exv10w1



 





Exhibit 10.1




CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY TERAFORCE TECHNOLOGY CORPORATION
FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS AGREEMENT WITH “***”.



Technology License and Marketing Agreement




     This Technology License and Marketing Agreement (this “License Agreement”)
is made and entered into as of November 13, 2003 (the “Effective Date”) by and
between VISTA Controls, Inc., a California corporation, with offices at 28965
Avenue Penn, Santa Clarita, CA 91355 (“VISTA”), and DNA Computing Solutions,
Inc., a Delaware corporation with offices at 1240 East Campbell Road,
Richardson, Texas 75081 (“DNA”).



Recitals




     Whereas, DNA is the owner or licensee of certain digital signal processing
technologies for use in connection with commercial digital signal processing
applications for radar, sonar, software radio, electronic warfare, and signal
intelligence, including the VQG4 and EAGLE I platforms and Wingspan
technologies;



     Whereas, VISTA has developed certain proprietary methods, designs and
processes related to the ruggedization, fortification and reinforcement of
circuit card assemblies so as to enable them to withstand various types of
adverse conditions, including, by way of example, adverse instability or
temperature conditions;



     Whereas, DNA desires to grant to VISTA and VISTA desires to obtain from
DNA a license to use and combine certain DNA digital signal processing
technologies with VISTA’s proprietary methods, designs and processes for the
purpose of developing, manufacturing and selling certain types of ruggedized
circuit card assemblies upon the terms and conditions set forth herein;



     Whereas, VISTA and DNA desire to jointly market and promote such VISTA
ruggedized circuit card assemblies utilizing the licensed DNA technologies upon
the terms and conditions set forth herein;



     Whereas, as of even date herewith, VISTA and DNA are entering into a
Technology Transfer and Support Agreement (the “Transfer Agreement”), a copy of
which is attached hereto as Exhibit B, pursuant to which DNA agrees to transfer
the licensed DNA technologies to VISTA and agrees to perform certain
consulting, engineering support and technical assistance to VISTA related to
the licensed DNA technologies on the terms and conditions set forth therein;
and



     Whereas, as of even date herewith, VISTA and DNA are entering into a
Distribution Agreement (the “Distribution Agreement”), a copy of which is
attached hereto as Exhibit C, pursuant to which VISTA agrees to develop and
sell to DNA, on an non-exclusive basis, and DNA agrees to procure from VISTA,
certain ruggedized circuit card assemblies utilizing the DNA technologies on
the terms and conditions set forth therein.



Agreement




     Now, Therefore, for and in consideration of the foregoing and of the

mutual promises, covenants, conditions, and undertakings hereinafter set forth,
the sufficiency of which is hereby



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acknowledged, and for other good and valuable consideration, it is agreed
by and between the parties as follows:



Article 1

Definitions




     Capitalized terms used herein shall have the meanings set forth in Exhibit
A.



Article 2

License Rights; Transfer of the Licensed Technology




     2.1 License Grant. DNA hereby grants the Licensee Group a worldwide,
perpetual and irrevocable (except to the extent terminated by DNA pursuant to
Section 7.2(d)), transferable, fully paid up right and license (with right to
sublicense) to make, have made, develop, use, import, offer to sell, sell,
import, copy, reproduce, distribute, transfer, license, vend, compile, modify,
translate, adapt, perform, prepare derivatives based on, publicly display and
exploit the Licensed Technology in the Field of Use as part of the Combined
Technology (the “License”). The License granted in the immediately preceding
sentence shall be exclusive in the Field of Use (the “Exclusive License”) for a
period of ten (10) years following the Effective Date (the “Exclusive Period”).
Unless otherwise agreed in writing by the parties, the License includes all
third party software and materials to the extent necessary for VISTA to use the
Licensed Technology as contemplated by this Agreement, and DNA agrees to
procure for and pass through to VISTA on VISTA’s behalf all such rights and
licenses from all such third parties necessary to grant the License.



     2.2 Exclusion of DNA; Grant of Limited Sublicense to DNA. Except as
otherwise expressly set forth in Section 6.2(c) of this License Agreement, the
grant of the Exclusive License set forth in Section 2.1 is to the exclusion of
DNA and its Affiliates, successors and assigns and all third Persons taking by
or through DNA except the Licensee Group; provided, however, that, subject to
the terms and conditions of this License Agreement, the Transfer Agreement and
Distribution Agreement (individually and/or collectively, the “Agreements”),
VISTA hereby grants to DNA a limited, revocable, non-exclusive,
non-transferable, fully paid up license (without right to sublicense) to the
Combined Technology, and a limited, non-exclusive, non-transferable, fully paid
up sublicense (without right to further sublicense) to the Licensed Technology
included in the Combined Technology, within the Field of Use solely as may be
necessary to perform its marketing, support, transfer and distribution
obligations in connection with the Products in accordance with the terms,
conditions and restrictions of the Agreements, and for no other purpose.



     2.3 License to Use Marks.



          (a) DNA grants VISTA a limited, non-exclusive, non-transferable (except as
set forth in Section 11.3), fully paid up license (without right to sublicense)
to use the Licensed Marks solely in connection with the advertising, promotion,
sale, offer for sale and distribution of the Products and exploitation of the
Combined Technology in the Field of Use. VISTA acknowledges and agrees that
all use of such Licensed Marks shall be subject to DNA’s prior written approval
and any goodwill arising therefrom shall inure to the benefit of DNA. VISTA
shall at all times comply with DNA’s trademark and usage policies, guides and
procedures, including any updates thereto, which shall be provided to VISTA in
writing from time to time. DNA may from time to time discontinue or modify the
Licensed Marks or add new Licensed Marks, and in such cases, VISTA shall adopt
the modified or new Licensed Marks as directed by DNA.



          (b) Subject to the terms and conditions of this License Agreement, VISTA
grants DNA a limited, revocable, non-exclusive, non-transferable, fully paid up
license (without right to sublicense) to use the VISTA Marks solely in
connection with the advertising, promotion, sale, offer for



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sale and distribution of the Products and the transfer of the Licensed
Technology, as provided for under the terms of the Agreements. DNA
acknowledges and agrees that all use of such VISTA Marks shall be subject to
VISTA’s prior written approval and any goodwill arising therefrom shall inure
to the benefit of VISTA. DNA shall at all times comply with VISTA’s trademark
and usage policies, guides and procedures, including any updates thereto, which
shall be provided to DNA in writing from time to time. DNA shall obtain
VISTA’s prior written approval prior to any use of the VISTA Marks that has not
been expressly approved in writing by VISTA. VISTA may from time to time
discontinue or modify the VISTA Marks or add new VISTA Marks, and in such
cases, DNA shall adopt the modified or new VISTA Marks as directed by VISTA.



     2.4 Survival of License Upon Bankruptcy. All rights and licenses granted
under or pursuant to this License Agreement by DNA to the Licensee Group are,
and shall otherwise be deemed to be, for purposes of Section 365(n) of the
United States Bankruptcy Code (as now constituted or hereafter amended, the
“Code”), licenses to rights to “intellectual property” as defined under the
Code. The parties hereto agree that the Licensee Group, as licensee of such
rights under this License Agreement, shall retain and may fully exercise all of
its rights and elections under the Code. The parties hereto further agree
that, in the event of the commencement of bankruptcy proceedings by or against
DNA under the Code, the Licensee Group shall be entitled to retain all of its
rights and licenses under this License Agreement.



     2.5 Transfer of the Licensed Technology. DNA agrees to transfer the
Licensed Technology and all know-how, information and materials relating
thereto to VISTA, and agrees to provide the certain consulting, engineering
support and technical assistance to VISTA related to the Licensed Technology,
in accordance with the terms and conditions of the Transfer Agreement.



Article 3

Marketing, Distribution and Support Efforts




     3.1 Marketing Obligations. Subject to the terms and conditions of this
License Agreement, each party agrees to use commercially reasonable efforts and
proceed earnestly and diligently to jointly advertise, market, promote,
display, perform the Combined Technology and Products and otherwise exploit
every opportunity available to commercialize the Products. Each party shall be
entitled to market, advertise and promote the Products in the manner it deems
most advantageous for the commercialization thereof, provided, however that all
such efforts by DNA shall be subject to VISTA’s prior written approval, which
approval shall not be unreasonably withheld, conditioned or delayed. The
Products and Combined Technology shall at all times be marketed and promoted
under such VISTA Marks, as VISTA shall require, and, in addition, to the extent
and in the manner mutually agreed between the parties, under the DNA Marks.
Subject to the foregoing, DNA agrees to cooperate with VISTA in connection
with, and participate in, any and all marketing programs, initiatives and plans
undertaken by VISTA, including without limitation, meeting with potential
Customers of the Products in an effort to promote the Products for sale to such
potential Customers. DNA agrees not to promote, advertise, market, demonstrate
or otherwise offer for sale the Products to any potential or prospective
Customers without notifying VISTA reasonably in advance thereof, complying with
its obligations under this Section 3.5 below and allowing VISTA to fully
participate in such promotion, advertising, marketing, demonstration or offer
for sale of the Products to such potential Customer. The parties acknowledge
that it is their intention to collaborate in the formulation of a mutually
acceptable annual marketing plan (“Marketing Plan”) which will, among other
things, define specific objectives, markets and customers for which each party
will have primary marketing and sales responsibility for the Products,
consistent with the terms and conditions set forth in this Article 3. To the
extent such Marketing Plan deviates from the Agreements, the Marketing Plan
shall control; provided, however, in the absence of any such Marketing Plan,
the Agreements shall apply in all respects.



     3.2 Marketing Materials. Unless otherwise agreed pursuant to a Marketing
Plan or otherwise in writing, VISTA shall be responsible for the design and
creation of all advertising and promotional materials, sales literature, press
releases or other items used in connection with promoting, advertising,
marketing, demonstrating, offering for sale and/or selling the Products (the
“Promotional Materials”), and the preparation of all copies of the Promotional
Materials. DNA shall, at its expense and at VISTA’s request, cooperate with
VISTA in preparing such advertising and promotional materials related to the



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Licensed Technology. DNA shall not use any Promotional Materials or any
other materials which have not been provided or approved in writing by VISTA,
and shall not use, fail to use or modify any such materials in a manner which
has not been expressly authorized in writing by VISTA. DNA shall not propose
terms or claims to potential customers of the Products with respect to the
Products which have not been previously approved in writing by DNA, and shall
not modify any of the Promotional Materials or Documentation in any manner
without VISTA’s prior written consent.



     3.3 Distribution. DNA shall offer for sale, promote, sell and distribute
the Products in accordance with the terms and conditions set forth in the
Distribution Agreement.



     3.4 Support. DNA shall be responsible for providing Customers and end
users of the Products with all reasonable technical and operational support,
maintenance and assistance regarding the features, uses and functionalities of
the Products relating to the Licensed Technology. VISTA shall be responsible
for providing end users of the Products with all reasonable technical and
operational support, maintenance and assistance regarding the features, uses
and functionalities of the Products related to the VISTA Technology and
Combined Technology (other than the Licensed Technology). The terms and
conditions of the support and maintenance obligations with respect to the
Products shall be as set forth in the Distribution Agreement or as otherwise
mutually agreed by VISTA and DNA from time to time.



     3.5 Marketing and Customer Reports.



          (a) On a monthly basis, DNA shall prepare and deliver to VISTA a detailed
report of all matters and information related to the promotional, advertising,
marketing, demonstration and offering for sale activities undertaken or
contemplated to be undertaken by DNA in the exercise of its rights and
performance of its obligations under this Article 3, which report shall
include, without limitation, the names and all contact information for
potential Customers for the Products, identification of applications and market
opportunities for the Products and the specific marketing initiatives
contemplated or undertaken by DNA and the actual and anticipated results
therefrom. DNA shall make available to VISTA DNA’s sales representatives and
other personnel as reasonably requested by VISTA for interviews by VISTA
regarding such marketing reports, all such matters addressed therein and all
other matters related to DNA’s exercise of its rights and performance of its
obligations under this Article 3.



          (b) Without limiting DNA’s obligations under Section 3.5(a) above,
together with such monthly reports, or on a more frequent basis as necessary to
comply with its obligations hereunder, DNA shall provide to VISTA a list of all
potential or prospective Customers of the Products identified by DNA or that
have otherwise come to the knowledge of DNA and all information relating
thereto, including without limitation, information regarding the appropriate
contact person with such potential Customer, details regarding any relationship
between DNA and such potential Customer, suggestions regarding the needs of
such potential Customer for the Products and the preferred methods of
approaching or marketing the Products to the potential Customer.



     3.6 Compliance. At all times in the performance of its obligations under
this License Agreement, each party agrees to: (a) comply with any policies,
procedures and instructions relating to the marketing and distribution of the
Products as may be mutually established in writing by the parties from time to
time; (b) comply with the highest industry standards and all applicable
international, federal, state and local laws, and rules and regulations
thereunder respecting the performance of its obligations under the Agreements;
(c) secure from the appropriate authorities, at its own cost and expense, all
permits, concessions or other documents required by law for the performance of
its obligations hereunder; (d) avoid deceptive, misleading or unethical
practices; and (e) conduct its business and perform its obligations under the
Agreements in a manner that reflects favorably at all times on the other party
and its goodwill and reputation.



Article 4

Fees and Payment





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     4.1 License and Transfer Fees. Subject to the terms and conditions of
this License Agreement and the Transfer Agreement and in consideration of the
performance by DNA of its obligations in accordance with this License Agreement
and the Transfer Agreement, VISTA shall pay DNA the fees (the “License and
Transfer Fees”) identified in the Transfer Agreement in the manner set forth
therein and according to the delivery schedule milestones and satisfaction of
the acceptance criteria set forth therein. The licenses and rights granted to
VISTA herein shall not be affected or contingent upon VISTA’s nonpayment of any
fees due under the Transfer Agreement as a result of DNA’s failure to comply
with its obligations under the Transfer Agreement.



     4.2 Residual Rights Fees.



          (a) In addition to all other payments due and owing from DNA hereunder,
DNA shall pay to VISTA a residual rights fee equal to *** percent (***%) of the
Product Premium from DNA’s Sales of the Products (the “DNA Residual Rights
Fee”).



               (i) Except as otherwise agreed herein, the term “Product Premium” shall
roughly approximate the difference between (A) the retail sales price of the
Product sold by DNA and (B) the retail sales price for DNA’s standard,
commercially equivalent product, as agreed between the parties. On an annual
basis or as more frequently as the parties may agree, the parties shall
mutually determine, in good faith, the calculation of the Product Premium.
Notwithstanding the foregoing, for the initial twelve-month period of the Term
(and for so long at the parties are unable to agree otherwise) the Product
Premium shall be equal to *** percent (***%) of the retail sales price of the
Product sold by DNA.



               (ii) As used herein, the term “Sales” shall mean the sale or license of
rights in the Products by a party, whether sold or licensed directly by a party
or indirectly through such party’s third party sales channels; provided,
however, that Sales shall include only direct sales or licenses to a single
Person and shall not include subsequent re-sales or licenses of the same
Products by such Person to any other Person.



          (b) In addition to the License and Transfer Fees, subject to DNA’s
compliance with its obligations under the Transfer Agreement and during the
Exclusive Period, VISTA shall pay to DNA a residual rights fee equal to *** of
the Profits from the Licensee Group’s Sales of the Products; provided, that at
such time as such aggregate residual rights fees reach *** Dollars ($***), the
percentage shall be reduced *** percent (***%) to *** percent (***%) of the
Licensee Group’s Profits from such Sales (the “VISTA Residual Rights Fee” and
together with the DNA Residual Rights Fee, the “Residual Rights Fees”).



               (i) As used herein, the term “Profits” shall mean the Net Selling Price
payable to a party in connection with such party’s Sales less the Fully
Burdened Cost.



               (ii) As used herein, the term “Net Selling Price” shall mean the gross
revenues received by a party for a Sale of the Product less any taxes,
commissions, government or third party fees, freight costs, insurance,
brokerage fees or other costs related to the distribution or Sale of the
Product.



               (iii) As used herein, the term “Fully Burdened Cost” shall mean the cost
to manufacture and distribute the Products, including all material, labor,
overhead, sales, general and administrative, cost of money, fee and warranty
fee. Subject to Section 5.1 of the Distribution Agreement, on an annual basis
or as more frequently as the parties may agree, the parties shall as mutually
determine the Fully Burdened Cost to be applied to future Sales at agreed
quantity breaks. The parties agree that the labor








*** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY TERAFORCE TECHNOLOGY
CORPORATION FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.



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rates, overhead rates, and sales, general and administrative rates used in
the calculation of the Fully Burdened Cost shall be the applicable Defense
Contractors Audit Agency (DCAA) approved rates or in the absence of DCAA
audited rates for the applicable time period, the rates shall be those
generally used by VISTA for its government funded contracts during that time
period .



     4.3 Expenses. Except as otherwise explicitly set forth in this License
Agreement or as otherwise agreed to by the parties in writing, each party shall
bear all of its own expenses incurred in performing its obligations under this
License Agreement. A party will reimburse the other party for reasonable
out-of-pocket costs and expenses required and actually incurred by such party
in performing its obligations hereunder only if the performing party has (a)
obtained the other party’s prior written consent to reimburse the performing
party for such expenses, which consent may be given or withheld in the
non-performing party’s sole discretion, (b) detailed such expenses on a form
acceptable to the other party, and (c) submitted supporting documentation
reasonably satisfactory to the other party.



     4.4 Payment; Reporting. VISTA shall pay the License and Transfer Fee in
accordance with the terms and conditions set forth in the Transfer Agreement.
Each party shall report and make its Residual Rights Fee payments to the other
party on a monthly basis no later than thirty (30) days following the end of
each calendar month during the Term. Any amounts due and not paid hereunder by
their applicable due day shall bear interest at the lesser of the rate of ten
percent (10%) per annum, or highest lawful rate, such interest to accrue daily
and be compounded monthly.



     4.5 Books and Records; Audit. Each party shall maintain during the Term
and for three (3) years thereafter, complete and accurate books and records
sufficient to determine the Residual Rights Fee payments due hereunder. In the
event that the other party does not agree with the determination by the paying
party of the Residual Rights Fee payments due hereunder, the parties shall use
their reasonable efforts to reach agreement on the disputed items or amounts.
At the request of the non-paying party, the paying party shall allow a
reputable independent public accounting firm or representatives of the
non-paying party, at the non-paying party’s expense, to verify the accuracy of
any Residual Rights Fee calculations. The non-paying party shall give the
paying party thirty (30) days written notice prior to beginning such audit.
Such audit shall be reasonably conducted during regular business hours in a
non-disruptive manner, and the party performing such audit must agree to be
bound to a reasonable non-disclosure agreement. The only information to be
reviewed during the course of such an audit shall be that necessary to verify
the Residual Rights Fee due hereunder. Such audit may review the Licensee
Group’s Sales, the direct material and labor costs, and that the applicable
DCAA approved rates or equivalent rates per Section 4.2(b)(iii) were applied to
the calculation of the Residual Rights Fee. The audit shall specifically not
review the data that makes up VISTA’s overhead, sales, general or
administrative rates. If any such audit discloses that any Residual Rights
Fees were understated, the paying party shall pay the amount of such
understated Residual Rights Fees plus interest as set forth above and if the
audit discloses that the amounts paid hereunder were understated by more than
five percent (5%) in any calendar quarter, the paying party shall reimburse the
nonpaying party for its reasonable and actual costs and expenses incurred in
connection with performing such audit. No more than one audit may be performed
within a one (1) year period, except if the preceding audit discloses an
understated, in which even the nonpaying party shall be entitled perform a
quarterly audit during the successive one year period.



Article 5

Ownership; Patent Rights and Litigation




     5.1 DNA Property. Except as otherwise set forth in Section 5.2 or 5.3
below, VISTA acknowledges and agrees that DNA and its Affiliates and/or their
respective licensors owns exclusively, and throughout the world, all right,
title and interest in and to (a) the Licensed Technology and Licensed Marks,
and all Intellectual Property Rights therein or relating thereto, (b) all
modifications, revisions, changes, copies, partial copies, translations,
compilations, improvements, enhancements, modifications, alterations or
derivative works to the Licensed Technology designed, developed, created,
invented, conceived of or reduced to practice by DNA or its Affiliates or any
other Person acting on their behalf (except to the extent otherwise set forth
in Section 5.2 below), and (c) all Pre-Existing Materials (collectively, the
“DNA



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Property”). To the extent VISTA assists with or contributes to the
creation or development any portion of the DNA Property, all such portions of
the DNA Property resulting therefrom shall be deemed to be “works made for
hire” and made in the course of services rendered and will belong exclusively
to DNA, with DNA having the right to obtain, and to hold in its name all
Intellectual Property Rights as may be appropriate to the subject matter. To
the extent that exclusive title and/or ownership rights may not originally vest
in DNA as contemplated hereunder in any DNA Property, VISTA hereby agrees to
irrevocably assign, transfer and convey to DNA all right, title and interest
therein and all Intellectual Property Rights relating thereto. VISTA and its
personnel shall, at DNA’s expense, give DNA and/or any DNA designee all
reasonable assistance and execute all documents necessary to assist and/or
enable DNA to perfect, protect, preserve, register and/or record its rights in
such DNA Property, and all Intellectual Property Rights therein. VISTA shall,
promptly upon request of DNA, or upon the termination, cancellation or
expiration of this License Agreement, turn over to DNA all DNA Property
obtained by VISTA or prepared or developed as a result of this License
Agreement, and any DNA documents or other materials held by or on behalf of
VISTA, together with all copies thereof.



     5.2 VISTA Property. DNA acknowledges and agrees that, except as set forth
in Section 5.3 below, VISTA and its Affiliates and/or their respective
licensors own exclusively, and throughout the world, all right, title and
interest in and to (i) the VISTA Technology, Combined Technology, Promotional
Materials, Products and VISTA Marks and all Intellectual Property Rights
therein or relating thereto, (ii) all modifications, revisions, changes,
copies, partial copies, translations, compilations, improvements, enhancements,
modifications, alterations or derivative works to the VISTA Technology,
Combined Technology (except as set forth in subsection (iii) below),
Promotional Materials and/or Products (except as set forth in subsection (iii)
below) designed, developed, created, invented, conceived of or reduced to
practice by or on behalf of DNA, VISTA, their respective Affiliates or any
other person acting on their behalf, and (iii) all modifications, revisions,
changes, copies, partial copies, translations, compilations, improvements,
enhancements, modifications, alterations or derivative works to the Licensed
Technology designed, developed, created, invented, conceived of or reduced to
practice (A) by VISTA or its Affiliates or any other Person acting on their
behalf and (B) by DNA or its Affiliates or any other Person acting on their
behalf made or created in response to or in order to operate or function in
conjunction with the VISTA Technology or Combined Technology (collectively, the
“VISTA Property”). To the extent DNA assists with or contributes to the
creation or development any portion of the VISTA Property, all such portions of
the VISTA Property resulting therefrom shall be deemed to be “works made for
hire” and made in the course of services rendered and will belong exclusively
to VISTA, with VISTA having the right to obtain, and to hold in its name all
Intellectual Property Rights as may be appropriate to the subject matter. To
the extent that exclusive title and/or ownership rights may not originally vest
in VISTA as contemplated hereunder in any VISTA Property, DNA hereby agrees to
irrevocably assign, transfer and convey to VISTA all right, title and interest
therein and all Intellectual Property Rights relating thereto. DNA and its
personnel shall, at VISTA’s expense, give VISTA and/or any VISTA designee all
reasonable assistance and execute all documents necessary to assist and/or
enable VISTA to perfect, protect, preserve, register and/or record its rights
in such VISTA Property, and all Intellectual Property Rights therein. DNA
shall, promptly upon request of VISTA, or upon the termination, cancellation or
expiration of this License Agreement, turn over to VISTA all VISTA Property
obtained by DNA or prepared or developed as a result of this License Agreement,
and any VISTA documents or other materials held by or on behalf of DNA,
together with all copies thereof.



     5.3 Pre-Existing Materials. If the VISTA Property, or the use, sale, or
manufacture thereof, includes or requires the use of any inventions or
materials previously made, developed, or copyrighted by or on behalf of DNA
(including, without limitation, the Licensed Technology), or any third party,
and not originated or developed under the Agreements (“Pre-existing
Materials”), then DNA grants and agrees to grant to VISTA and its Affiliates an
unrestricted, non-exclusive, worldwide, non-assignable (except as set forth in
Section 11.3), perpetual (except to the extent terminated by DNA pursuant to
Section 7.2(d)), royalty-free license to make, have made, develop, use, import,
offer to sell, sell, import, copy, reproduce, distribute, transfer, license,
vend, compile, modify, translate, adapt, perform, prepare derivatives based on,
publicly display and exploit such Pre-existing Materials as part of and
together with the VISTA Property. The license so granted to VISTA includes the
right to grant to any of VISTA’s Affiliates unrestricted, non-exclusive,
non-assignable, perpetual, royalty-free licenses to use, copy, and modify, the
inventions and information, and other aspects of the Pre-existing Materials,
but only to the extent necessary to use, copy,



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and modify the VISTA Property originated or developed as a result of the work
performed under or in anticipation of the Agreements.



     5.4 Acknowledgement; Prohibited Actions.



          (a) DNA shall not use any VISTA Property, materials or information
obtained under the Agreements to the detriment or adverse interest of VISTA or
any licensors and shall use reasonable efforts to prevent the unauthorized use
of any VISTA Property and any limitations thereof. DNA acknowledges the
existence, validity, enforceability, and VISTA’s ownership and/or rights in and
to the VISTA Property, and agrees not to contest or oppose in any fashion the
existence, validity, enforceability, or ownership of the VISTA Property, any
portion thereof, or any rights therein or related thereto, or initiate or
participate in any challenge to the scope, enforceability, validity or
ownership of, or any reexamination, reissue or cancellation of any VISTA
Property. DNA further acknowledges that any unauthorized use of the VISTA
Property, or any rights therein or related thereto, by DNA, or its agents or
representatives, will result in irreparable harm to VISTA, and VISTA will be
entitled to injunctive relief from any such unauthorized use by DNA, or its
agents or representatives.



          (b) VISTA shall not use any DNA Property, materials or information
obtained under the Agreements to the detriment or adverse interest of DNA or
any licensors and shall use reasonable efforts to prevent the unauthorized use
of any DNA Property and any limitations thereof. VISTA acknowledges the
existence, validity, enforceability, and DNA’s ownership and/or rights in and
to the DNA Property and agrees not to contest or oppose in any fashion the
existence, validity, enforceability, or ownership of the DNA Property, any
portion thereof, or any rights therein or related thereto, or initiate or
participate in any challenge to the scope, enforceability, validity or
ownership of, or any reexamination, reissue or cancellation thereof. VISTA
further acknowledges that any unauthorized use of the DNA Property or any
rights therein or related thereto, by VISTA, or its agents or representatives,
will result in irreparable harm to DNA, and DNA will be entitled to injunctive
relief from any such unauthorized use by VISTA, or its agents or
representatives.



     5.5 Patent Filing, Prosecution and Maintenance. Subject to the terms and
conditions of this Agreement, DNA shall have the primary right and
responsibility to prepare, register, record, file, prosecute and maintain in
the name and for the benefit of DNA (subject to the licenses and rights granted
in this License Agreement) all Licensed Technology (including all Intellectual
Property Rights included therein) using counsel of its choice at its expense.
DNA shall consult with VISTA and keep VISTA informed and apprised of the
preparation, registration, recordation, filing, prosecution and maintenance of
the Licensed Technology and/or any challenges by third Persons to the validity
or enforceability of the Licensed Technology. DNA shall provide or cause its
counsel to promptly provide to VISTA and its counsel timely copies of all
files, papers, notices, actions and correspondence related to the preparation,
registration, recordation, filing, prosecution and maintenance of the Licensed
Technology. DNA shall not permit any action, application or registration with
respect to any of the Licensed Technology to become abandoned without giving
VISTA the opportunity to pursue the prosecution thereof as soon as possible,
which shall not be less than sixty (60) days prior to the date on which the
same would otherwise become abandoned. Notwithstanding the foregoing, in the
event DNA, in VISTA’s reasonable discretion, fails to take all such necessary
or appropriate action to prepare, register, record, file, prosecute, maintain
or otherwise protect the Licensed Technology hereunder, VISTA shall be entitled
to (a) undertake, in its own name, any or all such actions and efforts upon
notice to DNA, and/or (b) appoint successor intellectual property counsel,
after consultation with DNA, if the counsel appointed by DNA has failed to
diligently pursue such actions. At no additional expense to VISTA, DNA agrees
to cooperate with VISTA and to cause its employees and former employees to
cooperate with VISTA, as VISTA may reasonably request, in the exercise of
VISTA’s rights under this Section 5.5, including, without limitation, (i)
meeting with and being interviewed by counsel for VISTA, (ii) promptly
executing all applications, documents, instruments, powers of attorney,
affidavits or writings reasonably requested by VISTA, (iii) promptly informing
VISTA of matters that may affect the preparing, registering, recording, filing,
prosecution, or maintenance of any such Patent Rights (such as becoming aware
of an additional inventor who is not listed as an inventor in a patent
application)and/or (iv) giving truthful testimony as reasonably requested by
VISTA.



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     5.6 Infringement.



          (a) Notice. In the event that either party to this License Agreement
shall learn of the infringement by a third party of any of the Licensed
Technology, VISTA Technology, Combined Technology or Products, that party shall
call the attention thereto of the other party in writing and shall provide the
other party with reasonable evidence of such infringement.



          (b) Investigation. Both parties shall use their best efforts in
cooperating with each other to investigate and/or terminate such infringement
without litigation. Upon their determination that infringement of the Licensed
Technology exists, DNA shall have the primary right, but not the obligation, to
formally notify the infringing party that infringement of the Licensed
Technology exists. Unless otherwise agreed between the parties, VISTA shall
have the sole right to investigate, pursue and resolve any infringement or
misappropriation claims relating to the VISTA Technology or Combined
Technology, other than with respect to the Licensed Technology included therein
which shall be subject to Sections 5.6(c) through (f) below. DNA shall have
the sole right to investigate, pursue and resolve any infringement or
misappropriation claims relating to the Licensed Technology, except as it
relates solely to the Combined Technology or Products.



          (c) VISTA’s Election to Pursue. If the efforts of the parties are not
successful in abating the infringement of the Licensed Technology within ninety
(90) days after the infringer has been formally notified of infringement by
DNA, VISTA shall have the right to (i)(A) to bring suit in its own name or in
DNA’s name for infringement of the Licensed Technology; (B) in any such suit to
enjoin infringement and to collect and retain all damages, profits, and awards
of whatever nature recoverable for such infringement for its own use; and (C)
to settle any claim or suit for infringement of the Licensed Technology by
granting the infringing party a sublicense under the provisions of this License
Agreement; or (ii) decline to initiate or participate actively in any suit, and
VISTA shall give notice in writing to DNA within sixty (60) days after said
ninety (90) day period of VISTA’s election. DNA hereby consents to and
authorizes VISTA (to the exclusion of DNA) to assert and enforce against any
and all third Persons all legal and/or equitable rights granted under the
Licensed Technology with regard to infringements or misappropriations of the
Licensed Technology on or after the Effective Date.



          (d) DNA’s Right to Pursue. In the event VISTA declines to initiate or
participate actively in any suit in accordance with the provisions of Section
5.6(c), DNA is then empowered: (i) to bring suit in its own name or if required
by law jointly with VISTA for infringement of the Licensed Technology; (ii) in
any such suit to enjoin infringement and to collect and retain all damages,
profits, and awards of whatever nature recoverable for such infringement for
its own use; and (iii) to settle any claim or suit for infringement of the
Licensed Technology by granting the infringing party a sublicense under the
provisions of this License Agreement.



          (e) Expenses and Recoveries. Such legal action as is decided upon shall
be at the expense of the party on account of whom suit is brought. Each party
will bear its own expenses in connection to any legal action brought jointly by
DNA and VISTA, and fully participated in by both. Any recovery, award or
judgment obtained in or resulting from any such action shall be the property of
the party on whose behalf the action is brought, or the joint property of VISTA
and DNA if the action is brought jointly.



          (f) Cooperation and Control. Each party shall cooperate with the other in
litigation proceedings instituted hereunder, including, without limitation,
joining in any action or proceeding if requested by the party instituting the
proceedings, but at the expense of the party on account of whom suit is
brought. Such litigation shall be controlled by the party bringing the suit.



9









 





     5.7 Release and Covenant Not to Sue. DNA hereby releases and covenants
not to sue the Licensee Group, the respective officers, directors and agents of
each Person of Licensee Group and any Person taking rights under this License
Agreement by, through or under Licensee Group, and their respective officers,
directors and agents, from any claims, liability or obligations, known or
unknown, for or in respect of infringements or misappropriations of the
Licensed Technology and Pre-Existing Materials in the Field of Use or as part
of the Combined Technology, whether occurring on, before or after the Effective
Date. Each party hereby represents and warrants to the other that to the best
of its actual knowledge, without any obligation of inquiry or investigation,
VISTA has not infringed or misappropriated the Licensed Technology or
Pre-Existing Materials, or any Intellectual Property Rights related thereto, in
any respect.



     5.8 License Notice Matters. VISTA may, from time to time, prepare, file
and/or record at its expense such notices and other documents (such as
memoranda of exclusive license) with such state, province, national and/or
foreign governmental offices and agencies as VISTA reasonably deems necessary
or appropriate to place third Persons on constructive notice of this License
Agreement and the licenses, rights, transactions and matters contemplated
herein and, upon the request of VISTA, DNA agrees to (i) promptly subscribe to,
acknowledge, execute and deliver to VISTA such notices and other documents for
such filings and recordations, and (ii) take such other actions as VISTA may
reasonably request in order to permit, accommodate and facilitate such filings
and recordations.



     5.9 Appointment of VISTA as Attorney-In-Fact. DNA agrees that if DNA is
unable because of DNA’s unavailability, dissolution or for any other reason, to
secure DNA’s signature to apply for or to pursue any application for any United
States of America or foreign patents or copyright registrations or other
filings or submissions covering the Intellectual Property Rights licensed or
assigned to VISTA herein, then DNA hereby irrevocably designates and appoints
VISTA and VISTA’s duly authorized officers and agents as DNA’s agent and
attorney-in-fact, to act for an in DNA’s behalf and stead to execute and file
any such applications, filings or submissions and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, copyright
registrations and other Intellectual Property Rights thereon with the same
legal force and effect as if executed by DNA.



Article 6

Confidentiality and Non-Competition




     6.1 Confidentiality.



          (a) Restrictions. Each party’s Confidential Information disclosed by such
party to the other party or otherwise obtained by the receiving party hereunder
is acknowledged to have actual or potential economic value from not being
generally known or readily ascertainable and to be the subject of efforts by
the disclosing party to maintain its secrecy. Except as expressly set forth in
the Agreements and except as may be performed by a party in the exercise of its
rights hereunder, the receiving party will not, without the express written
consent of the disclosing party, directly or indirectly, (i) disclose to any
person or entity, or make use of for itself or any other person or entity, any
Confidential Information of the disclosing party during the Term of this
License Agreement and for a period of five (5) years immediately following
expiration of this License Agreement and any extensions thereof (or with
respect to any particular trade secrets included in such Confidential
Information, for so long as such trade secret retains its status as a trade
secret), or (ii) copy, reproduce, create derivative works, divulge, transfer,
distribute, sell, offer for sale, license, lease or otherwise use or disclose
the other party’s Confidential Information or reverse engineer, disassemble or
decompile any prototypes, software or other tangible objects that embody the
other party’s Confidential Information. The protection afforded to the party’s
Confidential Information by this provision is not intended to limit in any way
any protection provided to any such information under any applicable federal,
state or local law.



          (b) Employees. Each party warrants that any employees, agents or
representatives, who have or may have access to the other party’s Confidential
Information have or otherwise agreed to preserve the confidentiality of the
Confidential Information in content substantially similar to the provisions
hereof, prior to any disclosure of the Confidential Information to such
employees.



10









 





          (c) Ownership. Except as otherwise provided herein, all documents and
other tangible objects containing or representing Confidential Information of
the disclosing party, and all copies thereof which are in the possession of the
receiving party, shall be and remain the property of the disclosing party and
shall be promptly returned to the disclosing party or, if stored on an
electronic media, shall be destroyed or permanently deleted upon the expiration
or termination of this License Agreement.



          (d) Remedies. Any use or disclosure of the other party’s Confidential
Information for any purpose other than as expressly provided for in this
License Agreement shall be deemed a material breach of this License Agreement
by the breaching party. Each party agrees that any violation or threatened
violation of this Section will cause irreparable injury to the disclosing
party, entitling the disclosing party to injunctive relief in addition to all
legal remedies.



          (e) Confidential Information Defined. As used herein, the term
“Confidential Information” means all tangible or intangible information which a
party considers to be confidential information, is the subject of reasonable
efforts to keep it confidential, including, without limitation, the trade
secrets of the disclosing party and all information regarding such party’s
products or services, research and development efforts, product manufacture and
installation, product or service cost or pricing, personnel allocation or
organizational structure, development and expansion or contraction plans, and
legal or financial affairs of the disclosing party.



          (f) Exclusions. The obligations of confidentiality with respect to
Confidential Information contained in this Section 6.1(a) shall not apply to
information for which the receiving party can substantiate, as established by
documentary evidence: (i) that was known to the receiving party at the time it
was disclosed by the disclosing party to the receiving party; (ii) that was, or
has become, publicly known and made generally available in the public domain
through no wrongful act of the receiving party; (iii) that was or is rightfully
received from a third party without any breach of this License Agreement or
such third party’s obligations of confidentiality; (iv) that is approved for
release by prior written authorization of the disclosing party; or (v) that the
receiving party is required by law to disclose pursuant to court order or other
governmental requirement, but only after giving the disclosing party notice and
a reasonable opportunity to seek a protective order.



     6.2 Noncompetition.



          (a) Restrictions. DNA agrees that, during the Term of this License
Agreement and for a period of five (5) years hereafter, none of DNA or its
Affiliates or any of their respective directors, officers, employees, agents,
representatives or contractors (the “Restricted Persons”) shall do, or cause or
permit the doing of, any of the following except to the extent expressly
provided for in this License Agreement:



               (i) design, research, development, manufacture, import, export, market,
advertise, promote, display, perform, offer for sale, sell, license,
sublicense, distribute or exploit products or technologies that are the same or
substantially the same as, functionally equivalent to, or in substantial
competition with the Products, Licensed Technology in the Field of Use,
Combined Technology (other than the portion of the Combined Technology
constituting Pre-Existing Materials, and then, only outside the Field of Use
and to the extent it existed prior to the Effective Date) or VISTA Technology
or that are based upon, incorporate or are derivative works of any the
foregoing (collectively, the “Restricted Activities”); or



               (ii) own, manage, operate, join, control or participate in the ownership,
management, operation or control of, any business, whether in corporate,
proprietorship or partnership form or otherwise where such business is engaged
in the Restricted Activities; provided, however, that nothing herein shall
preclude any Restricted Persons from holding not more than five percent (5%) of
the outstanding shares of any publicly held company irrespective of its
activities.



11









 





          (b) Acknowledgement. DNA acknowledges and agrees that the covenants
contained in this Section 6.2 are reasonably necessary to protect the
legitimate interests of VISTA, are reasonable with respect to time and
territory, and do not interfere with the interests of VISTA in any unreasonably
manner or the public. DNA further acknowledges and agrees that the description
of the covenants contained in this Section 6.2 are sufficiently accurate and
definite to inform it of the scope of the covenants. The parties hereto
specifically acknowledge and agree that the remedy at law for any breach of the
foregoing will be inadequate and that VISTA, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damages. In the event that the
provisions of this Section 6.2 should ever be deemed to exceed the limitation
provided by applicable law, then the parties hereto agree that such provisions
shall be reformed to set forth the maximum limitations permitted.



          (c) Exceptions. Notwithstanding anything in this Section 6.2 to the
contrary, the Restricted Persons may engage in the Restricted Activities to the
extent expressly set forth below:



               (i) Rejected Good Faith Orders. In the event VISTA has actively
participated with DNA in pursuing the sale of Products to a Customer and
thereafter fails to accept in all material respects the terms and conditions of
an Order (as defined in the Distribution Agreement) that is submitted in good
faith by DNA and accurately and completely represents the terms and conditions
negotiated between DNA and such potential Customer regarding such purchase and
sale of Products and is approved in writing by VISTA (the “Rejected Good Faith
Order”), then DNA shall have the limited right to manufacture, or have
manufactured, such type and quantity of substitute products which use, in whole
or part, the VISTA Technology or the Combined Technology, including, without
limitation, any Intellectual Property Rights in or related to the VISTA
Technology or Combined Technology (other than the Licensed Technology
incorporated therein) solely for the purpose of completing the sale to such
Customer on the terms and conditions set forth in, or no more favorable that
those terms and conditions set forth in, the Rejected Good Faith Order. In the
event DNA fails to complete the manufacture and sale of such non-infringing
substitute products to the intended Customer within ninety (90) days following
the date on which such Rejected Good Faith Order was first submitted to VISTA
for its approval pursuant to Section 5.2 of the Distribution Agreement, DNA
shall be required to re-offer such Order to VISTA for its approval pursuant to
Section 5.2 of the Distribution Agreement.



               (ii) Product Discontinuations. In the event VISTA expressly discontinues
providing any Authorized Product for distribution by DNA pursuant to the
Distribution Agreement which has been in marketed, sold and distribution by DNA
for at least three (3) consecutive months prior thereto (each, a “Discontinued
Product”) and DNA desires to continue distributing such Discontinued Product to
its customers to whom DNA previously sold the Discontinued Products, DNA shall
be entitled to manufacture, or have manufactured, such type and quantity of
substitute products which do not use, in whole or part, the VISTA Technology or
the Combined Technology, including, without limitation, any Intellectual
Property Rights in or related to the VISTA Technology or Combined Technology
(other than the Licensed Technology incorporated therein) solely for the
purpose of promoting, advertising, marketing, selling and distributing such
non-infringing substitute products.



               (iii) Permitted Products. DNA shall retain the right to continue
marketing, selling and distributing the Permitted Products in the Field of Use
in the same manner and to the same extent DNA marketed, sold and distributed
such Permitted Products immediately prior to the Effective Date, which manner
and extent DNA represents and warrants to be in the ordinary course of its
business and consistent with its past practices. In the event DNA proposes to
develop, market, sell or distribute any Permitted Products alone, or
incorporating or embodying any improvements, enhancements, updates, new
versions, increased functionality or capabilities (“New Products”) in the Field
of Use, DNA hereby agrees to offer such New Products and all technology related
thereto to VISTA for inclusion as part of the Licensed Technology under this
License Agreement. DNA shall offer such New Products and related technology to
VISTA hereunder on terms and conditions consistent with this License Agreement,
but in any event no less favorable than DNA would be willing to offer such New
Products and related technology to a third party. VISTA shall have the right
to exercise its right of first offer hereunder within thirty (30) days
following such written offer by DNA.



12









 





Article 7

Term and Termination




     7.1 Term. The term of this License Agreement (the “Term”) shall commence
on the Effective Date and shall continue thereafter in perpetuity, unless
sooner terminated as provided herein.



     7.2 Termination.



          (a) Mutual. Either party may terminate this License Agreement upon prior
written notice to the other party if:



               (i) the other party is in material breach of this License Agreement and,
if such breach is curable, does not cure such breach within thirty (30) days
after the non-breaching party provides the breaching party with written notice
and a reasonable description of such breach; provided, however, that for
purposes of this Section 7.2(a), or



               (ii) the other party files a petition in bankruptcy, is adjudicated a
bankrupt or files a petition or otherwise seeks relief under or pursuant to any
bankruptcy, insolvency or reorganization statute or proceeding, or if a
petition in bankruptcy is filed against it or it becomes insolvent or makes an
assignment for the benefit of its creditors or a custodian, receiver or trustee
is appointed for all or a substantial portion of its business or assets,
provided such circumstance are not cured within thirty (30) days of the
commencement of the above-stated event. Nothing contained herein will be
deemed to preclude or impair any rights that VISTA may have as a creditor in
any bankruptcy proceeding.



          (b) By VISTA. VISTA may immediately terminate this License Agreement, in
whole or part, by written notice to DNA, and may regard DNA as in default of
this License Agreement, (i) if DNA is in default of its obligations under the
Transfer Agreement or the Distribution Agreement(ii) for the gross negligence,
dishonesty, malfeasance, fraud or misconduct of DNA and/or its affiliates,
employees, directors, agents, representatives or contractors, or (iii) in the
event the right of DNA in the Licensed Technology, or any portion thereof, are
for any reason determined to be void and not the sole property of DNA.



          (c) Consultation. Each party hereto agrees to consult in advance with the
other party hereto and to bring to the attention of the other party any
problems, differences of opinion, disagreement or any other matters which may
lead such party to terminate or seek to terminate this License Agreement. The
purpose and intent of the parties in including this provision is to ensure that
both parties to this License Agreement are made aware of any problems arising
out of or relating to this License Agreement or the relationship of the parties
hereunder, so that the parties hereto may, in good faith, consult with one
another concerning such problems and, where possible, resolve such problems to
the parties’ mutual satisfaction, thereby preserving their contractual
relationship and the goodwill and mutual respect presently existing between the
parties to this License Agreement.



          (d) Perpetual Nature of Agreement. DNA acknowledges and agrees that the
License, and all rights related thereto, granted herein are perpetual and
irrevocable notwithstanding any termination or expiration of any of the
Agreements; provided, however, that DNA shall have the right to terminate the
License and this License Agreement upon termination of the Transfer Agreement
(i) by DNA (under Section 7.2(a) above as incorporated into the Transfer
Agreement by reference pursuant to Section 8 of the Transfer Agreement) for
VISTA’s uncured failure to pay the undisputed License and Transfer Fee
thereunder in consideration for DNA’s satisfaction of its obligations under the
Transfer Agreement, or (ii) upon the termination of the Transfer Agreement by
VISTA pursuant to Section 3(c) thereof and the return by DNA of all amounts
paid by VISTA to DNA under the Transfer Agreement.



     7.3 Rights Upon Expiration or Termination. In addition to those
obligations upon expiration or termination of this License Agreement contained
elsewhere herein or provided by law, the following shall apply in the event of
termination for any reason:



13









 





          (a) Each party shall promptly, but no later than thirty (30) days
following the effective date of termination, pay to the other party all amounts
due and owing hereunder.



          (b) DNA shall provide DNA with a written report certified by an officer of
DNA listing the nature and quantity of the Products and other items, including
all associated packaging, labels, advertising, promotional material, and
displays in DNA’s or its Affiliates’ possession, custody or control on the date
of termination.



          (c) All rights granted to the parties hereunder shall immediately cease,
and each party shall, as directed by the other party, either deliver to other
party or permanently and irretrievably destroy (and certify such destruction in
writing) all physical and electronic evidence of the other party’s Confidential
Information; provided, however, that (i) except where this License Agreement is
terminated by DNA pursuant to Section 7.2(a)(i) above, VISTA shall be entitled
to continue exercising its rights hereunder for a period of one hundred eighty
(180) days of such expiration or termination; and (ii) except where this
License Agreement is terminated by VISTA pursuant to Section 7.2(a)(i) or
7.2(b), DNA shall be entitled to continue marketing and distributing its
inventory of the Products that is on hand at the time of such expiration or
termination for a period of one hundred eighty (180) days, after which DNA
shall immediately ship and deliver to VISTA, without charge to VISTA, all
existing inventory of Product, any packaging, labels, advertising, promotional
material, displays, and any other items bearing the Licensed Mark and any
related materials.



          (d) Termination of the Transfer Agreement or Distribution shall not
operate to terminate this License Agreement; provided, that termination of this
License Agreement shall automatically terminate the Transfer Agreement and
Distribution Agreement.



     7.4 Survival; Non-Exclusive Remedies. Notwithstanding anything in this
License Agreement to the contrary, the following provisions of this License
Agreement will survive its expiration or termination: Section 2.1, 2.2 (if
expiration or termination occurs less than ten (10) years after the Effective
Date), 2.4, 2.5 (assuming the Transfer Agreement is currently in effect), 3.4
(assuming the Distribution Agreement is currently in effect), 4.1 through 4.4
(to the extent subject to Section 7.3(a) above), 4.5 and Articles 1, 5
(provided, that Sections 5.5 and 5.6 shall survive only with respect to those
activities in effect as of the date of termination or expiration, and provided,
further that, Section 5.8 shall not so survive), 6, 7, 8, 9, 10 and 11. Any
such termination shall be in addition to any other rights or remedies available
at law or in equity to the terminating party and shall not affect any rights or
obligations that have accrued prior to the date of termination. VISTA is under
no obligation to terminate this License Agreement on the occurrence of any or
all of the events set forth in Section 7.2, and its failure to do so in any
instance will not be deemed a waiver of its right to do so.



Article 8

Representations, Warranties and Covenants




     8.1 Mutual. Each party represents, warrants and covenants to the other as
follows:



          (a) It has the right, power and authority to enter into and perform its
obligations under this License Agreement, and this License Agreement
constitutes a legal, valid and binding obligation on its part, enforceable
against it in accordance with its terms.



          (b) The execution, delivery and performance of this License Agreement by
such party will not result in the breach of any terms of, or constitute a
default under, or conflict with, or cause any acceleration of any obligation of
such party, or violate any applicable law, rule or regulation, and each party
will at all times comply with all applicable federal, state and local laws,
rules and regulations in the performance of its obligations hereunder and
obtain and possess all licenses, consents, permits and other required or
prudent authorizations to perform its obligations hereunder.



14









 





     8.2 By VISTA. VISTA represents, warrants and covenants to DNA as follows:



          (a) It is the legal and beneficial owner or authorized licensor of all
Intellectual Property Rights in the VISTA Technology.



          (b) To the knowledge of the executive officers of VISTA, the VISTA
Technology does not infringe upon or misappropriate any valid United States
Intellectual Property Rights of any third parties, nor are any of the executive
officers of VISTA aware of any threats or claims of infringement made by any
third parties against VISTA or any of the VISTA Technology.



     8.3 Disclaimer. EXCEPT AS SPECIFICALLY AND EXPRESSLY REPRESENTED AND
WARRANTED HEREIN, EACH PARTY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS,
IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM INFRINGEMENT OF
ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS, AND WARRANTIES BASED ON
A COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. EXCEPT AS
SPECIFICALLY AND EXPRESSLY SET FORTH IN ANY OF THE AGREEMENTS, NEITHER PARTY,
ITS EMPLOYEES, REPRESENTATIVES OR AGENTS WILL NOT BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN
NEGLIGENT OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.



     8.4 By DNA. DNA represents, warrants and covenants to VISTA as follows:



          (a) It is the legal and beneficial owner or authorized licensor of all
Intellectual Property Rights in the Licensed Technology, and has the full power
and authority to grant the rights in the Licensed Technology herein
contemplated, without the consent of any other person, and has all necessary
rights, licenses and approvals required to perform its obligations hereunder,
provide the Licensed Technology to VISTA in accordance with this License
Agreement and to otherwise provide the information and other deliverables
contemplated herein and by the Transfer Agreement and Distribution Agreement;



          (b) The Licensed Technology does not infringe upon, misappropriate or
violate any Intellectual Property Rights of any third party, and no allegation,
claim, action, or suit for the infringement, misappropriation or violation of
any Intellectual Property Rights of any third party has been made or is pending
against DNA, any Person from which DNA has obtained rights in connection
therewith or, to the extent related to the Licensed Technology, any Person to
whom DNA has granted rights in the Licensed Technology.



          (c) All services and efforts to be performed and taken by DNA hereunder
(including, without limitation and for the avoidance of doubt, the Support
Services, as defined in the Transfer Agreement, for the purpose of
incorporating this representation and warranty therein pursuant to Section 6(b)
thereof) will be performed in a professional, workmanlike manner, in accordance
with industry standards and by reasonably skilled persons who are sufficiently
trained to accomplish their assigned tasks.



          (d) VISTA shall have the right to use for its own purposes, any ideas,
concepts, processes, methods, techniques, inventions, materials and information
provided to or otherwise obtained or developed by VISTA (other than the extent
to which such was obtained by VISTA directly from DNA as supported by
documentary evidence) as a result of this License Agreement, without
restriction, liability or obligation, except as is expressly specified herein.



          (e) The Licensed Technology will comply, operate, perform and be capable
of being performed in accordance with its applicable documentation and
specifications, including, without limitation, the Information and Materials in
all respects.



15









 





          (f) All obligations owed to third parties with respect to the activities
contemplated to be undertaken by DNA pursuant to this License Agreement are or
will be fully satisfied by DNA so that VISTA will not have any obligations with
respect thereto.



Article 9

Indemnity and Insurance




     9.1 Indemnification by DNA. DNA will defend, indemnify and hold harmless
VISTA and its Affiliates, and their respective directors, officers, employees,
agents, Affiliates, assigns and successors-in-interest (individually and
collectively, the “VISTA Indemnitees”) from and against any and all
liabilities, damages, losses, claims, demands, assessments, actions, causes of
action, costs (including attorneys’ fees and associated expenses) and any of
them, arising out of or resulting from third party claims with respect to any
of the following:



          (a) any acts or omissions of DNA or its Affiliates, agents or
representatives, whether or not constituting, but including, any breach by DNA
of any representation, warranty or covenant of DNA contained in any of the
Agreements; and



          (b) the Licensed Technology, DNA Confidential Information, and DNA’s
advertising, promotion, sale, offer for sale, distribution, use or misuse of
the Combined Technology or Products (except as otherwise set forth in Section
9.2 below with respect to the VISTA Technology), including, without limitation,
(i) any claim for injury, death or property damage or for violation of any
Intellectual Property Right of any third party and any product liability claims
relating thereto and (ii) any claims by actual or potential customers or
suppliers of DNA.



     9.2 Indemnification by VISTA. VISTA will defend, indemnify and hold
harmless DNA and its Affiliates, and their respective directors, officers,
employees, agents, assigns and successors-in-interest (individually and
collectively, the “DNA Indemnitees”) from and against any and all liabilities,
damages, losses, claims, demands, assessments, actions, causes of action, costs
(including attorneys’ fees and expenses) and any of them, arising out of or
resulting from third party claims with respect to any of the following:



          (a) any acts or omissions of VISTA or its Affiliates, agents or
representatives, whether or not constituting, but including, any breach by
VISTA of any representation, warranty or covenant of VISTA contained in any of
the Agreements; and



          (b) any claim of violation of any valid United States Intellectual
Property Rights of any third party based solely upon the VISTA Technology.



     9.3 Indemnification Procedures.



          (a) Notice. If any third party makes a claim covered by Section 9.1 or 9.2
against an indemnitee with respect to which such indemnitee intends to seek
indemnification under this Section, such indemnitee will give prompt notice of
such claim to the indemnifying party, including a brief description of the
amount and basis therefor, if known; provided, however, that the failure to
give such notice promptly will not relieve the indemnifying party of its
obligations hereunder except to the extent prejudiced thereby.



          (b) Control of Defense. Upon the giving of such notice, the indemnifying
party will be obligated to defend such indemnitee against such claim, and will
be entitled to assume control of the defense of the claim with counsel chosen
by the indemnifying party; provided, however, that if DNA is the indemnifying
party, VISTA shall be entitled, upon notice to DNA at any time, to undertake
and assume sole control of the defense thereof with counsel of its own
selection, at DNA’s expense, if VISTA reasonable determines that DNA is unable,
due to financial reasons or otherwise, to continue actively and diligently
defending against such claim. The non-defending party will, to a commercially
reasonable extent, cooperate fully with, and assist, the defending party in its
defense against such claim in all reasonable



16









 





respects, at the defending party’s request and expense. The defending
party will take commercially reasonable steps to keep the non-defending party
fully apprised at all times as to the status of the defense. Notwithstanding
the foregoing, the non-defending party will have the right, at its expense, to
employ separate counsel in any such action, but the role of such counsel will
only be supportive of the defending party’s counsel. Neither party will be
liable for any settlement of action or claim effected without its consent,
which will not be unreasonably withheld. Notwithstanding the foregoing, the
indemnitee will retain, assume, or reassume sole control over all expenses
relating to every aspect of the defense that it believes is not the subject of
the indemnification provided for in this Section. Following indemnification as
provided in this Article 9, the indemnifying party will be subrogated to all
rights of the indemnitee with respect to the matters for which indemnification
has been made.



          (c) Satisfaction of Defense Costs. During the pendency of a suit,
proceeding, claim or demand against which DNA is required to indemnify any of
the VISTA Indemnitees pursuant to Section 9.1 above, VISTA may withhold
payments due to DNA under the Agreements or under any other business
arrangement between the parties to the extent reasonably necessary to conduct
the defense thereof and to satisfy any liability therein provided.



     9.4 Infringement Remedy. If any portion of the Licensed Technology, or
any part thereof, becomes, or in either party’s opinion is likely to become,
the subject of any claim or action covered by Section 9.1(a)(ii), then, DNA
shall at its expense and within thirty (30) days following such notice or
determination either: (a) procure the right to continue using same as
contemplated hereunder; (b) modify same to render same non-infringing (provided
such modification does not adversely affect the Licensed Technology); or (c)
replace same with an equally suitable, functionally equivalent, compatible,
non-infringing Licensed Technology. With respect to any of the foregoing,
VISTA shall be relieved of its payment obligations hereunder with respect to
such Licensed Technology for so long as it was affected thereby. If none of
the foregoing is commercially practicable or are otherwise not consummated
within ten (10) days following VISTA’s inability to continue using such
Licensed Technology such that VISTA can continue using the Licensed Technology
to the fullest extent contemplated hereby, then VISTA shall have the right to
terminate this License Agreement and shall be entitled, in addition to all
other rights and remedies at law, in equity or otherwise, to a refund of any
fees and charges paid by DNA for the period following the effective date of
termination and for the period during which the Licensed Technology was
affected thereby.



     9.5 Limitation. Notwithstanding anything to the contrary elsewhere in
this License Agreement, except for a party’s indemnification obligations and
confidentiality obligations under the Agreements, gross negligence or fraud,
neither party’s maximum total aggregate liability for any and all claims
arising under or relating to the Agreements, regardless of form and whether
based in contract or tort (including negligence) shall not exceed the amount
paid by VISTA to DNA hereunder.



     9.6 Insurance. Each party shall, at its sole cost and expense, obtain and
maintain from a reputable insurance company adequate liability insurance
coverage in accordance with customary and prudent business practices including,
without limitation, general liability, completed products and errors and
omissions coverages, , which coverage shall (a) contain coverage limits of
liability of not less than two million dollars ($2,000,000) per occurrence and
five million dollars ($5,000,000) annual aggregate, (b) name the other party as
an additional insureds with respect thereof, (c) contain a waiver of
subrogation against such the other party, and (d) provide for thirty (30) days
prior notice to be given to the other party in the event coverage is
substantially changed, cancelled or not renewed.



Article 10

Dispute Resolution




     10.1 Disputes. If any dispute, disagreement, question, claim or
controversy between the parties arising out of, in connection with or relating
to the interpretation or operation of any of the Agreements, any actual,
alleged or anticipated breach thereof or the performance or non-performance by
a party of its obligations hereunder or thereunder (a “Dispute”) shall arise
during the term of the Agreements



17









 





or the term of any survival of any provisions of such Agreements, the
parties shall in good faith attempt to resolve such Dispute promptly and in an
amicable manner under the dispute resolution procedure set out in this Article
10.



     10.2 Internal Dispute Resolution.



          (a) Dispute Resolution Committee. If a Dispute arises which is not
resolved by the operational personnel involved, the operational personnel of
either party shall promptly report the Dispute to the project managers of each
party (collectively called the “Dispute Resolution Committee”). The Dispute
Resolution Committee shall hold a meeting (in person or otherwise) within five
(5) days following notification in an attempt to resolve the Dispute.



          (b) Senior Executives. In the event that the Dispute Resolution Committee
is unable to resolve the Dispute within five (5) days following its first
meeting, it shall promptly notify the senior executives of each party
(collectively, the “Senior Executives”). The Senior Executives shall meet (in
person or otherwise) in an attempt to resolve the Dispute as promptly as
possible, but in any event no later than five (5) days following notification
thereof. If the Senior Executives cannot resolve the Dispute within five (5)
days following notification thereof (or such longer period as the parties may
agree), either party may submit such Dispute for resolution through the
mediation and arbitration procedures provided below.



          (c) Procedures. The Dispute Resolution Committee and Senior Executives, as
applicable, shall meet as often as reasonably necessary in order to gather and
furnish to the other all information with respect to the matter in issue which
they believe to be appropriate and germane in connection with its resolution.
The Dispute Resolution Committee and Senior Executives, as applicable, shall
discuss the Dispute and negotiate in good faith in an effort to resolve the
Dispute without the necessity of any formal proceeding. During the course of
negotiations, all reasonable requests made by one party to another for
non-privileged information, reasonably related to the Agreements, shall be
honored in order that each of the parties may be fully advised of the other’s
position.



     10.3 Formal Dispute Resolution. Any Dispute not resolved through the
escalation procedure of Section 10.2 will be resolved through mediation or, if
mediation does not resolve the dispute, through binding arbitration. The
language of the mediation or arbitration shall be English, and any in-person
mediation or arbitration will occur in Charlotte, North Carolina.



          (a) Mediation. The parties agree to select a mutually agreeable, neutral
third party to help them mediate any Dispute. Costs and fees associated with
the mediation will be shared equally by the parties.



          (b) Arbitration. Following completion of the mediation, either party may
submit the Dispute for final settlement by binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association;
provided, that any discovery conducted thereunder shall be concluded within
thirty (30) days following the submission of the Dispute and limited to no more
than twenty (20) interrogatories and fifty (50) document requests. The
arbitration shall be held before a single arbitrator mutually selected by the
parties, of if they cannot so agree, a panel of three arbitrators, one to be
selected by VISTA, one to be selected by DNA, and the third by agreement of the
two arbitrators selected by the parties. The parties’ consent to the
jurisdiction of the Federal District Court or State Court in Mecklenburg
County, North Carolina, for all purposes in connection with mediation and
arbitration, including (i) enforcement of the arbitration award, and (ii)
issuance of provisional remedies to protect rights, interests, assets or
property, including temporary or preliminary injunctive relief, to ensure
ultimate satisfaction of the mediation ruling or arbitration award. The
parties agree that the award made by the arbitrator shall be final and binding
on the parties, and they waive any right to appeal the arbitral award, to the
extent an appeal may be lawfully waived.



18









 





     10.4 Injunctive Relief. Notwithstanding anything in this Article 10, the
parties agree, however, that in order to enforce the provisions of this Article
10 and/or to preserve the status quo, either party may, within the exclusive
jurisdiction set forth in Section 10.3(b) above, seek and obtain an injunction
or other appropriate relief from a court of law or equity, but no such
application to a court shall in any way be permitted to stay or otherwise
impede the progress of mediation or arbitration as anticipated herein.



Article 11

Miscellaneous




     11.1 Independent Contractor Status. The parties to this License Agreement
are independent contractors and this License Agreement shall not be construed
to create any partnership, franchise or employment relationship. In addition,
nothing in this License Agreement shall be deemed to appoint or authorize one
party to act as an agent or other representative of the other party or to
assume or incur any liability or obligation in the name of or on behalf of the
other party, but this Section shall not be construed to diminish any licenses
or rights granted to VISTA under this License Agreement.



     11.2 Force Majeure. Any failure or delay in the performance by VISTA or
DNA of their respective obligations hereunder shall not be a breach of this
License Agreement if such failure or delay arises out of or results primarily
from fire, storm, flood, earthquake, or other acts of God, explosions, wars,
insurrections, strikes, work stoppages or slowdowns, unavailability of fuel or
utilities, epidemic or quarantine restrictions, or inability to obtain
essential raw materials despite commercially reasonable efforts to do so (each,
an “Event of Force Majeure”). In the event that an Event of Force Majeure
materially affects a party’s obligations hereunder, then upon notice to the
other party, the party affected thereby shall be relieved of its obligations
hereunder for so long as such Event of Force Majeure continues to have such
affect. Both VISTA and DNA shall use their commercially reasonable efforts to
avoid the occurrence and remove the causes of an Event of Force Majeure and to
continue performance of their respective obligations hereunder promptly
following the removal of such causes.



     11.3 Assignments. This License Agreement is binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns. Affiliates of VISTA are intended third party beneficiaries of this
License Agreement to the extent expressly provided herein. DNA shall not
assign or transfer any of its rights under this License Agreement (whether by
merger, operation of law or otherwise) or delegate any of its obligations or
duties hereunder without the prior written consent of VISTA, which may be
withheld in VISTA’s sole discretion. VISTA shall be entitled to assign,
transfer or delegate this License Agreement or any rights or duties under this
License Agreement upon prior written notice to DNA. Any assignment of this
License Agreement by either party shall not relieve or release such party from
any of its duties or obligations under this License Agreement.



     11.4 Notices. Any notice contemplated by or required or permitted to be
given under this License Agreement shall be in writing and (a) sent via
telecopier to the telecopier numbers set forth below, (b) delivered personally,
(c) sent via next day or overnight courier or delivery or (d) mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
parties’ respective addresses below (or, in each case, to such other address or
facsimile number as may be specified in writing to the other parties hereto):



	 	 	 
	DNA:

	 	VISTA:
	 	 	 
	DNA Computing Solutions, Inc.

	 	VISTA Controls, Inc.
	1240 East Campbell Road

	 	28965 Avenue Penn
	Richardson, Texas 75081

	 	Santa Clarita, CA 91355
	Attn: President

	 	Attn: VP and General Manager
	Fax: 469-330-4951

	 	Fax: 661-257-1585
	 
	    With a copy to:

	 	    With a copy to:







19









 






	 	 	 
	TeraForce Technology Corporation

	 	Curtiss-Wright Controls, Inc.
	1240 East Campbell Road

	 	3120 Northwest Boulevard
	Richardson, Texas 75081

	 	Gastonia, NC 28052
	Attn: Chief Financial Officer

	 	Attn: Robert H. Shaw, General Counsel
	Fax: 469-330-4951

	 	Fax: 704-869-4601







Such notices, requests and other communications sent as provided hereinabove
shall be effective: (i) if sent by telecopier on a business day before 6:00
p.m., Eastern Standard time, on such business day, but if sent by telecopier at
any other time, upon the next business day; (ii) upon receipt, when personally
delivered; (iii) the next business day, if sent by overnight courier or
delivery; and (iv) if sent by registered or certified mail, return receipt
requested, upon the expiration of the third business day after being deposited
in the United States mail.



     11.5 Expenses. Each party hereto shall pay all of its own administrative
expenses (including without limitation the fees and expenses of its agents,
representatives and counsel) incident to the preparation and implementation of
this License Agreement.



     11.6 Waiver. No waiver by either party hereto of any breach or default of
any of the covenants or agreements herein set forth shall be deemed a waiver as
to any subsequent and/or similar breach or default. The failure of any party
hereto to enforce at any time any of the provisions of this License Agreement
shall in no way be construed to constitute a waiver of any such provision nor
in any way to affect the validity of this License Agreement or any part hereof,
including the right of any party thereafter to enforce each and every
provision. The waiver by any party to this License Agreement of any breach or
violation of any provision of this License Agreement by the other party hereto
shall not operate or be construed to be a waiver of any subsequent breach or
violation thereof.



     11.7 Governing Laws, Venue, Jurisdiction. This License Agreement shall be
interpreted and construed in accordance with the laws of the State of North
Carolina and the United States of America. Any disputes, controversies or
differences arising out of or in connection with this License Agreement or the
making thereof, Including claims of fraud in the inducement, which cannot be
settled by mutual agreement shall be resolved by the state or federal courts
located in Mecklenburg County, North Carolina. All parties hereby submit to
the jurisdiction of said courts.



     11.8 Drafting. All parties hereto have been represented by counsel, and
each voluntarily enters into and agrees to be bound by this License Agreement
as written on the day it is signed. Authorship of this License Agreement shall
be deemed to be joint, and shall not be attributed to one party or another for
the purpose of construing its terms or provisions. The Recitals to this
License Agreement are for reference purposes only and shall not be binding upon
any party or otherwise used by a party to contradict or challenge the terms of
this License Agreement.



     11.9 Severability. If any provision of this License Agreement is declared
or found to be illegal, unenforceable or void, then both parties shall be
relieved of all obligations arising under such provision, but only to the
extent that such provision is illegal, unenforceable or void. Further, this
License Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its intent
or, if that is not possible, by substituting therefore another provision that
is legal and enforceable and achieves the same intended objective. If the
remainder of this License Agreement shall not be affected by such illegal,
unenforceable or void provision and is capable of substantial performance, then
each provision not so affected shall be enforced to the extent permitted by
law.



     11.10 Counterparts. This License Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
and by different parties in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same agreement. Each such agreement,
document or



20









 





instrument shall become effective upon the execution of a counterpart
hereof or thereof by each of the parties hereto.



     11.11 Media Releases. All media releases, public announcements and public
disclosures by DNA or VISTA, or their respective Affiliates, representatives,
employees or agents, relating to this License Agreement or its subject matter,
but not including any announcement intended solely for internal distribution by
a party or any disclosure required by legal, accounting or regulatory
requirements beyond the reasonable control of a party, shall be coordinated
with and approved in writing by the other party prior to the release thereof.



     11.12 Further Acts. Each party shall do, or cause to be done, all such
further acts, and shall execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, any and all such further documentation as
the other party reasonably requires to carry out the purposes of this License
Agreement.



     11.13 Entire Agreement; Amendments. This License Agreement and its
Exhibits (and to the extent applicable, the Transfer Agreement and the
Distribution Agreement) constitute the entire agreement between the parties
with respect to the subject matter hereof, and all prior agreements respecting
the subject matter hereof, either written or oral, expressed or implied, shall
be abrogated, canceled, and are null and void and of no effect. All amendments
to this License Agreement must be in writing and signed by the parties. Each
party represents and warrants to the other party that in entering into this
License Agreement it has not relied on any representations, promises or
assurances from the other party or any employee, officer, director,
representative, attorney or Affiliate of the other party not expressly
contained in this License Agreement. Any other terms or conditions shall not
be incorporated herein or be binding upon either party unless expressly agreed
to in writing by both parties.



     11.14 Export Restrictions. The Licensed Technology is subject to export
regulations of the U.S. Government, including the U.S. Department of State
(International Traffic in Arms Regulations, 22 CFR 120 et seq.) and the U.S.
Department of Commerce (U.S. Export Administration Regulations 15 CFR 730 et
seq.) VISTA will not export, re-export, resell, transfer or disclose, directly
or indirectly, any Licensed Technology obtained hereunder without complying
with applicable U.S. export control laws. DNA agrees to procure and provide to
VISTA, at DNA’s expense, all export and similar licenses and rights that are
necessary or advisable for the export of the Licensed Technology.



Signatures Appear on Following Page




21









 








     In Witness Whereof, the parties have executed and delivered this License
Agreement, in duplicate originals, by their respective persons or officers
hereunto duly authorized, to be effective as of the day and year first above
written.



	 	 	 	 	 
	 	 	VISTA Controls, Inc.
	 
	 	 	 	 
	

	 	By:
	 	/s/ DAVID DIETZ
	

	 	 	 	
 
	

	 	Name:
	 	David Dietz
	

	 	Title:
	 	President and GM
	 
	 	 	 	 
	 	 	DNA Computing Solutions, Inc.
	 
	 	 	 	 
	

	 	By:
	 	/s/ R. EUGENE HELMS
	

	 	 	 	
 
	

	 	Name:
	 	R. Eugene Helms
	

	 	Title:
	 	Chief Executive Officer







22









 






Exhibit A




Definitions




     “Affiliate” means any Person, directly or indirectly, controlling,
controlled by or under common control with a party.



     “Agreements” has the meaning set forth in Section 2.2 of this License
Agreement.



     “Code” has the meaning set forth in Section 2.4 of this License Agreement.



     “Combined Technology” means the methods, designs, processes, products,
materials, documentation, data, information, inventions, works of authorship,
trade secrets, software, hardware, technical data, ideas, know-how, concepts,
uses, applications and technologies resulting from the combination of the
Licensed Technology and the VISTA Technology, and all Intellectual Property
Rights therein or related thereto.



     “Confidential Information” has the meaning set forth in Section 6.1(f) of
this License Agreement.



     “Customer” has the meaning set forth in the Distribution Agreement.



     “Discontinued Products” has the meaning set forth in Section 6.2(c) of
this License Agreement.



     “Dispute” has the meaning set forth in Section 10.1 of this License
Agreement.



     “Dispute Resolution Committee” has the meaning set forth in Section
10.2(a) of this License Agreement.



     “Distribution Agreement” has the meaning set forth in the recitals to this
License Agreement.



     “DNA” has the meaning set forth in the first paragraph hereof.



     “DNA Indemnitees” has the meaning set forth in Section 9.2 of this License
Agreement.



     “DNA Property” has the meaning set forth in Section 5.1 of this License
Agreement.



     “DNA Residual Rights Fee” has the meaning set forth in Section 4.2(a) of
this License Agreement.



     “Effective Date” has the meaning set forth in the first paragraph hereof.



     “Event of Force Majeure” has the meaning set forth in Section 11.2 of this
License Agreement.



     “Exclusive License” has the meaning set forth in Section 2.1 of this
License Agreement.



     “Exclusive Period” has the meaning set forth in Section 2.1 of this
License Agreement.



     “Field of Use” means the applications, processes, practices, products and
methods related to Ruggedized digital signal processing solutions for all
marketplaces and applications worldwide. By way of example and not limitation,
marketplaces and applications includes all military and aerospace applications,
radar, sonar, software radio, electronic warfare, signal intelligence, smart
weapons, unmanned vehicles, avionics and deployed embedded systems for tanks,
unmanned vehicles and naval vessels.



     “Fully Burdened Cost” has the meaning set forth in Section 4.2(b)(iii) of
this License Agreement.



     “Information and Materials” has the meaning set forth in the Transfer
Agreement.



23









 





     “Intellectual Property Rights” means all (a) proprietary rights provided
anywhere in the world, whether arising pursuant to any foreign or domestic law,
rule, regulation, treaty, statute or at common law or otherwise, including,
without limitation (i) all patent rights and all letters patent, industrial
models, industrial designs, petty patents, patents of importation, patents of
addition, utility models, all applications for any of the foregoing, Patent
Cooperation Treaty applications, United States provisional patent applications,
supplementary protection certificates, certificates of invention and other
government issued or granted indicia of invention ownership including any
reissue, re-examination, extension, renewal, divisional, substitution,
continuation or continuation-in-part applications and patents; (ii) all moral
rights and copyrights in any work of authorship, including all registrations
and applications therefor, together with any renewal or extension thereof, and
all rights deriving therefrom; (iii) all trademarks, service marks, domain
names, trade names and trade dress, and all goodwill relating thereto; (iv) all
trade secrets, trade secret rights, know-how, and confidential information; and
(v) all other intellectual property and proprietary rights protectable, and in
each case where applicable including the right to apply for registrations,
certificates, or renewals with respect thereto and the right to prosecute,
enforce, obtain damages and remedies relating to, settle or release any past,
present, or future infringement or misappropriation thereof; and (b) licenses,
sub-licenses, franchises, assignments, agreements or any other evidence of any
right in any of the foregoing.



     “License” has the meaning set forth in Section 2.1 of this License
Agreement.



     “License Agreement” shall have the meaning set forth in the introductory
paragraph hereof.



     “License and Transfer Fees” has the meaning set forth in Section 4.1 of
this License Agreement.



     “Licensee Group” means VISTA and its Affiliates, and their respective
successors and assigns.



     “Licensed Marks” means any of DNA’s trademarks, service marks, trade
names, trade dress, logos, designs and insignias used or held for use by DNA in
connection with the Licensed Technology, including, without limitation, the
VQG4, EAGLE and WINGSPAN marks.



     “Licensed Technology” means the DNA digital signal processing technologies
for the VQG4, EAGLE platforms and, to the extent used on these platforms, the
Wingspan technologies and (a) all hardware designs, board support software,
manufacturing data, DNA’s portfolio of Wingspan libraries, all related source
code, documentation, any research and development information, unpatented
inventions, know-how, trade secrets, software programs and technical data,
ideas, concepts, uses and applications, and (b) upgrades, improvements,
enhancements, modifications, alterations and derivative works based thereon or
relating to any of the foregoing, provided that such items are used or held for
use by DNA in connection with the VQG4 or EAGLE I platforms, and (c) all
Intellectual Property Rights in any of the foregoing. The term Licensed
Technology shall not include the Licensed Marks, but shall include all
Information and Materials related to the Combined Technology.



     “Marketing Plan” has the meaning set forth in Section 3.1 of this License
Agreement.



     “Net Selling Price” has the meaning set forth in Section 4.2(b)(ii) of
this License Agreement.



     “New Products” has the meaning set forth in Section 6.2(c) of this License
Agreement.



     “Permitted Products” means the following products in the form and with the
features and functionality marketed, sold and distributed by DNA immediately
prior to the Effective Date: (a) VQEXG4, extended temperature VQG4, as more
specifically defined, and the agreed-upon specifications for which, are set
forth on Schedule 1 to this Exhibit A, and (b) VSC750, conduction cooled OEM
product, as more specifically defined, and the agreed-upon specifications for
which, are set forth on Schedule 2 to this Exhibit A; provided, however, that
such features and functionality do not use, in whole or part, the VISTA
Technology or the Combined Technology, including, without limitation, any
Intellectual Property Rights in or



24









 





related to the VISTA Technology or Combined Technology (other than the
Licensed Technology incorporated therein).



     “Person” means an individual, trust, estate, domestic corporation, foreign
corporation, professional corporation, partnership, limited partnership,
limited liability company, foreign limited liability company, unincorporated
association, or another entity.



     “Pre-Existing Materials” has the meaning set forth in Section 5.3(b) of
this License Agreement.



     “Product Premium” has the meaning set forth in Section 4.2(a)(i) of this
License Agreement.



     “Products” means the products incorporating, resulting from and/or
developed based on the Combined Technology.



     “Profits” has the meaning set forth in Section 4.2(b)(i) of this License
Agreement.



     “Promotional Materials” has the meaning set forth in Section 3.2 of this
License Agreement.



     “Rejected Good Faith Order” has the meaning set forth in Section 6.2(c) of
this License Agreement.



     “Restricted Activities” has the meaning set forth in Section 6.2(a)(i) of
this License Agreement.



     “Restricted Persons” has the meaning set forth in Section 6.2(a) of this
License Agreement.



     “Ruggedized” means any applications, processes, practices, products and
methods to strengthen, fortify, reinforce, protect and/or preserve the
integrity of an object and/or the operation and/or use thereof in any manner
from and/or against, and otherwise enable an object to withstand and endure, in
whole or part, any adverse or opposing conditions, environments, situations,
atmospheres, factors and circumstances, including, without limitation
temperature, humidity, air quality, wind resistance, velocity, turbulence,
vibrations, sound, light, moisture, precipitation, extended or infrequent use,
physical or electronic stress, shock, abuse, resistance, interference and/or
impedance.



     “Sales” has the meaning set forth in Section 4.2(a)(ii) of this License
Agreement.



     “Senior Executives” has the meaning set forth in Section 10.2(b) of this
License Agreement.



     “Term” has the meaning set forth in Section 7.1 of this License Agreement.



     “Transfer Agreement” has the meaning set forth in the recitals to this
License Agreement.



     “VISTA” has the meaning set forth in the first paragraph hereof.



     “VISTA Indemnitees” has the meaning set forth in Section 9.1 of this
License Agreement.



     “VISTA Marks” means any of VISTA’s trademarks, service marks, trade names,
copyrights, trade dress, logos, designs and insignias related to the VISTA
Technology, Combined Technology or Products.



     “VISTA Property” has the meaning set forth in Section 5.2 of this License
Agreement.



     “VISTA Residual Rights Fee” has the meaning set forth in Section 4.2(b) of
this License Agreement.



     “VISTA Technology” means VISTA’s proprietary methods, designs, products,
materials, documentation, data, information, inventions, works of authorship,
trade secrets, software, hardware, technical data, ideas, know-how, concepts,
uses, applications and processes for Ruggedization of systems,



25









 





boards or circuit card assemblies or any device incorporating digital
signal processing, including without limitation, so as to enable them to
withstand various types of adverse conditions, including without limitation,
environmental conditions required for military and aerospace applications,
radar, sonar, software radio, electronic warfare, signal intelligence, smart
weapons, unmanned vehicles, avionics and deployed embedded systems for tanks,
unmanned vehicles and naval vessels, and any improvements, enhancements,
modifications, alterations and derivative works thereto, and all Intellectual
Property Rights in any of the foregoing.



26









 








Schedule 1 to Exhibit A




VQEXG4, Extended Temperature VQG4 Specifications




See Attached




VQEXG4
  Level
1, Extended Temperature Version of VQG4 product



	 	 	 
	 Spec
	 	Extended Temp.

	Operating

	 	-20°C to 65°C
	 	 	 
	Temperature

	 	Inlet 4 cfm air flow (6)
	 	 	 
	 	 	 
	Storage Temp.

	 	-40°C to 85°C
	 	 	 
	 	 	 
	Humidity
	 	 
	 
	 	 
	Operating

	 	0 to 100% non-condensing
	 	 	 
	Storage

	 	0 to 100% non-condensing
	 	 	 
	 	 	 
	Vibration
	 	 
	 
	 	 
	Sine (1)

	 	na
	 	 	 
	 	 	 
	Random (4)

	 	na
	 	 	 
	 	 	 
	Shock (5)

	 	na
	 	 	 
	 	 	 
	Conformal Coat

	 	Yes
	 	 	 
	 	 	 







27









 






Schedule 2 to Exhibit A




VSC750, conduction cooled OEM product Specifications




See Attached




28









 













29









 













30









 








Exhibit B




Transfer Agreement




31









 








Exhibit C




Distribution Agreement





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