exv10w51



 





Exhibit 10.51

*** Text Omitted and Filed Separately

Pursuant to a Confidential Treatment Request

under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)




THIRD AMENDMENT TO

DEVELOPMENT AND OEM SUPPLY AGREEMENT




     THIS THIRD AMENDMENT (the “Third Amendment”) to the Development and OEM Supply Agreement
entered into effective on July 26, 2005, as amended (hereinafter referred to as the “Agreement”) is
hereby made and entered into as of the last signature date below (the “Third Amendment Date”), by
and among Dot Hill Systems Corp., a Delaware corporation, having its principal place of business at
2200 Faraday Avenue, Suite 100, Carlsbad, California 92008, and Dot Hill Systems B.V., a
Netherlands corporation, having its principal place of business at Marssteden 94, 7547 TD Enschede,
the Netherlands (hereinafter jointly referred to as “Dot Hill”); and Network Appliance, Inc., a
Delaware corporation, having its principal place of business at 495 East Java Drive, Sunnyvale,
California 94089, and Network Appliance Holding and Manufacturing, B.V., a Netherlands corporation
formerly known as Network Appliance B.V., having its principal place of business at Vision Plaza
East, Boeing Avenue 300, 1119 PZ Schiphol-RIJK, the Netherlands (hereinafter jointly referred to as
“NetApp”). Dot Hill and NetApp may individually be referred to as a “party” and collectively as
the “parties” in this Third Amendment.



BACKGROUND:




     WHEREAS, Dot Hill desires to make available to NetApp under the Agreement certain
additional products that are currently known as [...***...], and NetApp intends to acquire from Dot
Hill such [...***...] products under the Agreement;



     WHEREAS, Dot Hill and NetApp desire to set forth their agreement as to the application of the
base terms and conditions of the Agreement, together with certain exhibits made thereto, to such
[...***...] products, as set forth below in this Third Amendment; and



     WHEREAS, Dot Hill and NetApp also desire to supplement certain existing exhibits to the
Agreement, as set forth below in this Third Amendment.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Dot Hill and NetApp, Dot Hill and NetApp hereby agree to amend and do amend
the Agreement, as follows:



THIRD AMENDMENT:




     1. Application of Existing Provisions. Dot Hill and NetApp hereby agree that the base terms
and conditions of the Agreement, together with the provisions contained in the following exhibits
thereto, shall apply to the Shasta, [...***...] products. Notwithstanding the foregoing, the
provisions in Exhibit P, Rev. 1, shall apply only to
those Shasta, [...***...] Products that are made by [...***...] and/or its affiliates, as
successor-in-interest to Solectron Corporation and/or its affiliates, in their role as a Dot Hill
DCM and which are provided by Dot Hill to NetApp under the Agreement.



Dot Hill and NetApp Confidential

***Confidential Treatment Requested




1.









 








	 	 	 
	Description of Exhibits	 	Exhibit References
	Dot Hill Quality Requirements

	 	Exhibit E, Rev. 1
	Order Replenishment and Logistics Requirements

	 	Exhibit F, Rev. 2
	NetApp Customer Support Requirements

	 	Exhibit G, Rev. 1
	[...***...] Plan

	 	Exhibit H, Rev. 1
	Mutual Non-Disclosure Agreement

	 	Exhibit I
	Requirements Obligations

	 	Exhibit J, Rev. 1 
	NetApp Workmanship Standards

	 	Exhibit K
	Manufacturing Test Requirements

	 	Exhibit L
	On-Site Support Requirements

	 	Exhibit M
	List of NetApp Other Technology

	 	Exhibit O
	Business Continuity Plan

	 	Exhibit P, Rev. 1






     2. Modified Exhibits. Dot Hill and NetApp hereby agree that the exhibits attached hereto and
described in the column “Replacement Exhibit” in the table below shall replace in their entirety
their applicable corresponding exhibits described in the column “Existing Exhibit” in the table
below. The provisions in the Replacement Exhibits in the table below shall apply to the Shasta,
[...***...] products.



	 	 	 	 	 
	Description of Exhibit	 	Existing Exhibit	 	Replacement Exhibit
	Product Price and Bill of Materials Breakdown

	 	Exhibit B, Rev. 7
(as may be updated
pursuant to Section
6.5 of the base
Agreement)
	 	Exhibit B, Rev. 8
(as may be updated
pursuant to Section
6.5 of the base
Agreement)
	Product Forecast

	 	Exhibit D, Rev. 2
(as may be updated
pursuant to Section
6.5 of the base
Agreement)
	 	Exhibit D, Rev. 3
(as may be updated
pursuant to Section
6.5 of the base
Agreement)
	NetApp Designated Technology

	 	Exhibit N, Rev. 2
	 	Exhibit N, Rev. 3






     3. Supplementary Exhibits. Dot Hill and NetApp hereby agree that the exhibits attached hereto
and described in the column “Added Exhibit” in the table below shall supplement their applicable
corresponding exhibits described in the column “Existing Exhibits” in the table below. The
provisions contained in Exhibit A-2 and Exhibit C-3 below shall apply only to the
[...***...] products and not to any other products that may be provided by Dot Hill under the
Agreement. The provisions contained in Exhibit P-1 below shall apply only to those Shasta,
[...***...]



Dot Hill and NetApp Confidential

***Confidential Treatment Requested




2.









 








     Products that are made by [...***...] in its role as a Dot Hill DCM and which are provided by Dot
Hill to NetApp under the Agreement. Dot Hill will attempt to obtain a Business Continuance Plan
from [...***...] to complete Exhibit P-2 & Exhibit P-3 by [...***...]. The provisions contained in
Exhibit P-2 shall apply only to those Shasta, [...***...] Products that are made by [...***...]
and/or any of its affiliates in their role as a Dot Hill DCM and which are provided by Dot Hill to
NetApp under the Agreement. The provisions contained in Exhibit P-3 shall apply only to
those Shasta, [...***...] Products that are made by [...***...] in its role as a Dot Hill DCM and which
are provided by Dot Hill to NetApp under the Agreement.



	 	 	 	 	 
	Description of Exhibit	 	Existing Exhibits	 	Added Exhibit
	Engineering Specifications

	 	Exhibit A & Exhibit A-1
	 	Exhibit A-2
	Product Price and Bill of Materials Breakdown

	 	Exhibit B
	 	Exhibit B-1
	Statement of Work and Acceptance Criteria

	 	Exhibit C, Exhibit C-1
& Exhibit C-2
	 	Exhibit C-3
	Business Continuity Plan

	 	Exhibit P, Rev. 1
	 	Exhibit P-1






     4. Updated References. Notwithstanding anything to the contrary in the First Amendment or
Second Amendment to the Agreement, Dot Hill and NetApp hereby agree that each applicable reference
to an exhibit that is contained in the base terms and conditions of the Agreement and which is
described in the applicable row of the middle column of the table below shall be updated to its
corresponding reference in such row that is set forth in the far right hand column of the table
below.



	 	 	 	 	 
	Description	 	Original References	 	Updated References
	Engineering Specifications

	 	Exhibit A
	 	Exhibit A, Exhibit A-1, & Exhibit A-2
	Product Price and Bill of Materials Breakdown

	 	Exhibit B
	 	Exhibit B, Rev. 8 & Exhibit B-1
	Statement of Work and Acceptance Criteria

	 	Exhibit C
	 	Exhibit C, Exhibit C-1, Exhibit C-2 & Exhibit C-3
	Product Forecast

	 	Exhibit D
	 	Exhibit D, Rev. 3
	NetApp Designated Technology

	 	Exhibit N
	 	Exhibit N, Rev. 3
	Business Continuance Plan

	 	Exhibit P
	 	Exhibit P, Rev. 1, Exhibit P-1






Dot Hill and NetApp Confidential

***Confidential Treatment Requested




3.









 








     5. Miscellaneous. The modifications included in this Third Amendment shall have prospective
force and effect on and after the Third Amendment Date, and shall not retroactively affect any
rights or obligations of the parties under the Agreement. This Third Amendment may be executed in
counterparts by the authorized representatives of the parties, each of which shall be deemed an
original and all of which together shall form and constitute a single instrument. Each party
acknowledges and agrees that such executed counterparts of this Third Amendment may be delivered by
a party to the other party electronically through the use of .pdf files or by facsimile
transmission. Except as specifically modified or supplemented by or through this Third Amendment,
all other terms and conditions of the Agreement, including the provisions in any existing exhibits
to the Agreement, shall remain in full force and effect between the parties and be unaffected
thereby.



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Dot Hill and NetApp Confidential





4.









 








     IN WITNESS WHEREOF, the parties through their duly authorized representatives have
executed this Third Amendment to become effective as of the last signature date set forth below.



DOT HILL SYSTEMS CORP.




By:
 /s/ Dana W. Kammersgard           
            




Printed Name: Dana W. Kammersgard




Title: President




Date:
 11/2/07                                
               



DOT HILL SYSTEMS B.V.




By:
 /s/ Hanif I. Jamal                    
                 




Printed Name: Hanif I. Jamal




Title: Chief Financial Officer




Date:
 11/2/07                                
               




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Dot Hill and NetApp Confidential




5.









 





NETWORK APPLIANCE, INC.




By:
 /s/ Michael W. Wais  
       
            
                
             




Printed Name: Michael W. Wais




Title: Vice President, Supply Chain Management




Date:
 11/2/2007            
                                                     




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Dot Hill and NetApp Confidential




6.









 








NETWORK APPLIANCE HOLDING AND

MANUFACTURING, B.V.




By:
 /s/ Volker Weisshaar                 
              




Printed Name:
 Volker Weisshaar                     





Title:
 Director Legal Affairs EMEA        
           




Date:
 November 5, 2007                     
            




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Dot Hill and NetApp Confidential




7.









 








EXHIBIT A-2




Engineering Specifications




[...***...]




***
Confidential Treatment Requested

















 








EXHIBIT B, REV. 8




Product Price and Bill of Materials Breakdown




[...***...]




***
Confidential Treatment Requested




 









 











EXHIBIT B, REV. 8




Attachment 1




[...***...]




***
Confidential Treatment Requested




 









 











EXHIBIT B, REV. 8




Attachment 2




[...***...]




***
Confidential Treatment Requested




 









 








[...***...] STATEMENT OF WORK




[...***...]




Network Appliance & Dot Hill CONFIDENTIAL




***Confidential Treatment Requested




 









 








Statement of Work:

Network Appliance [...***...] Modifications & IBM PEP Revision 1.06 (Final)




[...***...]




*** Confidential Treatment Requested




					
	 	 	 	 	 
	Network Appliance & Dot Hill
	 	CONFIDENTIAL
	 	Page 2 of 2






 









 









EXHIBIT D, REV. 3




Product Forecast




[...***...]




***
Confidential Treatment Requested




 









 











Exhibit N, Rev. 3




List of NetApp Designated Technology




	 	 	 
	What	 	Comment
	[...***...]
	 	[...***...]






***
Confidential Treatment Requested




 









 











	 	 	 	 	 
	 

	 	Document No. 1-P-0028
	 	 
	 

	 	Edition A	 	 






EXHIBIT P, REV. 1




Business Continuance Plan




[...***...]




[...***...]




***
Confidential Treatment Requested