EXHIBIT 10.17
CONFIDENTIAL TREATMENT DELETED (DENOTED BY "[CMD]") AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION TOGETHER
WITH CONFIDENTIAL TREATMENT REQUEST REGARDING DELETIONS.
DEVELOPMENT AGREEMENT
BETWEEN NEXAR TECHNOLOGIES, INC.
AND GDA TECHNOLOGIES, INC.
1. INTRODUCTION
1.1 This is an agreement for GDA Technologies, Inc. ("GDA"), a
California corporation, to perform engineering services in
connection with the development of certain computer
circuit boards and related technology for Nexar
Technologies, Inc. ("Nexar"), a Delaware corporation, in
accordance with an agreed-upon set of Specifications and a
Milestone and Payment Schedule. To the extent that GDA has
performed portions of the services described herein prior
to the date hereof, all such services shall be considered
for all purposes as performed under and pursuant to the
terms hereof.
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
2.1 "Agreement" shall mean this Agreement between Nexar and
GDA, including the Schedules and Exhibits hereto.
2.2 "Boards" shall mean the integrated circuit boards to be
engineered by GDA hereunder based on the [CMD] described
in this Agreement, which shall consist of all Deliverables
as stated in the Specifications (Schedule A), and the
Milestone and Payment Schedule (Schedule B).
2.3 "Confidential Information" shall mean any information
relating to or disclosed in the course of this Agreement,
which is or should be reasonably understood to be
confidential or proprietary to the disclosing party.
"Confidential Information" shall not include information
(a) already lawfully known to the receiving party, (b)
disclosed in published materials, (c) generally known to
the public, or (d) lawfully obtained from any third party.
2.4 "Deliverables" are the items that are specified in the
Specifications and the Milestone and Payment Schedule as
items to be delivered to Nexar.
2.5 "Final Deliverables" are the items that are specified in
the Milestone and Payment Schedule as the last and final
delivery to Nexar.
2.6 "Milestone and Payment Schedule" shall mean the schedule
of time for delivery of and payment for the Deliverables,
as set forth in Schedule B.
2.7 "Specifications" shall mean requirements for the Boards'
required operation, functions, capabilities and
performance and the documentation to be delivered
therewith, as described in Schedule A attached hereto, or
as revised by the parties under procedures set forth in
this Agreement.
2.8 "Technical Manuals" shall mean a complete description of
the Boards, written in accordance with the requirements of
the Specifications.
2.9 "Technology" shall mean all of the technology, proprietary
information and/or intellectual property which has been or
is developed by GDA under this Agreement, as well as
apparatus, articles of manufacture, prototypes, and
documentation or other tangible media embodying such
technology, proprietary information and/or intellectual
property or in which they are expressed.
3. REPRESENTATIONS AND WARRANTIES
3.1 Nexar represents and warrants that it has the corporate
authority to enter into this Agreement and to perform its
obligations under this Agreement.
3.2 GDA represents and warrants that it has the corporate
authority to enter into this Agreement and to perform its
obligations under this Agreement.
4. DEVELOPMENT OF BOARDS
4.1 GDA shall complete the development of the Boards and other
Deliverables by the respective dates set forth in the
Milestone and Payment Schedule and shall apply such
resources and efforts as shall be reasonably necessary to
accomplish this task.
5. CHANGES IN SPECIFICATIONS AND MILESTONE AND PAYMENT SCHEDULE
5.1 Either Nexar or GDA may propose changes in the
Specifications or to the Milestone and Payment Schedule.
Nexar and GDA must agree, in writing, to the changes prior
to any such modifications, and to the effect, if any, on
payments due under this Agreement.
5.2 Nexar may not require work or features not set forth in
the Specifications unless agreed to in writing. GDA will
not be compensated, other than as stated in this
Agreement, unless such additional payments are agreed to
in advance in writing.
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6. RESOURCES TO BE PROVIDED TO GDA BY NEXAR
6.1 Nexar shall supply to GDA all information and resources
that GDA shall reasonably require to carry out the work
required by this Agreement, including:
(a) [CMD]
(b) [CMD]
(c) [CMD]
(d) [CMD]
(e) [CMD]
(f) [CMD]
(g) [CMD]
(h) [CMD]
(i) [CMD]
(j) [CMD]
(k) [CMD]
7. CONFIDENTIALITY
7.1 Each party acknowledges that it will receive Confidential
Information of the other party relating to technical,
marketing, product, and/or business affairs. Each party
agrees that all Confidential Information of the other
party shall be held in strict confidence and shall not be
disclosed or used without express written consent of the
other party, except as may be required by law.
7.2 Upon or prior to its execution of this Agreement GDA shall
have each of its employees, independent contractors and
any other individual or entity engaged by GDA who have
worked on and/or are working on the Technology sign a
confidentiality and assignment of technology agreement, in
the form of Exhibit A hereto, which includes a covenant to
maintain confidentiality as required by this Agreement and
which assigns to GDA any and all right, title and interest
of all such individuals and entities to any and all of the
Technology (which right, title and interest GDA, in turn,
assigns to Nexar under Section 11 hereof). GDA shall
deliver all such agreements to Nexar together with this
Agreement at the time of its execution hereof and GDA
hereby represents and warrants to Nexar that the
representations and warranties of each such individual or
entity set forth in such agreements are true and accurate.
Attached hereto as Exhibit B is a list of all GDA
employees, directors, independent contractors, and any
other individual or entity engaged by GDA who have worked
on and/or are working on the
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Technology and a copy of any other confidentiality and
assignment of technology agreements between all such
individuals or entities and GDA, all of which (including
Exhibit B) GDA represents and warrants is accurate and
complete as of the date hereof. GDA shall update Exhibit B
from time to time upon ▇▇▇▇▇'s request and shall have all
future employees, independent contractors and any other
individual or entity engaged by GDA who work on the
Technology sign confidentiality and assignment of
technology agreements, in substantially the form of
Exhibit A, prior to any such individuals or entities
receiving any Confidential Information relating to or
working on the Technology.
7.3 In addition to the foregoing provisions of this Section 7,
GDA agrees that from the date hereof none of the terms of
this Agreement shall be disclosed by GDA or any of its
officers, directors, independent contractors or employees,
to any other party, including any employee of Nexar unless
expressly authorized in writing by the Chief Executive
Officer of Nexar. A list of the only Nexar employees whom
the Chief Executive Officer of ▇▇▇▇▇ has authorized from
the date hereof to receive information with respect to
this Agreement is attached hereto as Exhibit C.
8. NON-COMPETITION
8.1 From the date hereof until the acceptance of the Final
Deliverables, and for a period of ten years thereafter,
GDA shall not supply or agree to supply to any party other
than Nexar technology with a form factor substantially
similar to the Boards or technology that will or is likely
to be directly competitive with the [CMD]. The provisions
of this paragraph shall survive termination of this
Agreement.
9. DELIVERY AND ACCEPTANCE OF DELIVERABLES
9.1 GDA shall deliver various Deliverables at the times and in
the manner specified in the Milestone and Payment
Schedule.
9.2 If GDA fails to make timely delivery of any Deliverable as
specified in the Milestone and Payment Schedule, Nexar may
give GDA notice of the failure. After such notice, GDA
shall have thirty (30) days to make the specified
delivery. Failure to submit the Deliverables within such
period shall be a material breach that shall entitle Nexar
to terminate this Agreement in accordance with the
provisions on Termination.
9.3 Nexar may inspect and test each of the Deliverables when
received to determine if it conforms to the requirements
of the Specifications. Any
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Deliverable not rejected by Nexar within thirty (30) days
shall be deemed accepted.
9.4 If any Deliverable is rejected, Nexar shall give GDA
notice of the rejection and the reasons for rejection. GDA
shall then have thirty (30) days to cure deficiencies.
After resubmission within such thirty (30) day period,
Nexar may again inspect the Deliverable to confirm that it
conforms to requirements of the Specifications. If the
resubmitted Deliverable does not conform to the
requirements of this Agreement, the failure will be a
material breach that shall entitle Nexar to terminate this
Agreement in accordance with the provisions on
Termination. If the resubmitted Deliverable is rejected,
Nexar shall give notice to GDA stating the reasons for
rejection.
9.5 Notice of failure to make timely delivery, rejection, or
subsequent resubmission shall not affect the due date for
subsequent Deliverables as required by this Agreement
unless otherwise agreed in writing.
9.6 If the Final Deliverables in any material respect do not
conform to the Specifications, and such non-conformity is
not cured as provided in this Agreement, the failure will
be a material breach that shall entitle Nexar to terminate
this Agreement in accordance with the provisions on
Termination. Alternatively, Nexar, at its option, may
accept the Final Deliverables as non- conforming. If it
does so, it shall give prompt notice to GDA stating the
known defects, and may withhold and deduct, from amounts
otherwise due and payable to GDA upon acceptance of the
Final Deliverables, the amount of reasonable out-of-pocket
costs to correct, modify, and/or complete the Boards in
accordance with the Specifications. From time to time, and
as soon as is practicable, Nexar shall provide GDA with
notice of all sums withheld and expended and shall turn
over to GDA all funds withheld that are not so applied
when such remedial work is completed.
9.7 GDA shall provide to Nexar or to such other person as
Nexar shall designate, from time to time, as reasonably
required before production of the Boards, all assistance
and information reasonably necessary to ensure that a
Technical Manual for each of the Boards is complete and
accurate. GDA shall review a draft of each such Technical
Manual upon ▇▇▇▇▇'s request and promptly provide all
corrections required to Nexar, for which review and
correction Nexar shall pay GDA at the rate of [CMD] per
hour.
10. PAYMENT
10.1 Nexar shall pay GDA the amounts due upon the execution of
this Agreement as specified in the Milestone and Payment
Schedule. Upon acceptance of each Deliverable, Nexar shall
pay GDA the amounts as specified in the
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Milestone and Payment Schedule. Payment shall be due
within twenty (20) days of acceptance of each Deliverable,
other than the deferred consideration component which
shall be paid as specified in the Milestone and Payment
Schedule. Payment by mail shall be deemed made when
mailed.
10.2 If any payment is not made as required, GDA may give
notice of the failure to pay. The failure to pay, if not
cured within thirty (30) days after notice, shall entitle
GDA to terminate this Agreement in accordance with the
provisions on Termination.
11. INTELLECTUAL PROPERTY RIGHTS IN THE TECHNOLOGY
11.1 GDA hereby irrevocably assigns and shall assign worldwide
the entirety of its right, title and interest in the
Technology to Nexar, its successors and assigns, such
assignment including by way of non-limiting example:
(a) all right, title and interest in any
invention, modification, or advance, whether or not
patentable, included in the Technology;
(b) all right, title and interest in any
invention, modification, or advance, whether or not
patentable, pertaining to the technology known as the
[CMD] and domestic or foreign patent applications
disclosing or claiming such invention, modification or
advance, any continuation, continuation-in- part or
division of such patent application and any patent issuing
thereon, and any reissue, re-examination or extension of
such patent;
(c) all right, title and interest in any
domestic or foreign patent application disclosing and/or
claiming the Technology, any continuation,
continuation-in-part, or divisional of such application,
and any patent issuing on any such application, and any
reissue, reexamination or extension of any such patent;
(d) all right, title and interest in any
invention based on the Technology and/or on any other
technology, proprietary information and/or intellectual
property of Nexar to which GDA had access in the course of
engagement by ▇▇▇▇▇, which invention is conceived or
reduced to practice within two years after termination of
such engagement, any patent domestic or foreign patent
application disclosing or claiming any such invention, any
continuation, continuation-in-part, or divisional of such
application, and any patent issuing on any such
application, and any reissue, reexamination or extension
of any such patent;
(e) all right, title and interest in any
works created or authored by the GDA in the course of such
engagement or within one year after the
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termination thereof pertaining to the Technology, and all
copyright, worldwide, in such works (as used in this
agreement, "copyright" refers to copyright, moral rights
and semiconductor mask work rights); and
(f) all right, title and interest to any
apparatus, articles of manufacture, prototypes, and
documentation or other tangible media included in or
embodying the Technology, including, without limitation,
all apparatus, articles of manufacture, prototypes, design
and engineering drawings and specifications, created,
authored, developed or otherwise acquired by GDA in the
course of such engagement or within one year after the
termination thereof.
11.2 GDA hereby covenants that it will promptly disclose to
Nexar, all inventions, modifications, or advances, whether
or not patentable, pertaining to the Technology made by
GDA (or those employees, independent contractors and any
other individual or entity engaged thereby GDA who have
worked on and/or are working on the Technology) during the
course of such engagement or within one year after
termination thereof.
11.3 GDA hereby covenants that no assignment, license, or other
transfer or encumbrance has, been, or will be made by them
that would conflict with this assignment of all entire
right, title and interest in the Technology and in the
intellectual property rights therein to Nexar.
11.4 GDA hereby covenants that all services performed by it
during the course of its engagement with Nexar have been
and shall be on a work-for-hire basis in favor of Nexar
and that any works resulting therefrom are "works made for
hire" (as that term is defined in Section 101 of the
United States Copyright Act) on behalf of Nexar.
11.5 GDA shall execute such documents as Nexar shall reasonably
require to evidence and confirm the transfer of rights
made under this Agreement.
11.6 Nexar may patent, register copyrights, retain in secrecy,
and/or otherwise take actions to protect, any of the
Technology and any improvements, modifications, advances
and derivatives thereof in any and all countries and
jurisdictions as Nexar sees fit. GDA agrees to cooperate
with ▇▇▇▇▇ and perform all acts that are necessary and
proper, or that Nexar otherwise deems desirable, in order
to secure, maintain or enforce protection of the
Technology. By way of non-limiting example, GDA shall
provide timely cooperation to Nexar and its
representatives to facilitate preparation of patent
applications on the Technology, and GDA shall have a right
to review (but not approve) any such patent application
prior to the filing thereof. ▇▇▇▇▇ agrees to compensate
[CMD], at the rate of [CMD] per hour, for his time
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spent on assisting ▇▇▇▇▇ in preparing, prosecuting,
maintaining or continuing any such patent applications.
11.6 No license, assignment, or other transfer of (or release
of obligations with respect to) intellectual property
rights by ▇▇▇▇▇ is intended or implied by the provisions
of this Section 11.
12. WARRANTY
12.1 GDA warrants, for a period of five years after acceptance
of the Final Deliverables (the "Warranty Period"), that
the Boards will perform in substantial conformity with the
Specifications. However, GDA and ▇▇▇▇▇ agree that due to
the nature of complex integrated circuit boards such as
the Boards, GDA may not be able to find and remove all
defects and errors. ACCORDINGLY, ▇▇▇▇▇'S SOLE AND
EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE
TO AVAIL ITSELF OF THE PROCEDURES SET FORTH IN THE SECTION
OF THIS AGREEMENT ENTITLED "MAINTENANCE." EXCEPT AS
EXPRESSLY STATED HEREIN, ALL WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE DISCLAIMED.
12.2 GDA WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
13. MAINTENANCE
13.1 During the Warranty Period GDA shall use reasonable
efforts to provide to Nexar all corrections and/or
modifications necessary to correct problems, logical
errors, and bugs in the Boards reported to GDA in writing.
The first [CMD] hours of the efforts of GDA's employees on
such tasks shall be without charge. Thereafter GDA may
bill for the time of its employees at [CMD] per hour. Such
bills may be rendered to Nexar at month end and are
payable thirty (30) days after receipt. GDA shall have no
obligation to fix problems or errors resulting from
▇▇▇▇▇'s modification of the Boards.
13.2 If GDA fails to correct any problem, logical error, or bug
reported during the Warranty Period within thirty (30)
days of notice, Nexar may contract for such work to be
done by any third party that agrees in writing to hold in
confidence the Confidential Information of GDA.
14. TECHNOLOGY WARRANTY
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14.1 GDA represents and warrants to the best of its knowledge
it is the owner of all right, title and interest in the
Technology, that no other person or entity (other than
Nexar) has any license or ownership interest therein, that
the Technology and all aspects of it are original, and
that GDA has full and absolute right to transfer the
Technology. GDA will indemnify each of Nexar and its
officers, directors and employees from any and all
actions, suits, complaints, claims, judgments, orders,
costs, amounts paid in settlement, liabilities, losses,
and fees, including court costs and reasonable attorneys'
fees and expenses, or similar adverse consequences,
arising out of any failure of the foregoing
representations set forth in this Section 14 to be true.
Without derogation of the foregoing, Nexar acknowledges
that it has agreed to indemnify GDA and its officers,
directors and employees with respect to certain adverse
consequences GDA may suffer to Technovation Computer Labs,
Inc., a Nevada corporation ("TCL"), to the extent set
forth in an Indemnification Agreement between Nexar and
GDA dated November 7, 1996, which Agreement remains in
full force and effect as of the date hereof.
15. FUTURE PROJECTS; RIGHT OF FIRST REFUSAL
15.1 Nexar and GDA agree to work together in good faith to
reach agreement for development of the following [CMD] on
specification and milestone and payment terms mutually
acceptable to each:
(a) [CMD]
(b) [CMD]
(c) [CMD]
(d) [CMD]
15.2 For a period of five years from the date hereof, GDA
agrees to provide Nexar with a right of first refusal, and
to work with Nexar in good faith to reach agreement on
mutually acceptable terms, with respect to any future GDA
development proposal (other than one generated by a
customer, or prospective customer, of GDA other than
Nexar) which relates to Nexar's current or demonstrably
anticipated products or research and development, prior to
proposing to do any such development work for any other
party. ▇▇▇▇▇ agrees to notify GDA whether it will exercise
its right of first refusal within seven (7) days after
receiving notice from GDA of the bona fide terms of any
such GDA proposal. If Nexar declines to commit to such
development project on such terms (or on other terms
mutually satisfactory to GDA and Nexar), GDA shall be free
to offer such proposal to third parties on terms no less
favorable to GDA than those first offered to Nexar.
16. TERM AND TERMINATION
16.1 The term of this Agreement shall commence on the date
hereof, and shall continue until all requirements of this
Agreement are met, unless sooner terminated in accordance
with the provisions set forth in this Agreement.
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16.2 Either party may terminate this Agreement:
16.2.1 In accordance with provisions
stated in this Agreement that
provide for termination,
16.2.2 In the event that the other
party ceases business operations
or is in any bankruptcy or state
insolvency or receivership
proceeding not dismissed in
thirty (30) days or assigns its
assets for the benefit of
creditors, or
16.2.3 In the event of any material
breach by the other party which
is not cured within thirty (30)
days after notice thereof from
the non-breaching party.
16.2.4 Upon any termination of this
Agreement by any party all
provisions of the Sections 3, 7,
8, 10, 11, 12, and 14 shall
remain in effect.
17. REMEDIES
17.1 Except as is otherwise provided in this Agreement, the
parties shall have such remedies for breach or termination
as are provided by applicable law.
17.2 The parties agree that in the case of the breach of any
provision of the section of this Agreement entitled
Confidentiality or Competition, the aggrieved party will
suffer immediate and irreparable harm, and that a petition
for immediate injunctive relief will therefore be
appropriate.
18. GENERAL PROVISIONS
18.1 RELATIONSHIP OF PARTIES. GDA shall be deemed to have the
status of an independent contractor, and nothing in this
Agreement shall be deemed to place the parties in the
relationship of employer-employee, principal-agent,
partners or joint venturers. [CMD].
18.2 PAYMENT OF TAXES. GDA shall be responsible for any
withholding taxes, payroll taxes, disability insurance
payments, unemployment taxes, and other taxes or charges
incurred in the performance of this Agreement.
18.3 FORCE MAJEURE. Neither party shall be deemed in default of
this Agreement to the extent that performance of their
obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, nature
disaster, accident, act of government, shortages of
materials or supplies, or
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any other cause beyond the control of such party ("Force
Majeure") provided that such party gives the other party
written notice thereof promptly and, in any event, within
fifteen (15) days of discovery thereof and uses its best
efforts to cure the delay. In the event of such a Force
Majeure, the time for performance or cure shall be
extended for a period equal to the duration of the Force
Majeure but not in excess of thirty days.
18.4 ASSIGNMENTS. Nexar may assign this Agreement, without
GDA's consent, to any third party which succeeds by
operation of law to, purchases, or otherwise acquires
substantially all of the assets of Nexar and assumes
Nexar's obligations hereunder. Notwithstanding the above,
Nexar shall retain the obligation to pay if the assignee
fails to pay as required by the payment obligations of
this Agreement. GDA may not assign its obligations under
this agreement without Nexar's written consent, which
Nexar may withhold in its complete discretion.
18.5 PARTIAL INVALIDITY. Should any provision of this Agreement
be held to be void, invalid, or inoperative, the remaining
provisions of this Agreement shall not be affected and
shall continue in effect as though such provisions were
deleted.
18.6 NO WAIVER. The failure of either party to exercise any
right or the waiver by either party of any breach, shall
not prevent a subsequent exercise of such right or be
deemed a waiver of any subsequent breach of the same or
any other term of this Agreement.
18.7 NOTICE. Any notice required or permitted to be sent
hereunder shall be in writing and shall be sent in a
manner requiring a signed receipt, such as Federal
Express, courier delivery, or if mailed, registered or
certified mail, return receipt requested. Notice is
effective upon receipt. Notice to Nexar shall be addressed
to the Chief Executive Officer or such other person or
address as Nexar may designate. Notice to GDA shall be
addressed to the President or such other person or address
as GDA may designate.
18.8 ENTIRE AGREEMENT. This Agreement, including the Schedules
and Exhibits thereto, states the entire agreement between
the parties on this subject and supersedes all prior
negotiations, understandings, and agreements between the
parties concerning the subject matter. No amendment or
modification of this Agreement shall be made except by a
writing signed by both parties.
18.9 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the substantive law of The
Commonwealth of Massachusetts without regard to choice of
law principles.
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18.10 VENUE AND JURISDICTION OF LEGAL ACTIONS. Any legal action
brought concerning this Agreement or any dispute hereunder
shall be brought only in the courts of The Commonwealth of
Massachusetts or in the federal courts located in such
state, and both parties agree to submit to the
jurisdiction of these courts.
Executed under seal as a Massachusetts instrument as of November 12, 1996.
Nexar Technologies, Inc.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
GDA Technologies, Inc.
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President
ds1/319199
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SCHEDULE A
SPECIFICATIONS
--------------
[CMD]
-----
The [CMD] to be engineered by GDA will have the following features:
- [CMD]
- [CMD]
[CMD]
STATEMENT OF WORK
-----------------
Development of the following [CMD]:
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
GDA technologies is responsible for the following development
activities:
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
DELIVERABLES
------------
GDA will deliver the following at the completion of the project:
- Specifications
- Schematics, both hard and soft copies
- [CMD]
- [CMD]
- [CMD]
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SCHEDULE B
MILESTONE AND PAYMENT SCHEDULE
------------------------------
The following Schedule shall govern milestones and payments for the
development of the Boards.
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
Development costs are split into [CMD] components. [CMD]. The cost per
hour is based on the complexity of the design. The following gives the NRE cost
outline for this project.
===========================================================================================================================
No. Item Description Number $/Hr. Total
of Hrs.
---------------------------------------------------------------------------------------------------------------------------
1 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
2 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
3 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
4 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
5 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
6 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
7 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
8 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
9 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
10 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
11 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------------
[CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
12 [CMD] [CMD] [CMD] [CMD]
---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
The deferred consideration [CMD] shall be paid to GDA on a [CMD] basis
at the rates described below:
1. [CMD] [CMD]
2. [CMD] [CMD]
3. [CMD] [CMD]
4. [CMD] [CMD]
5. [CMD] [CMD]
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EXHIBIT A
CONFIDENTIALITY AND ASSIGNMENT AGREEMENT
This Confidentiality and Assignment Agreement is effective this ___ day
of _____________, 1996.
WHEREAS, the individual whose name appears below (the "Assignor") has
been and/or may be engaged by GDA Technologies, Inc., a California corporation
("GDA") on behalf of Nexar Technologies, Inc., a Delaware corporation (the
"Assignee"), for purposes relating to the research, development, design,
development, fabrication and/or manufacture of technology pertaining to
computers, including, without limitation, [CMD];
WHEREAS, in the course of such engagement, the Assignor may have, or
may have had, access to technology, proprietary information and/or intellectual
property of Assignee;
WHEREAS, in the course of such engagement, the Assignor may conceive,
develop, author, or otherwise make, and/or may have conceived, developed,
authored or otherwise made, technology, proprietary information and/or
intellectual property (including but not limited to [CMD], as well as apparatus,
articles of manufacture, prototypes, and documentation or other tangible media
embodying such technology, proprietary information and/or intellectual property
or in which they are expressed (collectively, the "Technology");
WHEREAS, the Assignor is desirous of assigning all right, title and
interest in the Technology to GDA, and whereas GDA is, in turn, desirous of
assigning all right, title and interest in the Technology to Assignee;
WHEREAS, listed in Exhibit I hereto, by country, application serial
number, filing date, inventor(s), and patent number, if any, are all domestic
and foreign patents and patent applications, filed in the name of Assignor,
disclosing and/or claiming the Technology;
WHEREAS, listed in Exhibit II hereto, by title, author(s), publication
date, country, application serial number, filing date, and registration number,
if any, are all domestic and foreign copyright registrations and applications,
filed on works authored by the Assignor pertaining to the Technology;
NOW THEREFORE, in consideration of one dollar ($1.00) and other good
and valuable consideration the receipt of which is hereby acknowledged by
Assignor, Assignor hereby assigns and shall assign worldwide the entirety of his
or her right, title and interest in the Technology to GDA, and THEREFORE in
consideration for one dollar ($1.00) and other good and valuable consideration
the receipt of which is hereby acknowledged by GDA, GDA hereby assigns and shall
assign worldwide the entirety of its right, title and interest in the Technology
to Assignee, its successors and assigns, such assignment including by way of
non-limiting example:
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(a) all right, title and interest in any invention,
modification, or advance, whether or not patentable, included in
the Technology;
(b) all right, title and interest in any invention,
modification, or advance, whether or not patentable, pertaining to
the technology known as [CMD] thereof, and domestic or foreign
patent applications disclosing or claiming the such invention,
modification or advance, any continuation, continuation-in-part or
division of such patent application and any patent issuing
thereon, and any reissue, re-examination or extension of such
patent;
(c) all right, title and interest in any domestic or
foreign patent application disclosing and/or claiming the
Technology, any continuation, continuation-in-part, or divisional
of such application, and any patent issuing on any such
application, and any reissue, reexamination or extension of any
such patent;
(d) all right, title and interest in any invention based
on the Technology and/or on any other technology, proprietary
information and/or intellectual property of Nexar to which
Assignor had access in the course of such engagement, which
invention is conceived or reduced to practice within one year
after termination of such engagement, any patent domestic or
foreign patent application disclosing or claiming any such
invention, any continuation, continuation-in-part, or divisional
of such application, and any patent issuing on any such
application, and any reissue, reexamination or extension of any
such patent;
(e) all right, title and interest in any works created or
authored by the Assignor in the course of such engagement or
within one year after the termination thereof pertaining to the
Technology, any copyright in such works, or domestic or foreign
copyright applications or registrations on such works, including
but not limited to the copyright applications and registrations
listed in Exhibit II (as used in this agreement, "copyright"
refers copyright, moral rights and semiconductor mask work
rights); and
(f) all right, title and interest to any apparatus,
articles of manufacture, prototypes, and documentation or other
tangible media included in the Technology, including, without
limitation, all apparatus, articles of manufacture, prototypes,
design and engineering drawings and specifications, created,
authored, developed or otherwise acquired by Assignor in the
course of such engagement or within one year after the termination
thereof.
As to inventions that qualify fully under the provisions of Section
2870 of the California Labor Code, the Assignor acknowledges that he or she has
been notified that this Agreement does not apply to any of those inventions that
Assignor developed entirely on his or her own time without using GDA's or
Nexar's equipment, supplies, facilities, or trade secret information, except for
those inventions that either: (1) relate at the time of conception or reduction
to practice of the invention to GDA's business (including that on behalf of
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Nexar), or actual or demonstrably anticipated research or development of GDA, or
(2) result from any work performed by Assignor for GDA.
No license, assignment, or other transfer of (or release of obligations
with respect to) intellectual property rights by Nexar to GDA or Assignor, or by
GDA to Assignor, is intended or implied by the provisions hereof.
The Assignor hereby covenants that no assignment, license, or other
transfer or encumbrance has, been, or will be made by them that would conflict
with this assignment all entire right, title and interest in the Technology to
Assignee.
Assignor hereby covenants that the lists in Exhibits I and II are
complete and accurate.
Assignor hereby covenants that he or she will promptly disclose to GDA
(and, in turn, GDA will promptly disclose to Nexar), all inventions,
modifications, or advances, whether or not patentable, made by Assignor during
the course of such engagement or within one year after termination thereof
Assignor hereby covenants that all services performed by Assignor
during the course of such engagement were and/or are on a work-for-hire basis in
favor of Nexar and that any works resulting therefrom are "works made for hire"
(as that term is defined in Section 101 of the United States Copyright Act) on
behalf of Nexar.
Assignor hereby covenants they he or she will (i) provide, on request,
to the Assignee (or its representatives) all pertinent facts and documents
relating to the Technology (including, by way of example, any patents and patent
applications listed in Exhibit I, and any legal equivalent thereof in this or a
foreign country, and any further patents that may issue thereon) as may be known
and accessible to it, and (ii) testify as to the same in any interference,
opposition, litigation or proceeding related thereto, and (iii) will promptly
execute and deliver to the Assignee (or its representatives) such instruments or
affidavits as may be necessary or desirable to secure assignment of the rights,
titles and interests conveyed herein, and to protect and enforce the same or to
otherwise carry out the purposes thereof.
Assignor hereby covenants that he or she has and will maintain in
confidence and not disclose, duplicate or use any confidential information
contained in the Technology or in the technology, proprietary information and/or
intellectual property of Assignee to which (on behalf of himself/herself, heirs,
successors and assigns) the Assignor may have had access during the aforesaid
engagement, and that he or she has. As used herein, "confidential information"
means any information, except that which (i) is generally known in the industry
or trade, (ii) becomes generally known in the industry or trade without fault of
the covenanting party, (iii) can be shown covenanting party to have been known
by it prior to receipt from GDA or Assignee, or (iv) is disclosed to the
covenanting party by a third party in a lawful manner and without any
restriction on disclosure.
ASSIGNOR
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---------------------------------------
Printed Name:
--------------------------
Residence:
-----------------------------
Date:
----------------------------------
====================================================================================================================================
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared ________________________, known to me to be the person
whose name is subscribed in the foregoing Assignment and acknowledged that he executed the same as his free act and deed for the
purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
====================================================================================================================================
GDA Technologies, Inc.
By___________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President
====================================================================================================================================
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ known to me to be the person
whose name is subscribed in the foregoing Assignment and acknowledged that he executed the same as his free act and deed for the
purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
=====================================================================================================================
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EXHIBIT B
GDA PARTIES WORKING ON TECHNOLOGY
---------------------------------
[CMD]
[CMD]
[CMD]
[CMD]
- 20 -
EXHIBIT C
AUTHORIZED NEXAR EMPLOYEES
--------------------------
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
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