Exhibit 10.18
Execution
AMENDED AND RESTATED SECURITY
AGREEMENT
This AMENDED AND RESTATED SECURITY
AGREEMENT dated as of November 28, 2008 (this “Security
Agreement”), is made by OVERLAND STORAGE, INC., a California
corporation (“Debtor”), in favor of ADAPTEC, INC., a
Delaware corporation (“Creditor”), with reference to
the following facts:
RECITALS
A. Pursuant to that certain Security
Agreement dated June 27, 2008, made by Debtor in favor of
Creditor (the “Original Security Agreement”), Debtor
granted to Creditor a security interest in certain assets of the
Debtor to secure Debtor’s obligations under the Promissory
Note dated June 27, 2008 executed by Debtor in favor of
Creditor in the original principal amount of One Million Four
Hundred Thirty One Thousand Seven Hundred Eighteen Dollars and
Forty Cents ($1,431,718.40) (as the same may be amended from time
to time, the “Note”).
B. Pursuant to Section 9 of the
Original Security Agreement, Debtor has requested that Creditor
(i) terminate its lien on the collateral described in the
Original Security Agreement (the “Original Collateral”)
and (ii) accept the replacement lien on the collateral
described herein in substitution thereof.
C. Creditor has agreed to amend and
restate the Original Security Agreement in full, terminate its lien
on the Original Collateral and accept the replacement lien on the
collateral described herein, all on the terms set forth
herein.
AGREEMENT
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Debtor and Creditor hereby agree as
follows:
1. DEFINITIONS. As used in this
Security Agreement, the following terms will have the meanings
ascribed to them below:
“Asset Purchase
Agreement” means the Asset Purchase Agreement dated as of
June 27, 2008, made by Debtor, as buyer, and Creditor, as
seller.
“Business” has the
meaning set forth in the Asset Purchase Agreement.
“Copyrights” means
worldwide (i) registered copyrights in published or
unpublished works, mask work rights and similar rights, mask work
registrations, and copyright applications for registration,
including any renewals thereof, and (ii) copyrightable works
and other rights of authorship in published or unpublished
works.
“Creditor” has the
meaning set forth in the first paragraph of this Security
Agreement.
“Debtor” has the meaning
set forth in the first paragraph of this Security
Agreement.
-1-
“Intellectual Property Rights” means
Patents, Trademarks, Copyrights, Owned Rights, Software, and
Proprietary Information, and includes any rights to exclude others
from using or appropriating any Intellectual Property Rights,
including the rights to sue for and remedies against past, present
or future infringements or misappropriations of any or all of the
foregoing and rights of priority and protection of interests
therein, and any other proprietary, intellectual property or other
rights relating to any or all of the foregoing anywhere in the
world.
“Note” has the meaning
set forth in the Recitals of this Security Agreement.
“Open Source Software”
means (A) Software that requires as a condition of use,
modification or distribution that such Software or other Software
incorporated into, derived from or distributed with such Software:
(i) be disclosed or distributed in source code form;
(ii) be licensed to other users for the purpose of making
derivative works; or (iii) be redistributable at no charge;
and (B) Software licensed or distributed under any of the
following licenses or distribution models, or licenses or
distribution models similar to any of the following:
(t) GNU’s General Public License (GPL) or Lesser/Library
GPL (LGPL); (u) the Artistic License (e.g., PERL);
(v) the Mozilla Public License; (w) the Netscape Public
License; (x) the Sun Community Source License (SCSL);
(y) the Sun Industry Source License (SISL); and (z) the
Apache Software License.
“Original Collateral”
has the meaning set forth in the Recitals of this Security
Agreement.
“Original Security
Agreement” has the meaning set forth in the Recitals of this
Security Agreement.
“Owned Rights” means
worldwide (i) Internet domain names; (ii) website
content; (iii) toll-free telephone numbers; in each case
purchased by Debtor from Creditor pursuant to the Asset Purchase
Agreement; and (iv) moral rights and publicity rights; in each
case to the extent the same does not comprise or is not protected
by Copyrights, Patents or Trademarks.
“Patents” means
worldwide patents, patent applications, invention disclosures and
other rights of invention, filed with any Governmental Authority
(as defined in the Asset Purchase Agreement), and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof and all reexamined patents or other
applications or patents claiming the benefit of the filing date of
any of the foregoing.
“Proprietary
Information” means worldwide confidential or proprietary
trade secrets, technical information, inventions and discoveries
(whether or not patentable and whether or not reduced to practice)
and improvements thereto, know-how, processes, developments,
designs, techniques, marketing and purchasing strategies, plans,
schematics, drawings, blue prints, formulae, formulas, patterns,
compilations, databases, specifications, research and development
information, technical data, inventions, concepts, ideas, devices,
methods, processes, and other proprietary or confidential
information, whether business, technical or otherwise, customer and
supplier lists and related information, pricing and cost
information, Product (as defined in the Asset Purchase Agreement)
roadmaps and financial, business and marketing plans.
“Purchased IP” means all
Intellectual Property Rights specified on Exhibit A attached
hereto, and all other Intellectual Property Rights purchased by
Debtor from Creditor pursuant to the Asset Purchase Agreement
related exclusively to the Business, including
-2-
all Software related exclusively to the Business
(and for such Software that was purchased by Debtor from Creditor
pursuant to the Asset Purchase Agreement, including the full source
code with respect thereto and all versions and releases thereof and
all back-up or archival copies in Debtor’s possession), but
notwithstanding the above, excluding (A) non-transferable Open
Source Software and (B) generally available off-the-shelf
microcomputer and work station software.
“Security Agreement” has
the meaning set forth in the first paragraph of this Security
Agreement.
“Software” means any
computer program or other software (irrespective of the type of
hardware for which it is intended), including firmware and other
software embedded in hardware devices, whether in the form of
source code, assembly code, script, interpreted language,
instruction sets or binary or object code (including compiled and
executable programs), including any library, component or module of
any of the foregoing.
“Trademarks” means
worldwide (i) registered trademarks and service marks and
registrations and applications for such registrations,
(ii) unregistered trademarks and service marks, trade names,
fictitious business names, corporate names, trade dress, logos,
Product (as defined in the Asset Purchase Agreement) names and
slogans, including any common law trademark rights; in each case
together with the goodwill associated therewith.
2. THE SECURITY. Debtor hereby
grants to Creditor a security interest in all of the Debtor’s
right, title and interest in, to and under the Purchased IP (such
Purchased IP is hereinafter referred to as the
“Collateral”). For the avoidance of doubt and
notwithstanding any other provision or term herein, the parties
hereto hereby acknowledge and agree that the Collateral shall be
limited to the Purchased IP.
3. THE INDEBTEDNESS. The Collateral
secures and will secure the payment, performance and observance of
all indebtedness, obligations and liabilities of Debtor to Creditor
under the Note. For the purposes of this Security Agreement,
“Indebtedness” means the obligations and liabilities of
Debtor under the Note.
4. TITLE; NO OTHER LIENS. Debtor
represents and warrants to Creditor that (i) Debtor owns the
Collateral to the extent and pursuant to the same exceptions as the
same was sold to the Debtor by the Creditor pursuant to the Asset
Purchase Agreement, and (ii) the Collateral remains free and
clear of any liens, security interests, encumbrances and
restrictions on the transfer thereof, and to the Debtor’s
actual knowledge, claims, except in each case (A) to the
extent the
