exv10w50



 





Exhibit 10.50

*** 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)




SECOND AMENDMENT TO

DEVELOPMENT AND OEM SUPPLY AGREEMENT




     THIS SECOND AMENDMENT (the “Second Amendment”) to the Development and OEM Supply Agreement
entered into effective on July 26, 2005 and the First Amendment thereto entered into effective on
August 3, 2006 (hereinafter collectively referred to as the “Agreement”) is hereby made and entered
into as of the last signature date below (the “Second 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 Second 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 Second Amendment;



     WHEREAS, Dot Hill and NetApp desire to modify certain requirements obligations which will
apply to NetApp’s purchase of certain SAS-based, SATA-based and other products, as set forth below
in this Second Amendment; and



     WHEREAS, Dot Hill and NetApp also desire to modify and replace or supplement certain existing
provisions and exhibits to the Agreement, as set forth below.



     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:



SECOND AMENDMENT:




     1. Application of Existing Provisions. For purpose of the Agreement, including
this Second Amendment, the Shasta, [...***...] products shall



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be defined as set forth in Exhibit B, Rev. 7. 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 which are provided by Dot Hill to NetApp under
the Agreement:




	 	 	 
	Description of Exhibits	 	Exhibit Letters
	Dot Hill Quality Requirements

	 	Exhibit E, Rev. 1
	NetApp Customer Support Requirements

	 	Exhibit G, Rev. 1
	Mutual Non-Disclosure Agreement

	 	Exhibit I
	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 Exhibits” in the table below shall replace in their entirety
their applicable corresponding exhibits described in the column “Existing Exhibits” in the table
below. The provisions in the Replacement Exhibits in the table below shall apply to the Shasta,
[...***...] products.



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

	 	Exhibit B, Rev. 6.2
	 	Exhibit B, Rev. 7 (as may be updated
pursuant to Section
6.5 of the base
Agreement)
	Product Forecast

	 	Exhibit D, Rev. 1
	 	Exhibit D, Rev. 2
(as may be updated
pursuant to Section
6.5 of the base
Agreement)
	Order Replenishment and
Logistics Requirements

	 	Exhibit F, Rev. 1
	 	Exhibit F, Rev. 2
	NetApp Designated 

Technology

	 	Exhibit N, Rev. 1
	 	Exhibit N, Rev. 2
	Requirements Obligations

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

	 	Exhibit H and Exhibit H-1
	 	Exhibit H, Rev. 1






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



	 	 	 	 	 
	Description of Exhibit	 	Existing Exhibits	 	Added Exhibits
	Engineering Specifications

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

	 	Exhibit C and
Exhibit C-1
	 	Exhibit C-2





Dot Hill and NetApp will add to the Agreement as a supplementary exhibit a business continuity
plan(s) mutually acceptable to the Parties for the manufacture of Products by [...***...] once such
plan(s) are agreed to by Dot Hill and NetApp. This plan will include information for sub-tier
suppliers providing components to be used by [...***...] to produce Products for sale to Dot Hill and
supply by Dot Hill to NetApp and NetApp DCMs.




     4. Updated References. 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 and
Exhibit A-1
	Product Price and Bill of Materials Breakdown

	 	Exhibit B
	 	Exhibit B, Rev. 7
	Statement of Work and Acceptance Criteria

	 	Exhibit C
	 	Exhibit C, Exhibit
C-1 and Exhibit C-2
	Product Forecast

	 	Exhibit D
	 	Exhibit D, Rev. 2
	Dot Hill Quality Requirements

	 	Exhibit E
	 	Exhibit E, Rev. 1
	Order Replenishment and Logistics Requirements

	 	Exhibit F
	 	Exhibit F, Rev. 2
	NetApp Customer Support Requirements

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

	 	Exhibit H
	 	Exhibit H, Rev. 1
	Requirements Obligations

	 	Exhibit J
	 	Exhibit J, Rev. 1
	NetApp Designated Technology

	 	Exhibit N
	 	Exhibit N, Rev. 2
	Business Continuance Plan

	 	Exhibit P
	 	Exhibit P, Rev. 1






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     5. Exhibits. Dot Hill and NetApp hereby agree to add the following paragraph to the end of
Section 3, Exhibits, of the base terms and conditions of the Agreement:



               “Additional exhibits, or revisions to existing exhibits, may be made and incorporated into the
Agreement by Dot Hill and NetApp upon their mutual written agreement. Any additional exhibit that
covers substantially similar subject matter within an existing exhibit for a new product shall be
labeled in sequential order by using the same letter number of an existing exhibit, but adding a
numerical reference to such new additional exhibit, e.g., Exhibit A-1, Exhibit A-2,
etc. A revised exhibit shall retain its original letter number, but such revised exhibit shall be
labeled with a new revision number, e.g., Exhibit B, Rev. 1, Exhibit B, Rev. 2,
etc. A revised exhibit that has been agreed to by the parties shall supersede in its entirety the
prior then-existing exhibit that contains the same or substantially similar subject matter.
Notwithstanding anything to the contrary, the provisions contained within Exhibit P, Rev.
1, shall apply only to those Products that are made by Solectron Corporation and/or any of its
affiliates (and/or [...***...] and/or its affiliates, as a potential successor-in-interest to
Solectron Corporation and its affiliates) in their role as a Dot Hill DCM and which are provided by
Dot Hill to NetApp under the Agreement. An Exhibit P-1 and/or Exhibit P-2 which
will apply to those Products that are made by [...***...], respectively, will be prepared and added to
this Agreement by the parties.



     6. Term of Agreement. Dot Hill and NetApp hereby agree to delete in its entirety Section 4,
TERM OF THIS AGREEMENT, of the base terms and conditions of the Agreement and to replace it with
the following:



     “4. TERM OF AGREEMENT



     The initial term of this Agreement shall begin on July 26, 2005 (the “Effective Date”) and,
unless terminated earlier in accordance with Section 20.3 or 20.4 of this Agreement, end on March
31, 2011. The term of this Agreement will automatically renew after March 31, 2011 for one or more
twelve (12)-month periods following the initial term unless either party informs the other in
writing of its intent not to renew the Agreement, at least [...***...] All sales of Products made by
Dot Hill to NetApp prior to July 26, 2005 shall be governed by this Agreement.”



     7. Modified Definitions



          a. Dot Hill Designated Contract Manufacturer. Dot Hill and NetApp hereby agree to delete the
last sentence of Section 5.3, Dot Hill Designated Contract Manufacturer, of the base terms and
conditions of the Agreement and replace it with the following sentence:




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          “For the purpose of the construction and interpretation of this Agreement, NetApp hereby
expressly approves of the following entities as Dot Hill Designated Contract Manufacturers: (i)
Solectron Corporation and/or its affiliates (and/or [...***...]and/or its affiliates, as a potential
successor-in-interest to Solectron Corporation and its affiliates), [...***...].”




          b. Trigger Event. Dot Hill and NetApp hereby agree to remove in its entirety the
provisions of Subsection 5.35(iv) (i.e., the expiration of the Initial Purchase Period for
Products) of the definition of Trigger Event that is contained within the base terms and conditions
of the Agreement.




     8. Final Product Acceptance. Dot Hill and NetApp hereby agree to add the following to Section
7, Final Product Acceptance:



          “As of the date of execution of the Second Amendment to the Agreement, NetApp hereby
acknowledges and agrees that it has provided Final Product Acceptance to Dot Hill for all Products
that are listed on Exhibit B, Rev. 7, as of such date. NetApp acknowledges and agrees that
it will not make any claims or seek any remedies against Dot Hill with respect to Dot Hill’s
failure occurring prior to the date of execution of the Second Amendment to the Agreement to meet
any dates or milestones that occur prior to the date of execution of this Second Amendment to the
Agreement based on the performance of Dot Hill’s responsibilities under Exhibit C,
Exhibit C-1 and Exhibit C-2 for any Product listed in Exhibit B, Rev 7
(each, a “Failure”). NetApp hereby releases Dot Hill from any claim based on any such Failure in
Exhibit C, Exhibit C-1 and Exhibit C-2. NetApp also waives, with respect
to such claims that could be raised to the extent based on any such Failure, any rights and
benefits conferred upon it by virtue of Section 1542 of the California Civil Code which states: “A
general release does not extend to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by him must have materially affected
his settlement with the debtor. NetApp further agrees not to make any claim that any Trigger Event
occurred based on any such Failure, whether the existence of such Trigger Event is now known or
unknown.”




     9. [...***...]. Dot Hill and NetApp hereby agree to delete in its entirety Section 10.2 of the
base terms and conditions of the Agreement relating to meet and confer obligations for [...***...].



     10. Cost Reductions. Dot Hill and NetApp hereby agree to delete in its entirety Section 12.4
of the base terms and conditions of the Agreement and to replace it with the following:



          “12.4 Cost Reductions




     (a) Dot Hill shall [...***...]



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 [...***...] pricing negotiated by NetApp under a NetApp purchasing arrangement [...***...] that implement such
cost reductions [...***...]. NetApp hereby authorizes and permits Dot Hill and Dot Hill DCMs to
purchase [...***...] at NetApp’s contracted price and purchasing arrangement for NetApp and/or
non-NetApp products. In exchange for such authorization and permission to purchase [...***...] for
non-NetApp products, Dot Hill [...***...] for use in Products to be supplied to NetApp under this
Agreement if Dot Hill chooses to exercise such authorization and permission.




     (b) All cost reductions to the Product units sold by Dot Hill to NetApp under the Agreement
which occur as the sole result of NetApp’s efforts to reduce actual Solectron-incurred overhead
costs, shall [...***...] for Product units sold by Dot Hill to NetApp under this Agreement [...***...];
provided, however, that such costs reductions arise solely as a result of NetApp’s meetings with
Solectron Corporation occurring no more than [...***...] after the first date of engagement, between
NetApp and Solectron, but ending in no event any later than [...***...] to accomplish the potential
cost reductions previously described. NetApp will advise Dot Hill immediately of the outcome of
these meetings with [...***...] and provide documented evidence of all cost reductions obtained or to
be obtained by no later than [...***...] and if NetApp fails to do so then, notwithstanding the
preceding sentence, Dot Hill shall [...***...] pursuant to the provisions of this Section 12.4(b).



     (c) Excluding any cost savings obtained through the benefit of the cost reductions set forth
in Section 12.4(a) and/or 12.4(b) of this Agreement which will be governed solely by such sections,
Dot Hill shall [...***...] (the “Margin Threshold”). The benefit of any royalties required to be paid
by NetApp to Dot Hill for use of Dot Hill Technology and/or Dot Hill IPR shall not be considered
when calculating the Margin Threshold.



     (d) Once the Margin Threshold is reached, Dot Hill will [...***...]. In calculating such [...***...],
any cost savings obtained for any Product units which are based upon the application of Sections
12.4(a) and/or 12.4(b) of this Agreement shall not apply to this calculation. For the purpose of
the interpretation and construction of this Section 12.4(d) the term “identified” as used herein
means a party has performed a substantial part of work necessary to drive the implementation of a
cost reduction. The mere issuance of an approval by a party to a proposed cost reduction, or the provision by a party of minor



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suggestions
for potential achievement of a proposed cost reduction, shall not result in a cost reduction being
“identified” by that party.




          (e) NetApp shall purchase then-existing units of Product (or components) that do not contain
incremental / additive cost reductions prior to its purchase of units containing incremental /
additive cost reductions. 




     (f) Neither NetApp nor any of its Affiliates shall enter into any agreement or other
arrangement with a Dot Hill DCM in order to circumvent the ability of Dot Hill to obtain the
benefits of any cost reductions available under this Section 12.4 including, without limitation,
any agreement or other arrangement with a Dot Hill DCM to pay or otherwise provide directly to
NetApp or any of its Affiliates any rebates or financial remuneration for units of Products sold by
Dot Hill. This Subsection 12.4(f) shall not, however, preclude a Dot Hill DCM from providing
directly to NetApp the benefit of those cost reductions, including any [...***...], that Dot Hill is
contractually obligated to provide a [...***...] to NetApp under this Agreement provided, however,
that: (i) NetApp disclose promptly in writing to Dot Hill whether there may be a benefit of cost
reductions flowing to NetApp as a result thereof, (ii) to the best of NetApp’s knowledge, any
agreement or other arrangement entered into by NetApp with a Dot Hill DCM to provide directly to
NetApp the benefits of such cost reductions will not result in any increase in the costs to Dot
Hill of any products or services procured or to be procured from such Dot Hill DCM, and (iii) Dot
Hill shall not be responsible for any costs or expenses incurred by NetApp or the Dot Hill DCM to
establish or maintain any agreement or other arrangement with NetApp under which NetApp may receive
the benefits of such cost reductions.”



     11. Termination Rights



          a. Dot Hill and NetApp hereby agree to delete Section 20.3 of the base terms and conditions of
the Agreement and to replace it with the following:




               “20.3    A party will have the right to terminate this Agreement in the event the other party
materially breaches any material provision of this Agreement and fails to correct such breach
within [...***...] after receiving written notice thereof. Any such notice shall specify with
particularity such breach and the fact that the Agreement may be terminated if such breach remains
uncured. If this notice has been sent and such breach in such notice remains uncured, then this
Agreement can be terminated by the party that provided such notice through its submission of a
separate written letter of termination to the other party, which termination will become effective
on the date specified in such separate written letter of termination.”



          b. Dot Hill and NetApp hereby agree to delete Section 20.4 of the base terms and conditions of
the Agreement and to replace it with the following:




               “20.4    A party shall have the right to terminate without cause this Agreement at any time
after [...***...] provided, however, that it has given the other party at least [...***...] prior written
notice of its intent to terminate this Agreement. Neither party shall be responsible to the other for costs or



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7.









 







damages to
the extent resulting solely from the termination of this Agreement in accordance with and under
this Section 20.4.”




     12. Survival. Dot Hill and NetApp hereby agree to add the following sentence to the end of
Section 30, Survival, of the base terms and conditions of the Agreement:



          “Additionally, each party’s other rights and obligations contained in the base terms and
conditions of this Agreement, together with any Exhibits to this Agreement, which by their nature
would continue beyond the expiration or earlier termination of this Agreement shall survive such
expiration or earlier termination. Notwithstanding anything to the contrary, all license rights
granted by Dot Hill in this Agreement to any Dot Hill Technology shall not survive any termination
of this Agreement in the scenario where such termination arises or results from NetApp’s material
breach of any material provision of this Agreement.”




     13. Miscellaneous. The modifications made above to the Agreement, including the addition of
certain new exhibits and the making of edits to certain exhibits to the Agreement, which have been
included in this Second Amendment shall have prospective force and effect on and after the Second
Amendment Date, and shall not retroactively affect any rights or obligations of the parties under
the Agreement. This Second 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 Second 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 Second 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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     IN WITNESS WHEREOF, the parties through their duly authorized representatives have
executed this Second 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:
	 	  10/1/07	 	 
	 

	 	 	 	 
	 
	 
	DOT HILL SYSTEMS B.V.	 	 
	 
	 	 	 	 
	By:
	 	  /s/ Hanif I. Jamal	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Printed Name: Hanif I. Jamal	 	 
	 
	 	 	 	 
	Title:

	 	Chief Financial Officer	 	 
	 
	 	 	 	 
	Date:
	 	  10/1/07	 	 
	 

	 	 	 	 





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	NETWORK APPLIANCE, INC.	 	 
	 
	 
	By:
	 	  /s/ Michael W. Wais	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Printed Name: Michael W. Wais	 	 
	 
	 	 	 	 
	Title:

	 	Vice President, Supply Chain Management	 	 
	 
	 	 	 	 
	Date:
	 	  Oct 1, 2007	 	 
	 

	 	 	 	 





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	NETWORK APPLIANCE HOLDING AND
MANUFACTURING, B.V.	 	 
	 
	 	 	 	 	 	 
	By:
	 	 /s/ Volker Weisshaar	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	Printed Name:	 	Volker Weisshaar	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title:
	 	Director Legal
EMEA	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	Date:
	 	October 1, 2007	 	 
	 	 	 	 	 





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EXHIBIT A-1




Engineering Specifications



[...***...]



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EXHIBIT B, REV. 7




Product Price and Bill of Materials Breakdown




[...***...]




***
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EXHIBIT B, REV. 7




Attachment 1




[...***...]




***
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EXHIBIT B, REV. 7




Attachment 2




[...***...]




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EXHIBIT C-2




Statement of Work and Acceptance Criteria




[...***...]




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EXHIBIT D, REV. 2




Product Forecast




[...***...]




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Exhibit F, Rev. 2




Order Replenishment and Logistics Requirements





	1	 	PURCHASE OF PRODUCTS, FORECASTS AND LEAD-TIMES
	 
	1.1	 	Overview. In accordance with the terms and subject to the conditions set forth in this
Agreement, Dot Hill agrees to sell the Products to NetApp and NetApp agrees to buy Products
from Dot Hill. It is expressly understood that, [...***...], NetApp has no obligation to purchase
any Products, or any minimum number of Products, hereunder. This provision shall, however,
not limit, diminish or affect any obligations that NetApp has to Dot Hill under [...***...] or
Sections 1.13, 1.14 and 1.15 of this Exhibit F, Rev. 2.
	 
	1.2	 	Supply Constraint and Allocation. If Dot Hill becomes aware of a potential supply constraint
of Product to NetApp, Dot Hill will notify promptly NetApp of such potential supply constraint
and the parties will work together in good faith to attempt to resolve such matter.
	 
	 	 	In the event that the supply of a Product to NetApp under this Agreement becomes constrained
and Dot Hill cannot meet NetApp’s forecasted requirements for such Product during the period
of the supply constraint, Dot Hill shall provide NetApp during this period with [...***...], or
(ii) [...***...].
	 
	 	 	For the purpose of interpretation of the immediately preceding sentence, any units of
Product that a Dot Hill DCM (a) [...***...] and (b) [...***...]. Dot Hill represents to NetApp that
as of the Effective Date of this Agreement, [...***...], Dot Hill will notify promptly NetApp of
any [...***...].





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	1.3	 	[...***...]. Upon the mutual written agreement of Dot Hill and NetApp, Dot Hill shall provide to
NetApp, starting on an agreed date following NetApp’s First Customer Shipment, [...***...] which
has been mutually agreed to by the parties, to allow for the following conditions:






a [...***...] to be delivered within [...***...] of a NetApp request occurring no earlier
than [...***...] after the date of any previous NetApp [...***...];




a [...***...] to be delivered within [...***...] of a NetApp request occurring no
earlier than [...***...] after the date of any previous NetApp [...***...]; and




a [...***...] to be delivered within [...***...] of a NetApp request occurring no earlier
than [...***...] after the date of any previous NetApp [...***...].




	 	 	Additionally, upon the mutual written agreement of Dot Hill and NetApp, the [...***...] and
[...***...] may, from time to time and at any time, be revised or modified based on anticipated
demand for Products that NetApp plans to purchase from Dot Hill under this Agreement.
	 
	 	 	If Dot Hill is unable to achieve any such [...***...] due to a Force Majeure Event or the
failure by any vendor or supplier operating under any NetApp supply arrangement to deliver
on a timely and sufficient basis to Dot Hill any drives or components which NetApp requires
for incorporation into Products that are to be made and sold by Dot Hill to NetApp, then Dot
Hill’s [...***...].
	 
	1.4	 	[...***...] In the event that NetApp desires to [...***...] Products covered under Purchase
Orders, then NetApp shall inform Dot Hill immediately in writing of its desires and provide
accurate and complete information to Dot Hill of its [...***...]. In the event of any [...***...],
then Dot Hill shall undertake some or all of the following mutually agreed actions for the
affected Products:






     (i) except as otherwise provided in Section 1.13, [...***...];




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     (ii) [...***...];




     (iii) promptly [...***...];




     (iv) discontinue any [...***...] provided, however, that NetApp [...***...];




     (v) notify Dot Hill’s DCM and its suppliers to [...***...], and use best efforts to have
Dot Hill’s DCM [...***...];




     (vi) use commercially reasonable efforts to have Dot Hill’s DCM attempt to [...***...];




     (vii) at NetApp’s written request and with the assistance of NetApp, use commercially
reasonable efforts to [...***...];




     (viii) perform or have performed a [...***...], and supply to NetApp reasonably requested
documentation of such [...***...] after completion thereof.




	 	 	Notwithstanding anything to the contrary, Dot Hill shall not be required to continue any of
the activities described above beyond a period of [...***...] after the date on which a [...***...]
occurs.






	1.5	 	Forecasts. NetApp shall submit forecasts to Dot Hill [...***...], and more frequently on an
as-needed basis. These forecasts will provide visibility into NetApp’s forecasted supply
demand for Products for [...***...], with updates made to such forecasts [...***...]. Within [...***...]
after receipt of the forecast, Dot Hill shall provide NetApp with an acknowledgement of the
forecast (“Supply Availability”) for the requested quantity of the Products in the forecast or
propose a revised quantity or schedule for supply of the Products. If a revised quantity or
schedule is proposed by Dot Hill, the parties shall confer in good faith and attempt in good
faith to agree upon a final Supply Availability for each applicable [...***...].
	 
	1.6	 	Submittal of Purchase Orders. NetApp shall initiate purchases of Products by submitting to
Dot Hill [...***...] blanket Purchase Orders via e-mail to a designated Dot Hill email address
based upon the mutually agreed forecast.





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	These	 	 Purchase Orders will be submitted by NetApp to Dot Hill at least [...***...] prior to the
beginning of each [...***...]. All [...***...] blanket Purchase Orders shall (a) specify the
quantities, applicable Total Price, payment terms, and shipping instructions for each of the
Products; and (b) refer to and be governed by the terms and conditions of this Agreement.
Blanket Purchase Orders shall be updated, as needed, to reflect agreed-upon Price adjustments
and agreed Products revision changes (including, but limited to, agreed engineering changes
and deviations).
	 
	1.7	 	Confirmation of Purchase Orders. Dot Hill shall confirm its receipt of the blanket Purchase
Order by notifying NetApp electronically within [...***...] after the receipt of the Purchase
Order. Dot Hill shall be required to accept all Purchase Orders that conform to a mutually
agreed forecast. Dot Hill shall notify NetApp of its acceptance or rejection of the blanket
Purchase Order by facsimile or electronic mail within [...***...] after its receipt of NetApp’s
Purchase Order.
	 
	1.8	 	Kanban Replenishment Process






	 	1.8.1	 	The “Kanban Replenishment Process” is defined as a [...***...] issued by NetApp or a
NetApp DCM to Dot Hill, which is managed by Dot Hill, to request [...***...], as more fully
set forth below. [...***...]. In a situation where Dot Hill must make a change in the
Kanban Replenishment Process due to a force majeure event that is described in Section
26 of the base terms and conditions of this Agreement, NetApp will not unreasonably
withhold, delay or condition such consent provided, however, such change does not result
in: (i) an increase to NetApp in cost or any of the time periods for replenishment set
forth below for the delivery by Dot Hill of Products, or (ii) a decrease in any of the
frequencies set forth below for the delivery by Dot Hill of Products.






	 	1.8.1.1	 	[...***...].





*** Confidential Treatment Requested





 









 








	 	 	 	 	 	 	 
	 	 	[...***...]	 	[...***...]	 	[...***...]
	 

	 	[...***...]
	 	[...***...]
	 	[...***...]








	 	1.8.1.2	 	[...***...].





	 	 	 	 	 	 	 
	 	 	[...***...]	 	[...***...]	 	[...***...]
	 

	 	[...***...]
	 	[...***...]
	 	[...***...]






*** Confidential Treatment Requested





 









 









	 	1.8.1.3	 	[...***...].





	 	 	 	 	 	 	 
	 	 	[...***...]	 	[...***...]	 	[...***...]
	 

	 	[...***...]
	 	[...***...]
	 	[...***...]







	 	1.8.1.4	 	[...***...].





*** Confidential Treatment Requested





 









 








	 	 	 	 	 	 	 
	 	 	[...***...]	 	[...***...]	 	[...***...]
	 

	 	[...***...]
	 	[...***...]
	 	[...***...]








	 	1.8.1.5	 	NetApp may require [...***...] as needed. If [...***...] are required, then NetApp shall
provide notice to Dot Hill by [...***...].






	 	1.8.2	 	The Kanban replenishment process will be managed within the NetApp or a NetApp
DCM manufacturing location and will issue [...***...]. A representative of Dot Hill or a Dot
Hill DCM will monitor the process to manage and identify the quantity of [...***...] in
order to satisfy the requirements of the Kanban Replenishment Process. The status of the
[...***...] by Dot Hill or a Dot Hill DCM in a [...***...].






	 	1.8.3	 	The average expected Kanban [...***...], however, [...***...].
	 
	 	1.8.4	 	For [...***...] Kanban needs, NetApp requires Dot Hill to have a [...***...]. The





*** Confidential Treatment Requested





 









 









	 	 	 	Dot Hill [...***...].
	 
	 	1.8.5	 	Intentionally left blank.
	 
	 	1.8.6	 	Dot Hill and NetApp will mutually agree on all [...***...]. All Products must be
[...***...] unless otherwise specified by NetApp, and must be [...***...]. (See Attachment
1) Upon each [...***...] back to Dot Hill. Dot Hill is also responsible for [...***...].






	1.9	 	Notification of [...***...]. In the event that Dot Hill is unable to support NetApp’s Kanban
Replenishment Process [...***...], then Dot Hill shall notify NetApp or NetApp’s DCM before the
[...***...].
	 
	1.10	 	Changes to Purchase Orders. NetApp shall provide notice to Dot Hill of any changes or
cancellations to blanket Purchase Orders that NetApp desires. Dot Hill shall notify NetApp of
acceptance or rejection of change orders within [...***...] after receipt of NetApp’s notification
of change or change order request.
	 
	1.11	 	Notice of [...***...]. Dot Hill shall immediately notify NetApp in writing of any anticipated
[...***...] as requested by NetApp, stating the reason [...***...]. If Dot Hill’s anticipated
[...***...], then Dot Hill shall, upon NetApp’s request, [...***...].
	 
	1.12	 	Unanticipated Consumption. If the consumption rate for the current month is greater than
that described under the [...***...], Dot Hill shall use commercially reasonable efforts to
support the greater demand provided, however, that the parties have mutually agreed in advance
upon the [...***...].
	 
	1.13	 	Rescheduling. Each party will attempt to identify and notify the other party of any Excess
Material, as defined below, [...***...]. For Products whose delivery is rescheduled later than
[...***...] from the original anticipated delivery date to NetApp or a NetApp DCM, [...***...],
provided these Products were





*** Confidential Treatment Requested





 









 









	 	 	manufactured pursuant to an accepted Purchase Order or manufactured to satisfy NetApp’s
upside requirements. On the [...***...], NetApp will take Excess Material or Dot Hill will
[...***...] on and after such [...***...] and determined based on the Dot Hill [...***...]. NetApp will
use its best efforts to clear Excess Material at [...***...] within a maximum period of [...***...].
If any Excess Material is not cleared within such [...***...] period, a non-cancelable Purchase
Order to buy all such Excess Material shall be issued by NetApp to Dot Hill prior to the end
of such period. NetApp will [...***...] after the end of such [...***...] period.
	 
	1.14	 	Cancellation of Purchase Orders. Upon cancellation of any Purchase Orders and after the
completion by Dot Hill of the agreed upon mitigation efforts in Section 1.4 that are
associated with such cancellation, Dot Hill will submit to NetApp a claim for an amount equal
to the sum of:






     (1) the amount for [...***...];




     (2) the amount for [...***...]; and




     (3) the amount for [...***...].




	 	 	NetApp shall not be responsible under this Agreement for any liability incurred by Dot Hill
for those units of Products which are not: (i) covered under Purchase Orders accepted by Dot
Hill or (ii) manufactured by or for Dot Hill to meet NetApp’s [...***...]. Under no
circumstances shall NetApp be liable for [...***...]. Also, NetApp’s liability for [...***...] will
be limited to those ordered within agreed lead times that Dot Hill has established and
agreed to with third parties for use in the production of Products for intended supply to
NetApp. Lead times were previously documented in the Manufacturing Readiness Review
conducted by NetApp and Dot Hill on or about April 18, 2007. Upon written request by
NetApp, these lead times will be updated from time to time by Dot Hill.
	 
	 	 	NetApp shall acknowledge in writing Dot Hill’s claim within [...***...] after NetApp’s receipt
thereof, and pay Dot Hill on any such claim made under





*** Confidential Treatment Requested






 









 









	 	 	this section within [...***...] after NetApp’s receipt thereof. NetApp shall be entitled to
audit the details behind any claim that may be made by Dot Hill under this section. If an
audit reveals an overpayment by NetApp of any such claim, then Dot Hill will immediately
refund or credit such overpayment to NetApp and, if such overpayment is in excess of [...***...]
of such claim, reimburse NetApp for the actual costs incurred in the performance of the
audit.
	 
	1.15	 	Expiration or Earlier Termination. Upon the expiration or earlier termination of this
Agreement, Dot Hill will provide to NetApp a summary of descriptions and quantities of
Products, including any FRU’s, available at [...***...] locations which are maintained by or for
Dot Hill. Upon written request by NetApp, Dot Hill will perform mitigation efforts for a
period of [...***...] by attempting to sell the components Products, including any FRU’s, to other
parties at then-current prices available to NetApp under the Agreement outside of units to be
retained for Warranty coverage under Section 23 of the Agreement. Upon the expiration of such
[...***...] period and the completion of any such requested efforts, Dot Hill will inform NetApp
of the amount of units remaining, including any FRUs, at such time and NetApp will issue a
non-cancelable Purchase Order to Dot Hill for such units, and will purchase such units at
their then-current price for immediate delivery to NetApp.
	 
	2.	 	END OF LIFE NOTIFICATION
	 
	2.1	 	Subject to the provisions of the Agreement, Dot Hill agrees to manufacture and supply to
NetApp the Products, and NetApp agrees to procure from Dot Hill the Products, during the term
of this Agreement. Dot Hill shall provide NetApp written notification of its intention to
assign the Products to an End of Life Status (“Notice of EOL”) at least [...***...] prior to the
date upon which said Products shall enter an EOL status. NetApp shall be allowed to place
final orders for all Products with Dot Hill [...***...] period. Dot Hill shall honor the final
Purchase Orders, notifying its suppliers of the EOL status and managing final component
purchases such that pricing for the final Purchase Orders shall be [...***...].
	 
	3.	 	LOGISTICS
	 
	3.1	 	The NetApp logistics requirements for the Product are as follows:






	 	3.1.1	 	Dot Hill will [...***...] following the Kanban Replenishment Process described in
Section 1.8 from the Dot Hill [...***...]. The [...***...] will be managed and owned by Dot
Hill or Dot Hill’s DCM.





*** Confidential Treatment Requested





 









 









	 	3.1.2	 	Dot Hill will own the Products until the [...***...], which will occur at the time
such Products are [...***...].
	 
	 	3.1.3	 	Unless otherwise agreed in writing by the authorized representatives of NetApp
and Dot Hill, all [...***...] costs shall be excluded from the Total Price of each of the
Products in Exhibit B. Such costs will be invoiced separately by Dot Hill to
NetApp and NetApp DCMs.
	 
	 	3.1.4	 	NetApp requires an EIA (i.e., Electronics Industry Association) label on all
inbound material delivered to NetApp or to NetApp’s designated manufacturing location.
All packaging and labeling of Products shall comply to the NetApp Inbound Packaging
Specifications. (See provisions in Attachment 1, which is attached below to this
Exhibit F)






	4.	 	REVERSE LOGISTICS
	 
	4.1	 	Returned Products. For units of Product returned by NetApp to Dot Hill that do not conform
to the warranty provided by Dot Hill to NetApp in Section 23 of the base terms of the
Agreement, Dot Hill will perform its warranty responsibilities as described therein, upon Dot
Hill’s authorization for the return of by NetApp of such units of Product. Dot Hill’s response
to a properly submitted NetApp-submitted request for authorization for the return of Products
that do not conform to such warranty shall be made by Dot Hill within [...***...] after Dot Hill’s
receipt of any such request. Upon completion of its warranty responsibilities for the repair
or replacement of a Product, Dot Hill will return back a Product, freight prepaid, to NetApp.
	 
	4.2	 	Credit and Re-Invoice Process. Solely for the purpose of tracking defective units of Products
returned by NetApp to Dot Hill under the warranty provisions in Section 23 of the base terms
of the Agreement and the subsequent delivery by Dot Hill of repaired or replacement Products
therefore, Dot Hill will: (i) issue a credit to NetApp or the NetApp DCM that acquires such
Products upon Dot Hill’s authorization for the return of such units with such authorization
not to be unreasonably withheld, delayed or conditioned, and (ii) re-invoice NetApp or the
NetApp DCM that acquires such Products in full for the repaired or replacement units of
Products delivered by Dot Hill.
	 
	4.3	 	Intentionally left blank.
	 
	4.4	 	Induced Damage to Products. If Dot Hill reasonably determines that a Product which is
returned by NetApp to Dot Hill has customer-induced or NetApp production-induced damage
arising from or resulting in a non-conformance of Products to the warranty provided by Dot
Hill under this Agreement, then Dot Hill will notify NetApp of such matter, and invoice to
NetApp the material and labor costs that Dot Hill incurs for out-of-warranty repair for such
units of Products.





*** Confidential Treatment Requested





 









 









	4.5	 	Packaging. Each Product that is authorized for return by Dot Hill will be packaged by NetApp
in a mutually agreed manner and returned to Dot Hill [...***...].
	 
	4.5	 	Address Changes. Dot Hill may change, modify or update the address of the [...***...], at any
time and from time to time, upon written notice to NetApp provided, however, that the [...***...]
of this Exhibit F, Rev. 1 are met.





Attachment 1




[...***...]




*** Confidential Treatment Requested





 









 






Exhibit H, Rev. 1

[...***...] Plan





	1	 	Overview: This exhibit supersedes and replaces Exhibit H and Exhibit H-1 in
their entirety, and contains provisions for payment by NetApp to Dot Hill for [...***...] incurred
by Dot Hill (collectively “NRE”).
	 
	2	 	[...***...] Unit Expenses. NetApp shall prospectively compensate Dot Hill for all future project
materials and prototype units, as well as expediting fees, for Product units as authorized in
the SOW, or as authorized in writing by NetApp.






	 	2.1	 	[...***...].
	 
	 	2.2	 	[...***...].
	 
	 	2.3	 	[...***...].
	 
	 	2.4	 	Dot Hill will provide a written summary of these expenses to NetApp prior to
requesting a purchase order. NetApp shall only be responsible to pay Dot Hill for
expenses which are authorized by a NetApp p.o. or otherwise pre-approved in writing by
NetApp.
	 
	 	2.5	 	NetApp will issue p.o.’s to Dot Hill for such authorized expenses pursuant to
the payment terms in the base terms and conditions of the Agreement.
	 
	 	2.6	 	For purposes of this Exhibit, “Project Materials” shall mean materials that are
used and consumed in the development of prototype products or product enhancements.
Project Materials are neither a capital expense nor a capital asset. Examples are EMI
gasket material for RFI testing, plastic for creating bezel designs, first article
PCBAs and bare metal.






	3	 	[...***...] Engineering Expenses. NetApp shall compensate Dot Hill for work authorized in the
SOW or in writing by NetApp performed by or for Dot Hill based on the total amount of hours
spent by Dot Hill’s employees and/or subcontractors in connection with the performance of
NRE-related matters, together with any travel, lodging and other incidental travel expenses
incurred to perform such work. NetApp shall pay Dot Hill for the performance of such
authorized work [...***...] that is spent. Such rate shall be subject to change by Dot Hill on
and after [...***...], upon
written financial justification, and explanation by Dot Hill, and subject to NetApp approval,
which approval will not be unreasonably withheld, delayed or conditioned.





Dot Hill and NetApp CONFIDENTIAL




*** Confidential Treatment Requested




 1.









 







NetApp shall also reimburse Dot Hill for all reasonable travel, lodging and incidental expenses,
pre-approved by NetApp in writing, incurred to perform such work. After the end of each calendar
month, Dot Hill will provide to NetApp a brief description of such work performed, the names of
individuals who performed such work, the amount of hours spent and a summary of incurred expenses
related to such work, together with an invoice(s) therefore. NetApp will pay Dot Hill on such
invoice(s) pursuant to the payment terms in base terms and conditions of the Agreement.





	4	 	Intellectual Property Ownership Rights. The mere payment by NetApp to Dot Hill for any work
performed by Dot Hill shall not entitle NetApp to claim any ownership rights in or to any
intellectual property rights created by or for Dot Hill. However, nothing contained in this
Section 4 shall operate to deprive NetApp or Dot Hill of their respective sole or joint
ownership rights with the other in or to any intellectual property rights associated with the
Products, as established in the base terms and conditions of this Agreement and the Technology
License Agreement.





5 Production Test Equipment and Tooling





	 	5.1	 	Production Test Equipment and Tooling. NetApp shall reimburse Dot Hill for test
equipment and tooling expenditures, which Dot Hill has made prior to the date of
execution of the Second Amendment to this Agreement, in order for Dot Hill to make
and/or have made Products (collectively, “Capital Outlays”).
	 
	 	 	 	Payment. NetApp shall pay to Dot Hill [...***...]. No additional payment shall be due
from NetApp for these items in Attachment 1 to this Exhibit H, Rev. 1. This
payment shall be due and payable to Dot Hill [...***...] after the date of submission by
Dot Hill of an invoice referencing a NetApp p.o. for this amount.
	 
	 	5.2	 	Future Costs for Production Test Equipment and Tooling. From time to time,
[...***...], the parties will review production test equipment and tooling plans for
Products covered or to be covered under the Agreement. To this end, [...***...].





Dot Hill and NetApp CONFIDENTIAL




*** Confidential Treatment Requested




 2.









 









	 	5.3	 	Ownership Rights in Production Test Equipment and Tooling. Dot Hill shall
retain title and all ownership rights and interests in and to all production test
equipment, tooling and/or other fixed equipment acquired by or for Dot Hill and for
which NetApp pays any amounts to Dot Hill, except for test equipment, tooling, or other
fixed equipment which is owned or leased by NetApp from a party other than Dot Hill and
authorized by NetApp for use by Dot Hill All payments made by NetApp under this
Section 5 are intended to compensate Dot Hill for amounts expended by Dot Hill to
establish a proper production test, and/or manufacturing environment for Dot Hill to
make and/or have made Products, and shall not result in the sale or transfer to NetApp
of title or any ownership rights and/or interests in or to any production test
equipment, tooling or other fixed equipment, or any intellectual property rights
therein or related thereto. Upon written request by NetApp and subject to NetApp’s
compliance with the terms and conditions of the Agreement, NetApp shall have the right
to purchase, after the expiration of the Initial Purchase Period for a Product that is
being supplied by Dot Hill to NetApp under the Agreement and subject to Dot Hill’s
written approval, units of production test equipment or tooling for such Product which
meet all of the following requirements: [...***...].






	6	 	Preproduction Test Equipment and Tooling






	 	6.1	 	Future Costs for Preproduction Equipment & Tooling. From time to time [...***...]
the parties will review preproduction test equipment and tooling plans for Products to
be covered under the Agreement. To this end, [...***...]





Dot Hill and NetApp CONFIDENTIAL




*** Confidential Treatment Requested




 3.









 









	 	 	 	[...***...].
	 
	 	6.2	 	Ownership rights in Preproduction Test Equipment and Tooling. NetApp shall
retain title and all ownership rights and interests in and to all preproduction test
equipment, tooling and/or other fixed equipment acquired by NetApp from Dot Hill,
except for software developed by Dot Hill, and for which NetApp has paid all amounts
due to Dot Hill under this Agreement therefor. NetApp shall retain title and all
ownership rights and interests in and to all preproduction test equipment, tooling
and/or other fixed equipment acquired by NetApp from sources other than Dot Hill. With
the agreement of Dot Hill, NetApp may consign preproduction test equipment and tooling
and or other fixed equipment to Dot Hill, and no such consignment shall result in the
sale or transfer to Dot Hill of title or any ownership rights and/or interests in or to
any such preproduction test equipment, tooling or other fixed equipment.






	7	 	Other Dot Hill Assistance.  Upon written request by NetApp, Dot Hill is willing to help
assist NetApp in establishing a NetApp DCM to manufacture Products for intended sale to NetApp
subject, however, to NetApp’s payment to Dot Hill of all applicable NRE and other charges for
the performance of such work and NetApp’s compliance with all of the other terms and
conditions of this Agreement.   This obligation will exist only through the date of on which a
first article of Product is commercially available for sale from a NetApp DCM to NetApp and
cover those units of Products for which a NetApp DCM is authorized to manufacture pursuant to
the sublicense rights granted by NetApp pursuant to the separate Technology License Agreement
between NetApp and Dot Hill. If NetApp chooses to exercise the right to receive manufacturing
assistance from Dot Hill as set forth in this Section 7, NetApp will inform Dot Hill in
writing thereof prior to such date and, at that time, NetApp and Dot Hill will work together
in good faith to develop and prepare a Statement of Work (“SOW”) which defines, among other
things, each party’s duties and responsibilities, together with the applicable NRE and other
charges that will be due to Dot Hill for such work. Upon execution by the authorized
representatives of Dot Hill and NetApp of any such SOW, such SOW shall become part of this
Agreement and each party will then be obligated to perform its respective duties and
responsibilities in such SOW. Notwithstanding anything to the contrary, Dot Hill shall have no
obligation or duty under this Section 7 or any SOW to provide any services for or assistance
to support any outbound logistics, delivery, shipment and/or transportation of products which
are to be made by any NetApp DCM. Dot Hill shall have no obligation to support the
qualification and bringing on line of more than one NetApp DCM(s) to make products on behalf
of NetApp. Upon NTAP request, the parties shall discuss in good faith Dot Hill supporting any
qualification and bringing on line of a second or more NetApp DCM, on a time and materials





Dot Hill and NetApp CONFIDENTIAL




*** Confidential Treatment Requested





 4.









 








basis. Notwithstanding the foregoing, NetApp may, at its option, qualify and bring on line one or
more NetApp DCMs without Dot Hill support.



Dot Hill and NetApp CONFIDENTIAL




 5.









 











EXHIBIT H, REV. 1




Attachment 1




[...***...]




***
Confidential Treatment Requested






 









 











Exhibit J, Rev. 1

Requirements Obligations



1. Initial Purchase Period for Products. For the SAS and SATA products in the table below, NetApp
hereby agrees that, except as otherwise permitted under Section 4 of this Exhibit J, Rev.
1, NetApp shall purchase, directly and/or indirectly, during the period in the right-hand
column of the table below corresponding to such Products, [...***...] for such Products [...***...] from
Dot Hill [...***...] and shall have Dot Hill manufacture or have manufactured such Products for
intended supply to NetApp or NetApp DCMs (for each of the Products set forth below, each such
period set forth below will be referred to as an “Initial Purchase Period” for such Products).




	 	 	 
	 	 	For the products in the left-hand
	 	 	column, the Initial Purchase
	Description of Products	 	Period set forth below
	[...***...]

	 	Period beginning on [...***...] and ending on [...***...]





For the avoidance of doubt, NetApp hereby acknowledges and agrees that, except as otherwise
permitted under Section 4 of this Exhibit J, Rev. 1, (i) neither NetApp nor any of its
Affiliates shall [...***...] (determined regardless of whether such SAS or SATA products have [...***...]
during their applicable Initial Purchase Period set forth above, and (ii) NetApp shall purchase,
directly or indirectly, for NetApp and NetApp’s Affiliates all such SAS and SATA products under
this Agreement and [...***...].



2. Termination of Initial Purchase Period. Notwithstanding anything to the contrary in Section 1
of this Exhibit J, Rev. 1 in the event that a Trigger Event that applies to the Products
listed in the table in Section 1 of this Exhibit J, Rev. 1 occurs, then the Initial
Purchase Period for such Products shall terminate on the date on which such condition occurs.



3. Obligations after Initial Purchase Period for Products. Following the Initial Purchase Period
for the Products, and provided that a Trigger Event that applies to the Products listed in the
table in Section 1 of this Exhibit J, Rev. 1 has not occurred, then the following vendor
schedule will apply for such Products:




***
Confidential Treatment Requested




 1.









 








     (i) During the period beginning on [...***...] and ending on [...***...] (the “[...***...] Period”),
NetApp will purchase, directly or indirectly, from Dot Hill, and Dot Hill shall be granted, [...***...]
of the monthly supply demand of NetApp for Products falling within the Product category described
in the table in Section 1 above; and



     (ii) During the period beginning on [...***...] and ending on [...***...] (the “[...***...] Period”),
NetApp will purchase, directly or indirectly, from Dot Hill, and Dot Hill shall be granted, [...***...]
of the monthly supply demand of NetApp for Products falling within the Product category described
in the table in Section 1 above.


After [...***...], NetApp will be [...***...].




4. Relief from Requirements Obligations




     a. Technology License Agreement. Dot Hill and NetApp plan to enter into a separate Technology
License Agreement (“TLA”) that, subject to NetApp’s compliance with the provisions of this
Agreement and the TLA, will provide to NetApp certain license rights under Dot Hill IPR to permit
NetApp to use certain Dot Hill Technology for the [...***...] products and derivative products thereof
to make and/or have made various products.



     b. Second Source Purchases. Dot Hill and NetApp acknowledge and agree that, notwithstanding
the provisions of Sections 1 and 3 of this Exhibit J, Rev. 1 during each calendar month in
(a) the Initial Purchase Period for the Products in the table in Section 1 above, (b) the [...***...]
Period and (c) the [...***...] Period (collectively, the “Time Commitment Period”), NetApp may choose
to purchase from any NetApp DCM (an “Alternate Source”) and sell during such calendar month a total
aggregate amount of [...***...] in Sections 1 and 3 of this Exhibit J, Rev. 1 which pertain to
NetApp’s [...***...] for Products (the “Royalty Base”) without violating such requirements obligations
provided, however, that all of the following conditions are met:



          (i) NetApp is not in material breach of this Agreement or the TLA;




          (ii) All units of Products falling within the Product category described in the table in
Section 1 above and which are purchased from an Alternate Source will incorporate or make use of
[...***...] pursuant to provisions of the TLA; and




***
Confidential Treatment Requested




 2.









 








          (iii) NetApp has provided to Dot Hill at least [...***...] written notice prior to NetApp’s actual
use of an Alternate Source to make Products falling within the Product category described in the
table in Section 1 above.



For the avoidance of doubt, the Royalty Base for which relief may be provided to NetApp under this
Section 4(b) with respect to NetApp’s required fulfillment of its monthly requirements obligations
for Products in Sections 1 and 3 of this Exhibit J, Rev. 1 shall be computed and determined
in a manner set forth in the table below:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Maximum	 	Maximum
	 	 	Period of	 	Requirement]	 	Available	 	Royalty
	Description	 	Time	 	Obligations	 	Relief	 	Base
	Initial Purchase
Period — SAS & SATA
products

	 	[...***...]
	 	[...***...]
	 	[...***...]
	 	[...***...]
	[...***...] Period

	 	[...***...]
	 	[...***...]
	 	[...***...]
	 	[...***...]
	[...***...] Period

	 	[...***...]
	 	[...***...]
	 	[...***...]
	 	[...***...]





Also, it is hereby acknowledged that, during each calendar month occurring within the [...***...]
Period and the [...***...] Period, the [...***...].




     c. Communication of Information to Dot Hill. To ensure there is a smooth migration to an
Alternate Source, NetApp will provide to Dot Hill all relevant details and other information
relating to NetApp’s planned purchase of units that will be within the Royalty Base. The
requirements for such details and other information will be set forth in the TLA. NetApp shall
also [...***...].



     d. No Effect on Other Provisions of Agreement. Notwithstanding anything to the contrary, the
provisions in this Section 4 shall not affect, diminish or reduce any liabilities or obligations
that NetApp or any NetApp DCM has to Dot Hill under other provisions of this Agreement, including
any exhibits thereto, as to (i) the procurement of any products based on the purchase orders that
are submitted to Dot Hill, (ii) products produced to satisfy NetApp’s [...***...] and/or (iii) any
cancellation or other charges due to Dot Hill which are based on other provisions of the Agreement.



***
Confidential Treatment Requested




 3.









 







5. Derivative Products. Notwithstanding anything to the contrary, derivative products
incorporating Dot Hill Technology and which contain a [...***...]. For the avoidance of doubt, except
as otherwise permitted under Section 4(b) above, during the Time Commitment Period NetApp shall
[...***...] and shall [...***...]. For the purpose of the interpretation and construction of this Section
5, the term “derivative products” when used in this Section 5 shall mean [...***...].




[Remainder of Page Intentionally Left Blank]




*** Confidential Treatment Requested




 4.









 











Exhibit N, Rev. 2




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