of the Agreement. All additions or modifications to this On-Site
Agreement must be made in writing and must be signed by an authorized
representative of each party.
IN WITNESS WHEREOF, the parties have caused this On-Site Employee
Confidentiality Agreement ("On-Site Agreement") to be executed by their duly
authorized representatives.
<TABLE>
<S> <C>
SUN MICROSYSTEMS, INC., by Its division. RECIPIENT (ON-SITE EMPLOYEE)
SUN MICROSYSTEMS COMPUTER COMPANY
-----------------------------------------------------------
By: By:
------------------------------------------------------ ------------------------------------------------------
Name: Name:
---------------------------------------------------- ----------------------------------------------------
Title: Title:
--------------------------------------------------- ---------------------------------------------------
</TABLE>
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<PAGE> 30
EXHIBIT F
SUPPORT
DEFINITIONS
As used herein, the following terms have the following meanings. Capitalized
terms not defined shall have the meaning set forth in the main body of the
Agreement.
"Operating System" means Sun's Solaris 2.4 (or later)
operating system.
"Product" means the Developed Product, including the Library
Monitor Software and its related Add-on Modules and Sun Features, the Sun DLT
Library and Documentation.
"Release" means the addition by Developer of a previously
unincluded function or feature to the Product (designed sequentially by
Developer as "Release 1.0," "Release 2.0," etc.)
"Version" means the addition by Developer of a function or
feature of the Product, or any change made by Developer to the Product which
improves its performance, including all Patches and Bug Fixes made to the
Product since the last previous version (designated sequentially by Developer
as "Version 1.1," "Version 1.2," etc.). Each new Version will operate on the
same Operating System as the immediately preceding Version.
"Minor Version" means any minor change made by Developer to
the Product, including changes made for purposes of maintaining Operating
System and data base system comparability, error correction and work-arounds
(designated sequentially by Developer as "Version 1.1.1," "Version 1.1.2,"
etc.). Minor Versions will operate on the same Operating System as the
immediately preceding Version.
"Patches" means a sparse file patch package, including all bug
fixes required to be released (per Sun quality criteria) since the previous
Release, Version or Minor Version. Patches will operate on the same Operating
System as the Release, Version or Minor Version it modifies.
SUN SUPPORT SERVICES
Sun Support Service. Sun support will consist of technical assistance provided
by Developer support engineers to Sun's designated engineers for Sun's support
of the Product, for the Development Period and the period specified in the
Award Letter. Developer agrees to:
(a) Provide such support to a single Sun site for the
term stated above. Support for additional sites may be subject to an
additional fee. Basic support will be provided in accordance with the
provision entitled Basic Sun Support, below, and based upon the severity
accorded the defects in accordance with the Severity Matrix, Alert Flag, and
Severity Level Designation, as set forth in ESCALATION SEVERITY, below.
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(b) Provide Sun with Releases, Versions, Minor Versions
and Patches for the service term of this Agreement.
ESCALATION SEVERITY
Severity Number
The Severity number is determined through a matrix comprised of both the impact
to the customer's operations, and the importance of the level of the
functionality affected by the problem. The Severity number is used to indicate
the level of the technical problem and is not an indication of the political,
customer sensitivity, or business relationship aspects of the problem. The
Severity number ranges from 1 to 5 and should indicate the technical level of
the problem consistently through the escalation process from the customer to
Product Development.
SMI Severity Matrix
<TABLE>
<CAPTION>
Impact
Functionality Critical Significant Limited
<S> <C> <C>
Primary 1 2 3
Secondary 2 3 4
Non-essential 3 4 4
Severity Matrix - Assessment of Impact
</TABLE>
Critical: If system is down or effectively unusable as a result of the
problems. The bug causes critical impact on the customer's operations with no
workaround.
Examples include:
System hang (unable to save work in progress)
Data loss (e.g. messages dropped or work lost)
Functionality failure renders system ineffective
Vulnerability to a security breach
Significant: System is up and running, but the bug causes significant impact
and has no convenient workaround.
Examples include:
Impaired or broken functionality causing serious inconvenience
Frequent core dumps that do not cause data loss
Serious but predictable and manageable system failures
Significant performance degradation
Limited: System is up and running, and the bug causes only limited or
insignificant impact.
The user generally can still:
avoid using the defective functionality
operate with the functional limitations caused by the bug
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access needed functionality using an alternate interface
use a workaround without significant impact
Severity Matrix - Functionality
Primary
Functionality used to perform tasks considered to be essential to business
operations, project completion, or normal productivity of end-user.
Secondary
Functionality used to perform tasks considered important, but which are not
primary to immediate business operations.
Non-Essential
Functionality that is not important and infrequently
used.
SMI ESCALATION SEVERITY DEFINITION
Alert Flag Definition
For customer situations that require attention, resources, or activity in
addition to the normal technical processes, the Alert Flag is used to activate
increasing levels of visibility and management awareness. The Alert Flag uses
a RED, YELLOW, GREEN model, with the colors indicating increasing levels of
management awareness, monitoring activities, and reporting that should take
place. The Alert Flag is triggered by the responsible local service management
through the Escalation Management functions in each geography for Sun Service
or through the Business Unit Escalation management for other service providers.
The Alert Flag is independent of the Technical Severity Level, and may be
triggered for reasons of business impact to Sun, or customer relations issues,
or the need for application of additional resources.
Red
A Red Flag is set with concurrence of all escalation
levels and would trigger the following activities:
The escalation would appear on the management alert
report at the SMI level. All management
notifications and reporting triggered by a Yellow
Alert Flag would continue. Formal Activity Plans and
Status Reports would be published at the CTE and
Engineering Levels.
Yellow
The escalation would appear on the local and
Geography management alert reports for service and
sales.
Geography level escalation management activities
would be invoked.
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CTE and Engineering Levels would be notified of the
sensitivity level of the escalation.
Regular status monitoring and reporting would be
invoked at the Geography Level.
Green
A Green Flag would be used to indicate that a
previously Yellow or Red alert situation is basically
resolved, but requires some follow up with the
customer to ensure that the issue can be closed.
Severity Level Designation. Problems, defects and malfunctions in a Product
will be categorized as follows:
(a) Severity Level 1. Severity Level 1
represents a critical problem of primary
functionality.
(b) Severity Level 2. Severity Level 2
represents either a significant problem with
primary functionality or a critical problem
with secondary functionality.
(c) Severity Level 3. Severity Level 3
represents a limited problem condition in
which no loss of data occurs and which may be
circumvented or avoided on a temporary basis
by the Sun.
(d) Severity Level 4. Severity Level 4
represents limited problem conditions or
documentation errors or enhancement requests
which cover secondary or non-essential
functionality.
Basic Sun Support Services
For non-escalated bugs, fixes shall be provided as follows:
<TABLE>
<CAPTION>
Priority Fix Due
<S> <C>
1 Required within 90 calendar days, or next Release, Version, minor Version or Patch, whichever
is earlier
2 Required in next external (Beta, Gamma or FCS) Release, Version or Minor Version
3 Required in next FCS Release, Version or Minor Version
4 Desired in next FCS Release, Version or Minor Version
5 At Developer's convenience
</TABLE>
Escalation Sun Support Services. Developer will provide Sun with the following
Sun Support services from a central site selected by Developer:
(a) Telephone, E-Mail and Fax Support. Developer
will maintain and make available Sun telephone, UNIX electronic mail and fax
support. Developer's escalation telephone support service center will be
peopled by properly trained Developer personnel twenty- four (24) hours a day,
seven (7) days a week, and three-hundred-sixty-
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five (365) days per year. Developer will use its reasonable best efforts to
arrange for a qualified Developer support engineer or support manager to return
calls to Sun within two (2) hours of Sun's first call to Developer.
(b) Support Remedies. From receipt of a
documented escalation report from Sun of a Product error, defect or
malfunction, Developer shall respond with the required response (as defined
below) within the following time frames:
<TABLE>
<CAPTION>
Severity Level First Level Second Level Final Level
<S> <C> <C> <C>
1 2 hours ASAP, but in no event later than 90 calendar days
24 hours.
2 24 hours 10 calendar days 100 calendar days
3 2 calendar days 30 calendar days Next Version after the Patch
4 5 calendar days 35 calendar days Next Version after the Patch
Red 1 hour ASAP or less than 24 hours or
defined by daily action plan
Yellow dictated by severity level
Green dictated by severity level
</TABLE>
First level response means that Developer shall begin verifying and replicating
the reported problem within the time frame specified via telephone
communication or as otherwise appropriate under the circumstances.
Second Level response means that Developer shall provide a binary fix or
work-around within the specified time frame, which alleviates the difficulty
but has not yet been fully tested or incorporated in a Version.
Final Level response means that Developer shall incorporate the fix or
work-around into a properly packaged Release, Version, Minor Version or Patch.
(c) On-Site Assistance for Problem Escalation. Developer
will use its best reasonable efforts to make available to Sun on-site
consulting services to assist with problem escalation. Sun will pay
Developer's then current consulting rates for consulting in addition to all
reasonable travel expenses.
(d) Fix Acceptance. Sun shall have ten (10) business
days following receipt of any Second Level or Final Level fix to either notify
Developer of its acceptance of the fix or provide Developer with a written
report (including test results and test data concerning the problem) specifying
in reasonable detail all deficiencies requiring further response from Developer
according to a Sun assigned priority as set forth above. Failure by Sun to
provide such notice within ten (10) days shall be deemed to constitute
acceptance of the fix by Sun. Upon completion of the second fix, Developer
shall resubmit the fix to Sun to acceptance in accordance with this Section.
In the event that a
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resubmitted fix is still unacceptable to Sun, the parties shall meet in good
faith to establish a mutually acceptable action plan to address any remaining
deficiencies.
(e) Problem Reports. Developer shall provide a defined
method for reporting problems to Sun to minimize any delay in the transfer of
suspected defects for resolution.
(f) Problem Information. Developer will provide Sun with
problem notes and answers to commonly asked questions on an as available basis.
Sun will be responsible for disseminating this information to Sun's personnel.
(g) Support Documentation. Developer will provide, free
of charge, an electronic version of all commercially available support
documentation (including, but not limited to, installation,
programmer/developer, training materials and support manuals) that is readable
on Sun workstations, which Sun may copy and distribute to Sun's service
providers. This material will not, however, include training manuals and
documentation. In the event that Sun makes any modifications to, or derivative
works of, documentation provided by Developer hereunder, Sun shall remove all
Developer trademarks and/or copyright legends from such
modifications/derivative works unless such modifications/derivative works have
been approved in writing by Developer prior to distribution by Sun.
(h) Debugging Assistance. Low level debugging assistance
using Developer serial port interface. This assistance will be limited to
SMCC's Customer Technical Engineering (CTE) group.
ON-SITE SUPPORT SERVICES
Subject to payment of Developer's then current standard consulting rates and
the availability of Developer's support personnel, Developer will make on-site
service calls to Sun's facility. Sun will pay Developer's standard consulting
rates plus, reasonable travel and out-of-pocket expenses.
OTHER TERMS OF SERVICE SUPPORT
Sun Obligations. Sun will designate a team of three (3) support personnel, for
each site supported, as the principal point of contact for support. Sun may
change the identity of such personnel from time to time upon notice to
Developer. Sun will also use reasonable efforts to document and isolate
reported problems in the Product.
Final Level Fixes. Upon correcting an error, Developer will internally conduct
tests and performance measurements on the corrected Product. The final fix for
the reported error, including all relevant documentation, will be delivered by
Developer to Sun when complete. For purposes of this Section, a "Final Level
Fix" will consist of the final form of the fix for a reported error in a new
update or Version of the Product, including Documentation.
New Versions. Developer will promptly deliver new Versions to Sun as soon as
commercially available.
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<PAGE> 36
Reports. Developer will provide Sun with a report of the status of all
outstanding Severity Level 1 and Severity Level 2 errors reported by any of
Developer's customers for the Product.
Loaner Equipment. Sun may provide Developer with one (1) complete set of the
computer hardware on which Sun and its customers will operate the Product
("Designated Hardware") reasonably necessary for Developer to replicate and fix
reported errors. Sun may provide such Designated Hardware to Developer under
Sun's standard equipment loan agreement. Sun understands and agrees that
Developer will provide support services hereunder only to the extent that a
reported error can be replicated on the Designated Hardware, or if Sun does not
provide Developer with such hardware, to the extent that a reported error can
be replicated on Developer hardware (and related software). If Sun provides
Developer with Designated Hardware, Sun will provide regular system updates and
maintenance on Designated Hardware to keep equipment up to current technology
levels.
Prior Release Support. Developer will provide hotline phone support and
Patches and Bug Fixes for the prior Version of the Product for twelve (1 2)
months after a new Version of the Product becomes available on the Designated
Platform.
END-OF-LIFE (EOL) SUPPORT
Developer will provide Sun with product support including
responding to all escalated calls from Sun and providing fixes and error
corrections for the duration of the service life of the Products. The service
life is defined as product support provided by Developer to Sun from
commencement of the Products' out-of-warranty period through a period of not
less than five (5) years after the last delivery date of Products to Sun.
During the first two years of service life, Developer will provide full product
support. During the third year of service life, Developer will provide
escalation support only. During the fourth and fifth year of service life,
Developer will provide product support on a time and materials basis only.
Developer shall notify Sun of a planned EOL announcement of its Products at
least three (3) months prior to such announcement. If Developer desires to
assign or delegate its obligations for EOL product support of Products to a
third party company, Sun must qualify the product support capability of a third
party company and give its written approval of the assignment to said third
party before Developer may transition the support, which approval shall not be
unreasonably withheld.
TRAINING
Developer shall make available to Sun written training
materials including instructor guide, lab setup instructions for "hands on"
laboratory work, student guide and presentation materials.
At Sun's request, Developer shall provide training on-site at
selected Sun facilities at a fee of $1,000 per day. Such training shall
include "hands on" laboratory work. Sun shall (i) reimburse Developer for
travel and living expenses incurred by Developer's personnel to the extent that
such expenses are reasonable and arise solely and directly from the training
being performed at other than a Developer facility, and (ii) make available
adequate facilities and equipment reasonably required for such training.
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<PAGE> 37
EXHIBIT G
AWARD LETTER
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<PAGE> 38
AWARD LETTER
December 16, 1996
Mark Spowart
ATL Products, Inc.,
an Odetics company
1515 South Manchester Avenue
Anaheim, CA 92802-2907
Dear Mark.
Sun is pleased to notify you that ATL Products, Inc. ("Supplier") has been
selected as a supplier of certain DLT tape library products ("Product") subject
to your agreement to the following terms ("Agreement"):
1. PRICING: Product description and pricing is set forth in Exhibit A.
Prices are exclusive of freight and taxes. Currency: U.S. dollars.
2. FORECAST: Sun shall use its reasonable efforts to provide Supplier
with a six (6) month rolling forecast of its intended purchases
updated monthly. Such forecast is for Supplier's convenience only and
shall in no way create an obligation on Sun's part to meet such
forecast.
3. LEADTIME: Initial order: thirty (30) calendar days. Subsequent
orders: twenty-one (21) calendar days. The parties agree to
negotiate in good faith a leadtime reduction plan to reduce the
leadtime to ten (10) calendar days to support Sun's configure-to-order
program.
4. PAYMENT TERMS: net thirty (30) days after receipt of product by Sun.
5. SHIPPING POINT: F.O.B. Supplier's U.S. facility in Anaheim, CA.
6. RESCHEDULING: Sun may, from time to time, reschedule delivery of all
or part of any purchase order at no charge, up to ninety (90) days
after the agreed delivery date.
7. CANCELLATION:
Sun may, from time to time, cancel all or any part of a purchase order
prior to shipment of the Product which is subject of the purchase
order. Upon receipt of a notice of the cancellation, Supplier shall
use its best efforts promptly to locate customers or alternate uses
for the canceled Products. With respect to any remaining Product, Sun
and Supplier shall negotiate reasonable cancellation charges based on
Supplier's actual costs (as supported by adequate documentation
provided by Supplier). Supplier shall itemize its unrecovered costs
and expenses and deliver to Sun a statement thereof within thirty (30)
days after the effective date of cancellation. For the purposes of
this Agreement, actual costs are defined as the costs of unique
materials which: (i) have been procured specifically for Product
built for Sun based on Sun's purchase orders accepted by Supplier, and
(ii) cannot be used by Supplier. Sun shall not be responsible for any
cancellation costs or expenses not included in the statement of costs
and expenses as provided herein. Sun may take the Product under the
terms of this Agreement in lieu of paying cancellation charges.
Confidential ATL Dev & Lic Agreement
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<PAGE> 39
Payment by Sun of the cancellation charges agreed to by Sun and
Supplier shall constitute a full compromise and settlement of all
claims of Supplier for loss, expense or damages arising out of Sun's
cancellation of the purchase order.
8. UPSIDE SUPPORT: "Upside" is defined as a maximum of twenty-five
percent (25%) beyond Sun's forecast for the current month which
Supplier commits to manufacture and deliver to Sun, upon Sun's written
request, at no additional cost to Sun, within twenty-one (21) calendar
days after such request. The parties agree that the turnaround time
for Upside will be reduced to ten (10) calendar days at such time that
the parties commence the configure-to-order program referred to in
Section 3 above.
9. EXTRAORDINARY TRANSPORTATION FOR LATE DELIVERIES: If it should be
reasonably expected that a shipment of Product will not be delivered
on the agreed delivery date, upon Sun's request Supplier shall, at its
expense, use any extraordinary transportation to deliver Product at
the earliest possible date.
10. QUALITY: Supplier shall deliver Product(s) which conforms to
(Sun/Supplier)'s specifications ("Product Specification(s)") attached
as Exhibit D and shall comply with Supplier's Quality Program attached
hereto as Exhibit C. The quantity of Product(s) which falls to
conform to the Product Specification at the time of delivery to Sun or
during the term of the warranty shall not exceed the Defects Per
Million ("DPNF") levels in Exhibit C.
Sun shall not be required to accept any Product which is not qualified
by Sun for use in Sun's products.
11. WARRANTY: The warranty period is five (5) years for the base Product
and two (2) years for tape drives from the date of Sun's acceptance of
Product. Sun's acceptance period is approximately thirty (30) days
from receipt of Product.
12. UNEXPECTED FAILURES: The terms and conditions which are applicable in
the event an unexpected failure of Product occurs are set forth in
Exhibit E attached hereto.
13. SUN-UNIQUE COMPONENTS: Sun-unique Components include, but are not
limited to, Sun specific Product color, Sun logo, the look of the
graphic user interface (GUI) displayed on the control panel (refer to
the Product Specification), DLTprops software, Sun labels and
packaging.
14. CUSTOMER SUPPORT: During the term of this Agreement, and thereafter
for the period of time set out in Exhibit B, Supplier will provide
warranty and non-warranty customer service and support for Product as
set forth in Exhibit B, attached hereto.
15. LOCAL TECHNICAL SUPPORT: Supplier shall provide local technical
support to Sun's worldwide factory locations and product distribution
centers.
16. ENGINEERING SUPPORT: Supplier shall provide the level of local
engineering support to Sun's qualification engineering team, currently
located in Menlo Park, CA, which Sun deems necessary to support the
program.
17. EARLY ACCESS UNITS
To support the quantity of units that Sun will be shipping to
customers in the U.S., Supplier will provide onsite installation,
maintenance and repair service, including all parts and labor for such
units. All repair calls for such units will be made through Sun and
then forwarded to Supplier for action as needed.
Service fees, including all costs of parts, labor and travel to the
end user site, are as set forth below:
Next day service: $250 per unit per month (prorated, depending upon
when in the month the unit is installed and service is subsequently
required).
2
<PAGE> 40
Supplier will perform installation services, if requested, at $500 per
unit installed.
18. NOTICES: Sun and Supplier shall each assign an individual to
administer this Agreement throughout its term.
<TABLE>
<S> <C>
Sun's Administrator shall be: Supplier's Administrator shall be:
Bob Simonelli Richard Speyer
Sun Microsystems, Inc., ATL Products, Inc.
2550 Garcia Avenue (mailing address), an Odetics company
NVS UCHL04-108 1515 South Manchester Avenue
Mountain View, CA 94043 Anaheim, CA, 92802-2907
Ph: (508) 442-2569 Ph: (714) 780-7707
Fax: (508) 250-5572 Fax: (714) 780-7799
</TABLE>
Each party shall inform the Administrator of the other in writing of a
change of administrator or such Administrator's address or telephone
number.
19. SURVIVAL OF TERMS: The parties further agree that the rights and
obligations set forth in Sections 11 and 12 and Exhibits B and C shall
survive the termination of this Agreement for any reason and
enforcement thereof pursuant to this Section shall not be subject to
any conditions precedent.
20. EXHIBITS: The following is the list of exhibits and Attachments which
are attached hereto and incorporated herein by this reference as if
set forth in full:
<TABLE>
<S> <C>
Exhibit A - Product Description and Pricing Exhibit C - Supplier's Quality Program
Exhibit B - Customer Support Provisions Exhibit D - Product Specification
Exhibit E - Unexpected Failures
</TABLE>
Please indicate your agreement to these terms by signing both copies in the
space provided below and returning to my attention. Upon execution of this
Agreement by Sun I will return an original to you. Thank you.
Sincerely,
<TABLE>
<S> <C>
Bob Simonelli
Commodity Manager
Sun Microsystems, Inc. ATL Products, Inc., an Odetics company
- ------------------------------------------- -----------------------------------------------------------
By By
- ------------------------------------------- -----------------------------------------------------------
Name Name
- ------------------------------------------- -----------------------------------------------------------
Title Title
- ------------------------------------------- -----------------------------------------------------------
Date Date
</TABLE>
3
