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GPR SYSTEM DEVELOPMENT, SALE AND LICENSE AGREEMENT
by and between
Power Spectra, Inc.
and
LandRay Technology, Inc.
dated as of
December 17, 1996
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS......................................................1
Section 1.1 Capitalized Terms..................................1
ARTICLE 2. DELIVERABLES AND DEVELOPMENT.....................................2
Section 2.1 Development........................................2
Section 2.2 Changes............................................2
Section 2.3 Additional Development.............................3
Section 2.4 Project Manager....................................3
Section 2.5 Replacement of Project Managers....................3
Section 2.6 Commercial Manufacture and Use.....................3
ARTICLE 3. ACCEPTANCE PROCEDURE.............................................3
Section 3.1 Acceptance of Versions.............................3
Section 3.2 Acceptance of Other Deliverables...................4
Section 3.3 Access.............................................4
Section 3.4 Periodic Reports...................................4
ARTICLE 4. CONTRACT PRICE...................................................4
Section 4.1 Contract Price.....................................4
Section 4.2 Contract Price Adjustment..........................4
Section 4.3 Form of Payment....................................4
ARTICLE 5. LICENSE, ROYALTIES AND OWNERSHIP RIGHTS..........................4
Section 5.1 GPR Technology License.............................4
Section 5.2 Commercialization..................................5
Section 5.3 Ownership..........................................5
Section 5.4 Use of Third Party Materials.......................6
Section 5.5 Information About Third Party Materials............6
ARTICLE 6. CONFIDENTIALITY..................................................6
Section 6.1 Confidential Information...........................6
Section 6.2 Permitted Use and Disclosures......................7
Section 6.3 Public Disclosure..................................7
ARTICLE 7. TERM AND TERMINATION.............................................7
Section 7.1 Term...............................................7
Section 7.2 Termination for Breach.............................7
Section 7.3 Termination for Insolvency.........................7
Section 7.4 Effect of Breach or Termination....................8
Section 7.5 Survival...........................................8
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TABLE OF CONTENTS
(continued)
ARTICLE 8. PSI NAME AND LOGO................................................8
Section 8.1 PSI Logos..........................................8
Section 8.2 Copyright, etc. Notices............................8
ARTICLE 9. PRODUCT SUPPORT..................................................8
Section 9.1 Post-Development Support...........................8
ARTICLE 10. WARRANTIES AND SUPPORT..........................................9
Section 10.1 Warranties By PSI..................................9
Section 10.2 Warranties By LandRay..............................9
Section 10.3 Product Warranties by PSI.........................10
Section 10.4 No Warranties to Third Parties....................10
ARTICLE 11. LIMITATIONS ON WARRANTIES AND LIABILITY........................10
Section 11.1 Warranty Limitation...............................10
Section 11.2 Liability Limitations.............................10
ARTICLE 12. INDEMNIFICATION................................................11
Section 12.1 Indemnification...................................11
Section 12.2 Conditions on Indemnity...........................11
ARTICLE 13. FUTURE PRODUCTS................................................11
ARTICLE 14. NOTICES........................................................12
ARTICLE 15. MISCELLANEOUS..................................................12
Section 15.1 Independent Contractor............................12
Section 15.2 Taxes.............................................12
Section 15.3 Assignment........................................12
Section 15.4 Force Majeure.....................................12
Section 15.5 Governing Law; Forum Selection....................13
Section 15.6 Integration; Amendment............................13
Section 15.7 Severability......................................13
Section 15.8 Bankruptcy........................................13
Section 15.9 Rights and Remedies...............................13
Section 15.10 Waiver............................................14
Section 15.11 Headings..........................................14
Section 15.12 Counterparts......................................14
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GPR SYSTEM DEVELOPMENT AND LICENSE AGREEMENT
THIS AGREEMENT (this "Agreement") is entered as of this 17th day of
December, 1996 by and between, Power Spectra, Inc., with its offices at 000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("PSI"), and LandRay Technology,
Inc., with its offices at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
("LandRay").
RECITALS
1. PSI owns 38% of the common stock of LandRay, which was formed to
fund and to use ground penetrating radar ("GPR") technology developed by PSI for
certain applications, specifically mining, mineral and petroleum exploration and
exploitation (the "Covered Uses").
2. PSI and LandRay previously entered into an initial agreement for PSI
to demonstrate for LandRay the feasibility of a GPR system for the Covered Uses.
3. PSI and LandRay now desire to enter into a comprehensive
development, sale and license agreement providing for, upon demonstration of
feasibility of the GPR system for the Covered Uses, PSI to deliver to LandRay
certain operational GPR prototype systems for the Covered Uses and LandRay to
pay PSI $3,000,000.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein the parties agree as follows:
AGREEMENT
ARTICLE 1. DEFINITIONS
Section 1.1 Capitalized Terms. The following terms shall have the
following meanings when used in this Agreement:
"Agreement" means this agreement and all exhibits and schedules hereto.
"Confidential Information" shall mean (i) any proprietary or
confidential information or material in tangible form disclosed hereunder that
is marked as "Confidential" at the time it is delivered to the receiving party,
or (ii) proprietary or confidential information disclosed orally hereunder which
is identified as confidential or proprietary when disclosed and such disclosure
of confidential information is confirmed in writing within thirty (30) days by
the disclosing party.
"Delivery Timetable" shall mean the schedule for delivery of the PSI
Deliverables to be delivered by PSI to LandRay as set forth in Exhibit B hereto.
"Contract Price" shall mean the payments being made to PSI by LandRay
as set forth in Article 4 hereto.
"GPR Know-How" shall mean all confidential information and materials,
including without limitation, trade secrets, instructions, processes, formulas,
technology and technical information owned in whole or in part, or controlled by
license, assignment or otherwise by PSI, necessary for LandRay to exercise its
rights under Section 5.1 hereof. GPR Know-How shall also include all copyrights
held or licensed by PSI necessary for LandRay to exercise its rights under
Section 5.1 hereof. GPR Know-How shall not include any inventions included in
GPR Patents.
"GPR Patents" shall mean (i) the patents and patent applications set
forth on Exhibit C hereto and hereby incorporated herein, (ii) any
substitutions, divisions, continuations, continuations-in-part applications of
(i) above, (iii) any patents (and inventors certificates) issuing worldwide on
any of the preceding, including without limitation, reissues, reexaminations, or
extensions or confirmations, registrations, revalidations, or additions, (iv)
any newly issued patents issued to PSI for inventions reasonably related and
necessary for the improvement of the GPR Products or the GPRS and (v) any
copyrights with respect to PSI Deliverables.
"GPR Products" mean (i) the operational prototype GPRS (see "GPRS"
below) referred to in Exhibit B that has all the material functions and
capabilities of a production product as set forth in Exhibit A and (ii) all
improvements thereto and enhancements thereof.
"GPRS" shall mean the prototype Ground-Penetrating Radar System being
developed hereunder.
"GPR Technology" shall mean the GPR Know-How and the GPR Patents.
"PSI Deliverables" means the deliverables or milestones set forth on
Exhibit B to be delivered by PSI to LandRay, or completed by PSI as the case may
be, pursuant to this Agreement.
"Specifications" means the technical specifications for the GPRS set
forth in Exhibit A.
ARTICLE 2. DELIVERABLES AND DEVELOPMENT
Section 2.1 Development. PSI will develop and deliver to LandRay the
PSI Deliverables in accordance with the Specifications set forth in Exhibit A
and the Delivery Timetable set forth in Exhibit B, respectively. Each PSI
Deliverable will, upon delivery or completion, conform in all material respects
to the Specifications set forth for such PSI Deliverables.
Section 2.2 Changes. If LandRay desires a change in the Specifications,
LandRay shall submit a written change order to PSI which includes a full
description of the requested change. PSI will promptly review the change order
to determine the feasibility of the proposed changes. PSI will not be bound to
implement the changes until LandRay has received a copy of the change order
signed by PSI's authorized representative. If a change order issued by LandRay,
or the inaccuracy or incompleteness of
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technical or other information supplied to PSI by LandRay, causes an increase in
the amount of time or materials necessary to deliver any PSI Deliverable, the
parties shall negotiate in good faith to make an equitable adjustment to the
Development Fee payable or the delivery dates for the affected PSI Deliverables.
PSI specifically reserves the right to suspend development work pending the
negotiation of such a change.
Section 2.3 Additional Development. Additional development work may be
periodically brought under this Agreement through the use of separate, written
schedules agreed to and executed by the parties.
Section 2.4 Project Manager. Each party shall designate one of its
employees to be its project manager (the "Project Manager"). Each party's
Project Manager shall have direct responsibility for coordinating the party's
activities under this Agreement and interacting with the other party's Project
Manager. LandRay hereby designates Xxxx Xxxxx as its Project Manager and PSI
hereby designates Xxxxx Xxxxx as its Project Manager. Project Managers of each
party shall meet as needed to review progress and to resolve issues relating to
this Agreement.
Section 2.5 Replacement of Project Managers. Either party may, if good
cause exists therefor, withdraw its approval of the other's Project Manager. If
a party's Project Manager is unable to continue to serve due to physical
disability or termination of employment, or if the other party withdraws its
approval of the Project Manager, the party shall appoint a successor Project
Manager, subject to other's prior written approval, which approval will not be
unreasonably withheld or delayed.
Section 2.6 Commercial Manufacture and Use. Subject to Section 5.1(d)
hereof, PSI shall be solely responsible for the commercial manufacture of the
GPRS referred to in Exhibit B hereto. LandRay shall be solely responsible for
the use and application of the GPRS.
ARTICLE 3. ACCEPTANCE PROCEDURE
Section 3.1 Acceptance of Versions.
(a) Within 15 business days after the delivery to it of each
PSI Deliverable, LandRay shall inform PSI whether such PSI Deliverable meets the
Specifications for such PSI Deliverable. If LandRay reasonably believes that
such PSI Deliverable does not conform to the relevant Specifications, it shall
so inform PSI and provide PSI with details regarding such failure and suggested
remedial action. PSI shall work diligently to remedy any such failure and to
return such PSI Deliverable to LandRay for acceptance.
(b) LandRay's failure to object to any PSI Deliverables within
15 business days of delivery shall be deemed acceptance of such PSI Deliverable.
In addition, LandRay's release of the GPRS for general distribution and
marketing shall be deemed acceptance by LandRay of all PSI Deliverables.
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(c) Failure of the any PSI Deliverable to meet the applicable
Specification after a reasonable number of attempts to remedy the failure under
Section 3.1(a), shall constitute a default by PSI.
Section 3.2 Acceptance of Other Deliverables. The parties shall agree
upon reasonable tests and acceptance criteria for PSI Deliverables to the extent
that such tests and criteria are not included in Exhibit A.
Section 3.3 Access. PSI will provide LandRay with reasonable access to
PSI Deliverables at its facilities for inspection purposes during development.
Section 3.4 Periodic Reports. PSI shall give LandRay periodic (monthly)
reports on progress toward attainment of PSI Deliverables (as shown on Exhibit
B).
ARTICLE 4. CONTRACT PRICE
Section 4.1 Contract Price. LandRay will pay PSI the sum of $3,000,000
(three million dollars) (the "Contract Price") for the development of the work
to be performed hereunder. The Contract Price shall be payable in accordance
with Exhibit D. All payments set forth in Exhibit D shall be due and payable
within 3 business days of the event set forth therein. The Contract Price shall
be allocated with $2,000,000 being paid for the prototype and $1,000,000 being
paid for the license.
Section 4.2 Contract Price Adjustment. LandRay and PSI agree to review
the progress hereunder on a regular basis to assess whether or not PSI's costs
are exceeding the Contract Price. In such event, the Contract Price may be
increased by mutual agreement of the parties.
Section 4.3 Form of Payment. The Contract Price shall be payable in
U.S. dollars and in a manner reasonably agreed by the parties.
ARTICLE 5. LICENSE, ROYALTIES AND OWNERSHIP RIGHTS
Section 5.1 GPR Technology License.
(a) GPR Technology License. PSI hereby grants to LandRay an
exclusive, worldwide, royalty-free, non-transferable license, with the right of
sublicense, under the GPR Patents and the GPR Know-How to use the GPR Products
only for the following applications: mining, mineral and petroleum exploration
and exploitation (the "Licensed Applications"). During the term hereof, PSI
shall not grant any third party any right under the GPR Patents to use the GPR
Products for the Licensed Applications. Nothing in this agreement shall be
construed to:
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(i) grant LandRay any right under the GPR Patents or
GPR Know-How for mine locating, unexploded ordnance locating, toxic waste
locating, surveying power transmission lines, timber cruising or wildlife
control surveying; or
(ii) grant LandRay any right under the GPR Patents or
GPR Know-How other than with respect to the Licensed Applications; or
(iii) prevent the parties from negotiating any other
contract, as appropriate, beyond the limitations of paragraph 5.1(a).
(b) PSI Improvements License. PSI hereby grants to LandRay an
exclusive, worldwide, irrevocable, royalty-free license to use any improvements,
modifications, enhancements and other inventions or technology related to the
GPR Products, GPR Patents, and/or GPR Know-How (the "PSI Improvements"), if any,
developed by PSI during the term hereof.
(c) Additional Uses. The licenses under this Section 5.1 above
may be extended to cover archeological applications if requested by LandRay from
time to time and approved in writing by PSI, which approval shall not be
unreasonably withheld, provided no other relationship has been negotiated prior
to LandRay's request.
(d) License Grant in the Event of Bankruptcy of PSI or
Inability to Deliver PSI Deliverables. In the event (1) of any of the happenings
described in Section 7.3 of this Agreement following which LandRay elects not to
terminate this Agreement or (2) that PSI fails to deliver LandRay the PSI
Deliverables on the timetable set forth in Exhibit B or to deliver any other
deliverable agreed to in writing by the parties (any such failure to deliver
being subject to the 45-day cure period set forth in Section 7.2 of this
Agreement) and LandRay elects not to terminate this Agreement, then the license
granted to LandRay by PSI under Section 5.1(a) and 5.1(b) shall include the
right for LandRay to make or have made the GPR Products for the applications
covered by such license. In such event, PSI shall assist LandRay in all
reasonable respects for LandRay to exercise its rights under this subsection
(d), including delivery of any required technical data to LandRay (which
disclosure shall continue to be covered by Section 6.1 of this Agreement).
Section 5.2 Commercialization. LandRay agrees to use every reasonable
effort to make commercial use of the licenses granted herein to generate
revenue.
Section 5.3 Ownership.
(a) Ownership of PSI Deliverables. Following delivery of the
PSI Deliverables to LandRay and LandRay's full payment of the Contract Price and
other fees set forth in Article 4, LandRay shall take title to, and become the
exclusive owner of, the PSI Deliverables.
(b) Ownership of GPR Technology. Subject to the license
contained in Section 5.1 above, ownership of the GPR Patents, GPR Know-How, and
all intellectual property rights therein,
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including without limitation, copyrights, patents, trademarks, trade secrets,
mask works and other proprietary rights, shall remain exclusively with PSI.
(c) Ownership of PSI Improvements. Subject to the license
granted to LandRay in Section 5.1(d) above, ownership of PSI Improvements and
all intellectual property rights therein, including without limitation,
copyrights, patents, trademarks, trade secrets, mask works and other proprietary
rights, shall remain exclusively with PSI.
Section 5.4 Use of Third Party Materials. PSI shall not incorporate
into the PSI Deliverables any materials owned by third parties unless such
materials and their owners (including the owners of any intellectual property
embodied therein) are identified in writing to LandRay's Project Manager, and
PSI either: (i) has sufficient authority to grant to LandRay the rights and
licenses necessary to exploit the PSI Deliverables as contemplated herein; or
(ii) the owner of such materials has granted directly to LandRay such rights and
licenses. PSI shall have sole responsibility for payment of all royalties and
other charges with respect to such third party materials, including as they may
accrue with respect to subsequent use thereof by LandRay, its affiliates,
customers, successors and assigns.
Section 5.5 Information About Third Party Materials. With respect to
third party materials that are identified in writing to LandRay's Project
Manager, PSI shall, prior to incorporating the same into the PSI Deliverables
either provide to LandRay a copy of any agreements or other instruments from
which PSI derives its authority to grant LandRay the rights contemplated herein,
or shall allow LandRay's counsel to review such agreements or other instruments
on a confidential basis for the purpose of advising LandRay with respect to
PSI's authority to grant LandRay such rights and licenses.
ARTICLE 6. CONFIDENTIALITY
Section 6.1 Confidential Information. Except as expressly provided
herein, the parties agree that, for the term of this Agreement and for five (5)
years thereafter, the receiving party shall keep completely confidential and
shall not publish or otherwise disclose and shall not use for any purpose except
for the purposes contemplated by this Agreement any Confidential Information
furnished to it by the disclosing party hereto pursuant to this Agreement,
except that to the extent that it can be established by the receiving party by
competent proof that such Confidential Information:
(a) was already known to the receiving party, other than under
an obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(c) became generally available to the public or otherwise part
of the public domain after its disclosure and other than through any act or
omission of the receiving party in breach of this Agreement;
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(d) was independently developed by the receiving party as
demonstrated by documented evidence prepared contemporaneously with such
independent development; or
(e) was subsequently lawfully disclosed to the receiving party
by a person other than a party.
Section 6.2 Permitted Use and Disclosures. Each party hereto may use or
disclose information disclosed to it by the other party to the extent such use
or disclosure is reasonably necessary in filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental regulations or otherwise submitting information to tax or other
governmental authorities, or otherwise exercising its rights hereunder, provided
that if a party is required to make any such disclosure of another party's
Confidential Information, other than pursuant to a confidentiality agreement, it
will give reasonable advance notice to the latter party of such disclosure and,
except to the extent inappropriate in the case of patent applications, will use
its best efforts to secure confidential treatment of such information prior to
its disclosure (whether through protective orders or otherwise).
Section 6.3 Public Disclosure. Except as otherwise required by law,
neither party shall issue a press release or make any other public disclosure of
the terms of this Agreement without the prior approval of such press release or
public disclosure, which shall not be unreasonably withheld. Each party shall
submit any such press release or public disclosure to the other party a
reasonable time prior to dissemination and the receiving party shall have a
reasonable opportunity to review and comment on such release or disclosure.
ARTICLE 7. TERM AND TERMINATION
Section 7.1 Term. The term of this Agreement shall commence on the date
on which LandRay obtains funding sufficient to provide the payments as shown in
Exhibit D hereto and shall continue for five (5) years (the "Initial Period")
from the date LandRay accepts the operational prototype of the GPR Products.
Upon the expiration of the Initial Period, this Agreement shall be automatically
renewed for successive periods of one (1) year (each a "Renewal Period") unless
earlier terminated as authorized in this Section 7.
Section 7.2 Termination for Breach. If either party defaults in the
performance of its material obligations hereunder and if any such default is not
corrected within forty-five (45) days after it shall have been called to the
attention of the defaulting party, in writing, by the other party, then the
other party, at its option, may, in addition to any other remedies it may have,
thereupon terminate this Agreement by giving written notice of termination to
the other party.
Section 7.3 Termination for Insolvency. If voluntary or involuntary
proceedings by or against a party are instituted in bankruptcy under any
insolvency law, or a receiver or custodian is appointed for such party, or
proceedings are instituted by or against such party for corporate reorganization
or the dissolution of such party, which proceedings, if involuntary, shall not
have been dismissed within sixty (60) days after the date of filing, or if such
party makes an assignment for the benefit of creditors, or
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substantially all of the assets of such party are seized or attached and not
released within sixty (60) days thereafter, the other party may immediately
terminate this Agreement effective upon notice of such termination.
Section 7.4 Effect of Breach or Termination.
(a) Accrued Obligations. Termination of this Agreement for any
reason shall not release any party hereto from any liability which, at the time
of such termination, has already accrued to the other party or which is
attributable to a period prior to such termination nor preclude either party
from pursuing all rights and remedies it may have hereunder or at law or in
equity with respect to any breach of this Agreement.
(b) Return of Materials. Upon any termination of this
Agreement, LandRay and PSI shall promptly return to the other party all
Confidential Information received from the other party.
(c) Reversion of Licenses. Upon any termination of this
Agreement, all licenses granted hereunder (including any sublicenses granted by
a party hereto) shall terminate and revert back to the owner, except as provided
in Section 7.6 below.
Section 7.5 Survival. Section 5.3 (Ownership), Article 6
(Confidentiality), Article 11 (Limitations on Warranties and Liability), Article
12 (Indemnification) and Article 15 (Miscellaneous) shall survive the expiration
or termination of this Agreement for any reason.
ARTICLE 8. PSI NAME AND LOGO
Section 8.1 PSI Logos. LandRay shall include the PSI name and logo, in
a manner to be reasonably agreed between the parties: (i) in product
documentation included with the GPR Products; (ii) in advertising and
promotional materials associated with the GPR Products; and (iii) on the housing
of the GPR Products.
Section 8.2 Copyright, etc. Notices. LandRay shall not remove or
obscure any notices or markings, including without limitation, copyright,
trademark, or confidentiality notices, or ownership notices on any of the PSI
Deliverables.
ARTICLE 9. PRODUCT SUPPORT
Section 9.1 Post-Development Support.
(a) PSI shall provide reasonable support and assistance to
maintain the GPR Products to the extent and for fees as shall be determined
mutually by the parties and as shall be specified in a writing attached to this
Agreement.
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(b) In addition, PSI agrees to provide an annual calibration
and system checkout of the GPR Products. LandRay shall pay PSI a fee for such
services which shall be PSI's cost of labor and materials to provide such
services plus 10% of such amount.
ARTICLE 10. WARRANTIES AND SUPPORT
Section 10.1 Warranties By PSI. PSI represents and warrants to LandRay
that:
(a) PSI is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California;
(b) PSI has full power and authority to execute, deliver and
perform this Agreement;
(c) This Agreement has been duly authorized, executed and
delivered by PSI and is the legal, valid and binding obligation of PSI in
accordance with its terms;
(d) There is and will be no lien, claim or encumbrance on, and
there will be no such lien, claim or encumbrance on the PSI Deliverables;
(e) The development of the PSI Deliverables by PSI shall not
be performed in breach of any obligation of PSI to a third party or in violation
of any applicable law, rule or regulation;
(f) PSI shall have obtained all permits necessary to comply
with such laws, rules and regulations applicable to its performance;
(g) To the best of PSI's knowledge, the PSI Deliverables
provided by PSI to LandRay hereunder do not and will not infringe the copyrights
or trade secret rights or patent rights of any third party. The foregoing
warranty does not extend to any PSI deliverable to the extent that is the result
of specifications or requirements of LandRay or where the specifications
provided by PSI to LandRay are not followed if LandRay is manufacturing the GPR
Products pursuant to Section 5.1(d) hereof.
Section 10.2 Warranties By LandRay. LandRay represents and warrants to
PSI that:
(a) LandRay is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) LandRay has full power and authority to execute, deliver
and perform this Agreement;
(c) This Agreement has been duly authorized, executed and
delivered by LandRay and is the legal, valid and binding obligation of LandRay
in accordance with its terms;
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Section 10.3 Product Warranties by PSI.
(a) PSI warrants to LandRay that, for a period of ninety (90)
days from the date of delivery by PSI, the PSI Deliverables will be free of
material defects and will materially conform to Specifications. Such warranty
shall not apply if any of the PSI Deliverables are damaged through improper use
or LandRay's fault or negligence or if LandRay is manufacturing the GPR Products
pursuant to Section 5.1(d) hereof.
(b) LandRay's sole and exclusive remedy for any breach of the
foregoing warranty by PSI is to have PSI replace the defective PSI Deliverable
at no cost to LandRay.
Section 10.4 No Warranties to Third Parties. PSI shall not be
responsible for any claim by, or warranty to, any sublicensee or user of the GPR
Products from LandRay or any third party, based on or alleging that there is a
defect in the GPR Products, and LandRay hereby agrees to indemnify and hold
harmless PSI against all cost damages and expenses that may arise out of such
claim. PSI shall not be responsible for any warranty made by LandRay to any
third party, including sublicensees or users of the GPR Products.
ARTICLE 11. LIMITATIONS ON WARRANTIES AND LIABILITY
Section 11.1 Warranty Limitation.
(a) EXCEPT AS SET FORTH EXPRESSLY IN THIS AGREEMENT, THE PSI
DELIVERABLES ARE PROVIDED TO LANDRAY ON AN "AS IS" BASIS.
(b) EXCEPT AS SET FORTH EXPRESSLY IN THIS AGREEMENT, EACH
PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR PURPOSE,
SATISFACTORY QUALITY, PRODUCT LIABILITY AND THEIR EQUIVALENTS UNDER THE LAWS OF
ANY JURISDICTION.
Section 11.2 Liability Limitations.
(a) IN NO EVENT SHALL PSI'S LIABILITY OR OBLIGATIONS TO
LANDRAY UNDER THIS AGREEMENT, INCLUDING UNDER SECTION 10.3 AND ARTICLE 12,
EXCEED THE CONTRACT PRICES ACTUALLY RECEIVED BY PSI FROM LANDRAY.
(b) IN NO EVENT, INCLUDING, WITHOUT LIMITATION, PURSUANT TO
ARTICLE 12, SHALL EITHER LANDRAY OR PSI BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUE, DATA OR USE,
INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
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ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE 12. INDEMNIFICATION
Section 12.1 Indemnification. Each party shall indemnify, defend and
hold the other and its affiliates, and their respective officers, directors,
employees, shareholders, agents, successors, representatives, and permitted
assigns, customers, and sublicensees harmless against any and all claims
relating to any breach or claimed breach of any representation or warranty
contained herein. The parties acknowledge and agree that the representations,
warranties and indemnities set forth herein, shall extend to the foregoing
parties, and the indemnifying party shall be liable to the same extent as if
such representations, warranties and indemnities were made by the indemnifying
party directly to such parties. In addition, LandRay agrees to indemnify, hold
harmless and defend (with counsel free of any conflict of interest between such
counsel and PSI or any other indemnitee hereunder) PSI and its directors,
officers, employees, agents and subsidiaries from and against any and all
claims, allegations, proceedings, losses, liabilities, costs and expenses
(including reasonable attorneys' fees) arising out of or in connection with the
use or (if LandRay is manufacturing the GPR Products pursuant to Section 5.1(d)
hereof) the manufacture of GPR Products thereof (other than as a result of a
breach of a warranty made by PSI hereunder).
Section 12.2 Conditions on Indemnity. Each party shall indemnify the
other parties as set forth in this Article 12 provided that: (i) the indemnified
party notifies the indemnifying party promptly in writing of the claim; (ii) the
indemnifying party has sole control of the defense and all related settlement
negotiations with respect to the claim; provided, that the indemnified party has
the right, but not the obligation, to participate in the defense of any such
claim through counsel of its own choosing; and (iii) the indemnified party
cooperates fully to the extent necessary, and executes all documents necessary
for the defense of such claim.
ARTICLE 13. FUTURE PRODUCTS
This Agreement governs the rights of the parties with respect to the
delivery of the GPR Products only. However, because PSI may continue to develop
improvements to and upgrades of the GPR Products, PSI shall offer the same to
LandRay for purchase. In addition, PSI shall accept all of LandRay's purchase
orders to purchase additional GPR Products for delivery as soon as reasonably
possible as long as such purchase orders are in PSI's standard terms. The
parties presently contemplate that the current GPR Products and the upgraded
versions of those GPR Products shall cost approximately [*] (in the case of the
Seeker) and [*] (in the case of the Imager). However, the parties agree that the
actual cost of future GPR Products shall be determined by the parties prior to
the time of delivery and shall reflect both PSI's actual direct costs of such
GPR Products and a reasonable profit margin. Any maintenance or support
obligations with respect to shall be determined by agreement between the parties
and not by Article 9 hereof.
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* Confidential treatment has been requested as to portions of this agreement.
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ARTICLE 14. NOTICES
All notices, consents and approvals given under this Agreement shall be
in writing and shall be delivered in person, by first class or express mail or
facsimile addressed as follows:
If to PSI: If to LandRay:
---------- --------------
Power Spectra, Inc. LandRay Technology, Inc.
000 Xxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxxxx, XX 00000
Attn.: Xx. Xxxxxx X. Xxxxx Attn.: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Either party may change its address or addressee for the purposes of this
Article 14 by notice. Notice given in accordance with this Article 14 shall be
deemed given when received.
ARTICLE 15. MISCELLANEOUS
Section 15.1 Independent Contractor. PSI is an independent contractor
for all purposes in the performance of this Agreement, including any continuing
support or maintenance obligations. PSI warrants to LandRay that it will fulfill
all of its legal obligations for payroll taxes, worker's compensation insurance
and other employer obligations, and will hold LandRay harmless from any failure
to do so. Neither party shall have any authority to enter into agreements of any
kind on behalf of the other, and neither party shall have any other power or
authority to bind or obligate the other in any manner to any third party.
Section 15.2 Taxes. LandRay will be responsible for payment of any
sales, excise, or use taxes, including any interest and penalties, imposed by
any governmental authority upon use or sale by LandRay of the GPR Products or
any other products of LandRay, the products developed hereunder, or on this
Agreement.
Section 15.3 Assignment. This Agreement may not be assigned by either
party, including to a parent, subsidiary or successor in interest to its
business, without the express, written consent of the other party which consent
shall not unreasonably be withheld or delayed. Any potential assignee must be
able to fulfill all obligations of the assignor. This Agreement shall be binding
upon, and inure to the benefit of, the parties and their permitted respective
successors and permitted assigns.
Section 15.4 Force Majeure. If by reason of labor dispute, strikes,
inability to obtain labor or materials, fire or other action of the elements,
accidents, governmental restrictions or appropriation or other causes, whether
like or unlike the foregoing, beyond the control of a party hereto, such party
is unable to perform in whole or in part its obligations set forth in this
Agreement, then such party shall be relieved of those obligations to the extent
it is so unable to perform and such inability to perform, so
-12-
caused, shall not make such party liable to the other party. The party subject
to an event of force majeure shall use good faith efforts to comply as closely
as possible with the provisions of this Agreement and to avoid the effects of
such event to the extent possible.
Section 15.5 Governing Law; Forum Selection. This Agreement shall be
governed by the laws of the State of California, U.S.A., without regard to that
state's laws concerning conflicts or choice of laws. The 1980 United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement. The parties hereby consent and submit to the exclusive
jurisdiction of the state and federal courts located in Santa Xxxxx County,
California with respect to any disputes arising under or in connection with this
Agreement. Each Party hereby waives any right that it might otherwise have to
object to such venue or seek dismissal of the action on the basis of forum non
conveniens. In the event of litigation under this Agreement, the prevailing
party shall be reimbursed for reasonable legal costs and expenses.
Section 15.6 Integration; Amendment. This Agreement and any exhibits
and writings attached hereto or contemplated hereby constitute the entire
understanding of the parties with respect to the subject matter hereof and
replaces, supersedes and cancels all prior representations, assurances, courses
of dealing, agreements and undertakings, whether written or oral, between them
concerning such subject matter. This Agreement may not be modified except by a
writing signed by authorized representatives of both LandRay and PSI.
Section 15.7 Severability. If any provision of this Agreement or
portion thereof is held to be unenforceable or invalid by any court of competent
jurisdiction, such provision or portion shall be deemed amended to conform to
applicable law so as to be valid and enforceable or, if the provision or portion
cannot be so amended without materially altering the parties' intent, the
provision or portion thereof shall be stricken, and the validity and
enforceability of the remainder of this Agreement shall not be affected thereby.
Section 15.8 Bankruptcy. PSI agrees that if PSI as a
debtor-in-possession or if a trustee in bankruptcy rejects this Agreement,
LandRay may elect to retain its rights under this Agreement as provided under
Section 365(n) of the Bankruptcy Code (or any successor thereto). Upon written
request of LandRay to PSI or the trustee in bankruptcy, PSI or such trustee
shall allow LandRay to exercise its rights under this Agreement (including its
rights under Section 5.1(d) hereof) and shall not interfere with the rights of
LandRay as provided in this Agreement. PSI further agrees that LandRay shall
maintain exclusive rights to GPR Technology under the terms of this Agreement,
even if PSI should cease operations, be purchased or merge.
Section 15.9 Rights and Remedies. The various rights, options,
elections, powers and remedies of a party to this Agreement shall be construed
as cumulative, and no one of them exclusive of any others or of any other legal
or equitable remedy which such party might otherwise have in the event of breach
or default with respect to the terms hereof (except to the extent a remedy in
this Agreement is expressly made an exclusive remedy). The exercise of one right
or remedy by a party or parties shall not impair its right to any other right or
remedy.
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Section 15.10 Waiver. No waiver by either party of any breach,
provision or default by the other shall be deemed a waiver of any other breach,
provision or default.
Section 15.11 Headings. Headings contained in this Agreement are for
ease of reference only and shall have no legal effect.
Section 15.12 Counterparts. This Agreement may be executed in
counterparts, both of which, taken together, shall constitute one single
agreement between the parties.
WHEREFORE, the parties have signed this Agreement on the date first
written above.
POWER SPECTRA, INC. LANDRAY TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ M. W. Rhode
--------------------------- ----------------------
Name: Xxxxxx X. Xxxxx Name: M. W. Rhode
--------------------------- ----------------------
Title: Chairman and CEO Title: President & CEO
--------------------------- ----------------------
Dec. 17, 1996
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EXHIBIT A
TECHNICAL SPECIFICATIONS
Exhibit A 12/5/96
Performance Specification
With Preliminary Equipment Descriptions
"Seeker" and "Imager" Ground-Penetrating Radar Systems
1.0 Introduction and Purpose
This document describes requirements for two, related electronic units. The
simpler unit is the "Seeker," a hand-held ground-penetrating radar (GPR) that
produces a narrow probe beam using synthetic-aperture techniques. The second,
the "Imager," operates similarly to the Seeker, but gathers radar data from a
number of measurement positions to synthesize a three-dimensional radar image of
the area being surveyed.
The intended use of the Seeker and Imager is to find and precisely locate
high-grade metallic ore body deposits within the walls of mine tunnels. The
principle of operation is the relatively high reflection of electromagnetic
radiation from electrical conductors. The specified radar shall nominally be of
the ultra-wideband impulse type.
2.0 Seeker Radar Performance Requirements
[*] This target is referred to herein as the "Standard Wire Target," or SWT.
2.1 Detection Range. The SWT shall be detectable at a range of at least 6 m
(20 ft) with a signal-to-clutter ratio of at least +3 dB. This may be
demonstrated by a detection range in air of at least 30 m with a
signal-to-noise ratio of at least +3 dB, regardless of SWT orientation.
2.2 Synthesized Beamwidth. The processed beamwidth of the radar shall be less
than 3 degrees (3-dB points). This beam shall be coincident with the
mechanical axis of the Seeker within +/- 1 degree. Side and back lobes
shall be at least 15 dB down from the main beam.
2.3 Range Resolution. The range (axial) resolution of the radar shall be 10 cm
(4 in) or better in quartz. This may be demonstrated in air with 19 cm
(7.5 in) or better resolution performance.
2.4 Articulation Method. Antenna articulation shall be automated, as initiated
by the operator depressing a "Capture" button on the unit.
2.5 Scanning Time. A complete reading shall be captured in 2 sec or less.
2.6 Pointing Requirements. In order to achieve specified performance, the
operator shall maintain the position of the Seeker to within 1 cm,
relative to the radiating aperture of the radar, and the Seeker boresight
axis within +/- 1 deg of the intended viewing direction during the
scanning
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PROPRIETARY
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capture time.
2.7 Standoff Capability. The Seeker shall operate within specifications with
the radiating aperture face at any standoff distance from the air-soil
interface (tunnel wall) between 0 and 15 cm (6 in).
2.8 Dynamic Range. The radar dynamic range shall be at least 60 dB.
2.9 Polarization. The baseline polarization format shall be V-V. Cross
polarization shall be considered, evaluated and adopted if a significant
performance advantage. The merits of a switchable polarization capability
shall also be assessed.
3.0 Data Handling and Display
3.1 Data Display. Processed radar data shall be displayed in "A-scan" format
(amplitude vs. range) on an LCD or similar flat-panel display integral
with the unit. A stacking mode, in which at least five consecutive scans
can be simultaneously displayed, shall be implemented. The display shall
be easily viewable under a variety of conditions, from full sunlight (with
glare shield, if required) to total darkness.
3.2 Aural Indicator. An aural indication of targets shall be provided. The
nature of this indication is beyond the scope of this document and left to
the imagination of the designer. One suggestion is to format the data so
that frequency represents range and audio strength signal strength.
Another is that range is represented by a time-phased audio sequence
following a "ping" or other distinctive aural indicator. In this case,
frequency could represent signal strength.
3.3 Data Records. The Seeker shall automatically store up to 10 capture
records for later "instant replay" recall using simple, front-panel
commands. The complete data history of the unit shall available for
archive on a standard personal computer over an RS-232 data link.
4.0 General Operational Considerations and Requirements
4.1 Operator Requirements. The Seeker shall be operable by a single person
working in a confined environment.
4.2 Viewing Direction. The Seeker shall be designed to accommodate any viewing
direction.
4.3 Carrying and Transport. The design shall facilitate easy carrying and
transportation without a carrying case in a dirty, wet environment. In
general, extreme ruggedness with light weight are required.
4.4 Protective Covers. The Seeker shall include a waterproof, protective
dielectric window at the radiating aperture. An easily removable,
water-resistant cover shall also be provided to protect the Seeker display
and controls when not in operation.
PROPRIETARY
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4.5 Surface Treatments and Finishes. Surfaces and finishes shall be selected
for durability and corrosion resistance. Ease of cleaning and general
equipment maintainability in the underground mining environment shall be
strongly considered in the packaging design.
5.0 Mechanical
5.1 Size. The Seeker shall be no more than 91 cm (36 in) long, 40 cm (16 in)
wide, and 40 cm (16 in) high, including integral display. This is
exclusive of an optional, auxiliary battery pack as described in 5.3,
below.
5.2 Weight. The Seeker shall weigh no more than 10 kg (22 lbs), exclusive of
an optional, auxiliary battery pack as described in 5.3, below.
5.3 Auxiliary Battery Pack. A separate battery pack is permissible, if it
results in significant increase of utility. Such a unit shall be fitted
into a carrying harness for portability. Weight shall not exceed 7 kg (15
lbs). The power cable between the battery pack and the Seeker shall be
easily disconnected. With the battery pack disconnected, the Seeker shall
maintain its memory and operating configuration automatically in a
nonoperating, standby state for a period of at least two hours.
6.0 Electrical
6.1 Power Source. The Seeker shall be capable of operating from internal
batteries (see Section 5.3) or from an external power source of between 10
and 30 Vdc.
6.2 Operating Time. The Seeker shall be capable of operating within the
requirements of this specification without battery recharge for a period
of at least four hours, assuming an average of one capture sequence per
minute over that time period.
7.0 Environmental
7.1 Operating Temperature Range. The Seeker shall be capable of operating
within the requirements of this specification over an ambient temperature
range of -10 to +50 deg C.
7.2 Storage Temperature Range. The Seeker shall be capable of storage, for an
indefinite period of time, without damage, over a temperature range of -40
to +60 deg C.
7.3 Humidity. The Seeker shall be capable of operating without performance
degradation over a relative humidity range of 0 to 100 percent, including
condensation.
7.4 Immersion. The Seeker need not be capable of operating in or surviving
immersion in water, except as follows: The Seeker shall tolerate without
damage (other than cosmetic) being placed in standing water up to 8 cm (3
in) deep with the radiating aperture pointed downwards. The Seeker shall
be capable of taking radar data under this condition, although performance
is not
PROPRIETARY
-A3-
specified due to the unanalyzed effects of the high-dielectric-constant
water layer.
7.5 Shock. The Seeker shall survive, while operating and in any orientation, a
free-fall of up to 1 m (3.3 ft) onto a flat concrete surface. Cosmetic
damage is allowed.
7.6 Vibration. The Seeker shall survive (nonoperating) without damage
vibration levels associated with ground and commercial airborne transport,
including ground transportation over unpaved roadways. A suitable carrying
and/or packing case may be provided to ensure this capability.
7.7 Altitude. The Seeker shall operate within the requirements of this
specification over an altitude range of -1500 m (-5000 ft) to +3000 m
(10,000 ft) MSL. Note: The high negative altitude requirement reflects
operation in deep mine shafts.
7.8 Dust and Dirt. The Seeker shall be capable of operation and storage in a
dirty environment typical of underground mining conditions.
8.0 Electromagnetic Compatibility
In order to maximize impulse radar performance, no constraints on
electromagnetic radiation are imposed. The designer, however, is encouraged to
provide a Seeker that minimizes impact on other equipment such as radios and
televisions, without compromising performance. A pseudo-random pulse repetition
rate (PRF) is suggested, for example.
9.0 Safety
The Seeker shall expose the operator to voltages no greater than 50 V. All sharp
edges shall be covered with cushioning or other treatment that will preclude
operator injury during handling and transportation. If batteries with explosive
potential are used, they shall be packaged with a containment barrier. Batteries
shall be selected that do not vent hydrogen or other flammable gas. The Seeker
shall not emit x-rays.
10.0 Reliability
The Seeker shall be capable of operating within the requirements of this
specification with a mean time between failures (MTBF) of at least 200 hours.
Scheduled, preventative maintenance every 200 hours or longer is allowable.
11.0 Imager Unit
11.1 General. The Imager is an extension of the Seeker concept. Basically, it
is a Seeker with the addition of two elements:
[] [*] that determines the attitude and position of the Seeker relative to a
starting position.
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PROPRIETARY
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[] An external data-processing computer (with display) to provide
extracted image information.
In operation, the Imager provides a 3-D image of a volume of earth. Image
data is gathered by taking multiple capture shots at multiple positions
over an area roughly the height and width of the desired depth of the
image. Most operational parameters such as the pattern of positioning,
number of shots at each position, and required survey area, remain to be
specified.
11.2 [*]. An [*] shall be incorporated into the provide Imager. It shall
provide [*] axes of attitude information, relative to a manually keyed
starting position, accurate to [*] over a period of [*] provided that the
Imager is moved no farther than [*] from its starting position during this
time. Similarly, the [*] shall provide [*] axes of position information
under these conditions with an accuracy of [*].
11.3 Imaging Computer. A computer shall be included in the Imager system. This
computer shall be separate from the Seeker head and connected to it by a
cable. Nominally, a commercially available, standard "laptop" computer
shall be used.
11.4 Performance. Performance shall be based on the Seeker performance
characteristics as defined in Section 2.0. Image quality and utility,
traded off against number of data-gathering positions, shall be determined
during the development cycle of the Imager.
11.5 Data Handling and Display. These parameters are left to the designer using
a standard computer format. The Seeker data handling and display
parameters (Section 3.0) shall be retained in the Imager, with the
addition of a disable function if trials determine that the Seeker display
format interferes with utility in the Imager mode.
A wireless (radio or infrared) data link between the Imager head (upgraded
Seeker) and the associated computer shall be strongly considered and
implemented if developed commercial modules can fulfill this function.
11.6 General Operating Considerations. The requirements of Section 4.0 apply to
the Imager head (upgraded Seeker), except that up to two persons may be
required to operate the system (exception to 4.1). Sections 4.3 through
4.5 are goals for the associated computer. The Imager shall be capable of
operation as a Seeker, fully meeting the requirements of sections 2.0
through 10.0, inclusive.
11.7 Mechanical. All requirements of Section 5.0 apply to the Imager head
(upgraded Seeker), with the exception that the weight (Para. 5.2)
allowance is increased to 11 kg (24 lbs). No weight or size requirements
are imposed on the associated computer, other than the generalities of
Section 4.0. A ruggedized laptop is expected to prove adequate for this
application.
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PROPRIETARY
-A5-
11.8 Electrical. All requirements of Section 6.0 apply to the Imager, including
the associated computer.
11.9 Environmental. All requirements of 7.0 apply to the Imager head (upgraded
Seeker). Environmental requirements for the associated computer and
display are to be determined, depending on the performance characteristics
of available commercial hardware.
11.10 Electromagnetic Compatibility. The requirements (or lack thereof) of
Section 8.0 apply to the Imager, with the addition that the Imager head
and computer must be mutually compatible in terms of electromagnetic
emissions and susceptibilities.
11.11 Safety. The requirements of Section 9.0 apply to the Imager.
11.12 Reliability. The requirements of Section 10.0 apply to the Imager.
PROPRIETARY
-A6-
EXHIBIT B
PSI DELIVERABLES
Exhibit B 12/5//96
Program Plan
LandRay Phase 3
1.0 Overview
The main purpose of the LandRay Program, as defined in phases 1 and 2, is to
provide equipment for the detection and identification of mineral ore deposits.
The baseline scenario of operation is handheld instrumentation operated in mine
tunnels. The baseline mineral sought is gold. A secondary goal of the Program is
to conduct a feasibility study and proof-of-principle experiments regarding
borehole tomography. The method of remote sensing in all cases is
ground-penetrating radar using synthetic-aperture techniques.
The Program is divided into three elements. Elements 1 and 2 are concerned with
two tunnel-based portable sensors, herein dubbed the "Seeker" and "Imager."
Element 3 is the borehole work, which will follow the first two elements on a
noninterference basis. The bulk of the Program concerns elements 1 and 2.
Although there is little hardware commonality between the first two elements and
the last, it is expected that software developments from the first two elements
will have a significant, favorable impact on the performance of Element 3.
The Seeker is the core instrument of the baseline (elements 1 and 2) program. It
is an ultra-high bandwidth, impulse radar operating in the microwave regime. The
Seeker contains all elements of a complete radar system--transmitter, receiver,
antennas, signal processing and display--in a handheld unit that can be operated
and transported in typical ore mine conditions. [*]. Depending on conditions
within the mine wall, useful information at penetration depths exceeding 4 m may
be obtained.
Element 1 realizes a small quantity of prototype Seekers ultimately useful for
pilot revenue-gathering work in ore mines worldwide. The full potential of the
Seeker concept will not be quantified until representative field trials are run.
By taking multiple "snapshots" into the mine wall, with the Seeker placed at
different, controlled positions for each shot, synthetic-aperture data may be
gathered suitable for reduction into full, 3-D images. Such capability is
expected to greatly enhance the utility of the Seeker concept and realization of
such imaging is the purpose of Element 2. In order to make the imaging Seeker
("Imager") practicable in the difficult tunnel environment, the basic Seeker
will be [*] that will autonomously communicate to the Seeker's signal processing
the relative position of the Seeker for each shot of an image-gathering data
suite.
Integral with elements 1 and 2 is an ongoing phenomenology support program,
initiated in Phase 2, that emphasizes the use of nondeliverable developmental
hardware for data gathering. The Xxxxxx Radar Test Bed (GRTB) was of enormous
value in Phase 2 in establishing a solid technical baseline regarding radar
performance and optimization in an easily accessible and relatively ideal
environment. This system is designed to take wide-area radar data from a
horizontally-oriented
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PROPRIETARY
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test area such as a sandpit. The availability of a sophisticated test sandpit at
the Venture 4 Mining facility, less than three hours' drive from PSI, has
greatly increased the value of this methodology.
A second development tool, which, at this writing, has been designed but not
fabricated, is the Scissors Radar Test Bed (SRTB). This is an extension of the
GRTB, on a smaller scale, and with vertical scanning, suitable for field trials
in mine tunnels. This unit represents a "development friendly" step between the
GRTB and Seeker and Imager concepts.
Element 3 is the investigative borehole work. Single borehole and
borehole-borehole measurements will be made using impulse radar. The purpose of
the investigation is to quantify the utility of selected radar concepts in this
application. The minimum goal is to reduce the number of boreholes required to
accurately map ore bodies. The initial part of Element 3 will include the
generation of a Test Plan to quantify the work to be done.
An overview of the proposed program is given in the flowcharts of figures 1.0-1
and 1.0-2.
2.0 Management Plan
The Program will be led by a full-time Program Manager, who will also make
significant technical contributions to the effort. As Program Manager, this
individual shall be responsible for overall program planning, critical
decisions, and day-to-day running and monitoring of the Program. Mr. Xxxxxxx
Xxxxx, Program Manager on Phase 2, will continue as Program Manager on Phase 3.
The Program Manager will be assisted by a Project Engineer, who will take the
technical lead on the Program. Xx. Xxxxxxxxx Xxxxxxx of Cyberdynamics, Inc. will
fill this roll on an interim basis, until PSI hires a full-time Radar Systems
Engineer. Part-time administrative assistance will also be provided the Program
Manager. Two major subcontracts are planned. The first is to Cyberdynamics,
Inc., which was instrumental in the successful Phase 2 development. The second
is to Pacific Consultants, Inc., which will be responsible for mechanical and
electronic packaging.
3.0 Deliverables
3.1 Hardware
Quantity 2 Seeker Units, with all necessary ancillary hardware and cables
for operation in a mine tunnel environment
Quantity 1 Imager Unit, incorporating the prototype basic Seeker Unit
3.2 Documentation
Operating Manual for basic Seeker Unit
Final Test Report for basic Seeker Unit
PROPRIETARY
-B2-
Seeker/Imager Development
Elements 1 & 2
Figure 1.0-1
Flow chart illustrates the inter-relationship of the proposed GPR System.
-B3-
Borehole Tomography Evaluation
Element 3
Figure 1.0-2
Flow chart illustrates the test evaluation procedures.
-B4-
Preliminary Operating Manual for Imager Unit
Final Test Report for Imager Unit
Final Report on borehole radar tomography experiments
Monthly Reports throughout Program duration covering programmatics and
technical highlights
4.0 Work Plan Summary
An outline of the preliminary Work Breakdown Structure is provided in Attachment
1. Estimated pricing is are included in summary form, as well.
4.1 Basic Seeker Unit Development
This task evolves the basic concepts explored in Phase 2 into operable,
fieldable units with the goal of using them for ore body exploration on a pilot
basis. The first major task is Radar Systems Engineering, under which the
requirements for the basic Seeker Unit are defined. This process will involve
additional hardware testing (in excess of those done under Phase 2), using the
Gantry Radar Test Bed (GTRB). Performance analyses and predictions will be
conducted. Documentation will include performance and equipment specifications
and test plans for hardware checkout. Cyberdynamics Inc. will be a major
subcontractor to this task.
Once the basic Seeker Unit is defined, a Hardware Design phase will commence.
Elements include transmitter, receiver, antennas, computational hardware,
display, controls, and power conditioning. An overall package design will be
carried out. In a parallel effort, the system Software will be defined and
written. Special Test Equipment will also be defined and generated in support of
this task.
A First Article Prototype will then be built and checked out. Once the unit is
tested in the laboratory, sandbox trials will be run. Finally, full-scale field
trials will be conducted at selected sites to assess general performance in the
field and the unit's ability to detect ore bodies. An iteration phase is
planned, where the unit will undergo upgrades before returning for verification
assessment in the field. A Final Report will document the performance, perceived
utility and recommendations arising from the experience with the prototype.
Once the first article is complete, two Follow-on Units will be built and
checked out. These will then be available for extended field work, preferably of
a revenue-gathering nature, outside the scope of LandRay Phase 2.
4.2 Imaging Prototype
The development process for the Imaging Seeker Unit (Imager) prototype will
follow a
PROPRIETARY
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development path similar to the basic units, and will have available for this
task the First Article Prototype from the previous major task element. As
before, Radar Systems Engineering will be conducted to analyze requirements and
create performance and equipment specifications for the new unit. Developmental
testing is included in this task.
The context and scope of this development are largely focused on the development
and incorporation of the [*] and on software to accommodate this unit. In
addition, there is significant imaging software development beyond the Phase 2
effort. The Seeker prototype unit will serve as the starting point for this
development. The resultant Imager will be very similar to the Seeker, and will
continue to have basic Seeker operational capability in addition to its new
imaging capability. Priority will be given in the Program to specifying and
1ocating appropriate [*], preferably at an early enough time in the Program to
design the basic Seeker Unit to accommodate future [*] with a minimum of
hardware modifications. The baseline plan for the [*] is to utilize a standard
commercial package. Preliminary investigation indicates that relatively low
performance requirements, combined with the ready availability of low cost,
small silicon-based accelerometers, make this a reasonable assumption.
A parallel development will be the nondeliverable Scissors Radar Test Bed
(SRTB). This unit is designed to be installed in the mine tunnel to scan
vertical tunnel walls. Its principles of operation are similar to the Gantry
Radar Test Bed (GTRB), except for the scanning geometry and areas of scan. The
SRTB design is complete as of this writing. These tools will be used in
Performance verification tests aiding in the definition and development of the
Imager.
Hardware and Software Design will then be carried out. The major hardware effort
is the development and integration of an inertial reference module that will
allow data taken from multiple test positions to be autonomously brought
together and processed into 3-D images. One Prototype Imager will be built and
checked out. Field trials will then commence. A modification iteration is
planned, based on trial results. Special Test Equipment will also be defined and
generated in support of this task. A Final Report covering the Imager Unit will
be generated.
4.3 Borehole Tomography Assessment & Demo
This element commences with Radar Systems Engineering to analytically select and
predict performance scenarios, and to document requirements in performance and
equipment specifications and test plans. Cyberdynamics Inc will be a major
subcontractor for this task. Suitable test sites will be selected and prepared
under this task.
Prototype Demo Hardware will be assembled in preparation for testing. To the
extent possible, this hardware will either be leased or drawn from company
inventory. Expected elements include a transmitter, a receiver with high speed
digitizer, winches, cables, computers, antennas, power source and conditioning,
and communications equipment. A parallel Software development effort will be
conducted.
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PROPRIETARY
-B6-
Field Trials will be conducted to assess the viability and competitiveness of
the borehole tomography concepts introduced into this Program. The element will
be concluded with a Final Report. No deliverable hardware is required for this
element.
4.4 Program Management
Overall management and reporting tasks are collected here. The Program Manager
will conduct periodic internal meetings in order to monitor and control the
Program. A series of Design Reviews is also planned. Monthly Reports will be
generated to provide the customer with adequate visibility into the Program.
Final Reports will be written for each of the three major elements of the
Program. Program Reviews will also be conducted on a monthly basis, and will
include detailed cost tracking and predictions.
5.0 Program Schedule
Major elements and milestones of the Phase 2 Program are shown in Figure 5.0-1.
A start date of 2 December, 1996 is assumed. Element 1, the basic Seeker Unit,
is a nine-month program through the prototype. The production of two additional
Seeker Units will be completed at the ten-month ARO point. The Imager Unit will
be complete by the eleventh month. The borehole tomography work will begin in
the ninth month and be the final element to be completed, for an overall Program
duration of 14 months.
PROPRIETARY
-B7-
XxxxXxx Xxxxx 0
Figure 5.0-1 Page 1
Chart summarizes the time table for Phase 3 of the LandRay Project.
-B8-
XxxxXxx Xxxxx 0
Figure 5.0-1 Page 2
Chart summarizes the time table for Phase 3 of the LandRay Project.
-B9-
Attachment I 12/2/96
Work Breakdown Structure Outline
LandRay Phase 3
1.0 Narrow Beam Radar Probe ("Seeker") Development
1.1 Radar Systems Engineering
1.1.1 Performance specification
1.1.2 Performance analysis and predictions
1.1.3 Equipment specifications
1.1.4 Performance verification tests (beyond Phase 2)
1.1.5 Test plans
1.2 Hardware Design
1.2.1 Brassboards
1.2.2 Antennas
1.2.3 Transmitter
1.2.4 Receiver & digitizer
1.2.5 Computational hardware
1.2.6 Display & controls
1.2.7 Power source and conditioning
1.2.8 Overall packaging
1.3 Software
1.3.1 Software requirements & specifications
1.3.2 Radar signal processing
1.3.3 Articulation control
1.3.4 Display software
1.4 First Article Prototype
1.4.1 Piece part procurement
1.4.2 Subcontracted assembly (PCB's included)
1.4.3 Final assembly
1.4.4 System integration & test
1.4.5 Temperature testing
1.4.6 Sandbox trials
1.4.7 Field trials
1.4.8 Design modifications
1.4.9 Final Report
PROPRIETARY
-B10-
1.5 Special Test Equipment
1.6 Follow-On Units (2 ea)
1.6.1 Piece part procurement
1.6.2 Subcontracted assembly
1.6.3 Final assembly
1.6.4 Unit checkout
Cost Estimate for 1.0, "Seeker"
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Direct Labor Subcontracted Materials & Total
(k$) Services Travel (k$)
(k$) (k$)
--------------------------------------------------------------------------
[*] [*] [*] [*]
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2.0 Imager Prototype
2.1 Radar Systems Engineering
2.1.1 Performance specification
2.1.2 Performance analysis and predictions
2.1.3 Equipment specifications
2.1.4 Scissors Radar Test Bed
2.1.5 Performance verification tests (beyond 1.0)
2.1.6 Test plans
2.2 Hardware Design
2.2.1 [*]
2.2.2 Display and controls
2.2.3 Misc. Seeker mods
2.3 Software
2.3.1 Software specification
2.3.2 [*]
2.3.3 Radar signal processing
2.3.4 Display and control
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* Confidential treatment has been requested as to portions of this agreement.
PROPRIETARY
-B11-
2.4 Prototype Imager(1)
2.4.1 Piece part procurement
2.4.2 Subcontracted assembly
2.4.3 Final assembly
2.4.4 System integration & test
2.4.5 Verification trials
2.4.6 Design mod documentation
2.5 Field Trials
2.6 Final Report
2.7 Special Test Equipment
Cost Estimate for 2.0. "Imager"
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Direct Labor Subcontracted Materials & Total
(k$) Services Travel (k$)
(k$) (k$)
--------------------------------------------------------------------------
[*] [*] [*] [*]
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3.0 Borehole Tomography Assessment & Demo
3.1 Radar Systems Engineering
3.1.1 Performance specification
3.1.2 Performance analysis and predictions
3.1.3 Equipment specifications
3.1.4 Test plans
3.1.5 Test site development
3.2 Prototype Demo Hardware
3.2.1 Transmitter
3.2.2 Winches
3.2.3 Cable
3.2.4 Computers
3.2.5 Receiver & digitizer
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* Confidential treatment has been requested as to portions of this agreement.
(1) Assumes use of first article prototype Seeker as hardware starting point
PROPRIETARY
-B12-
3.2.6 Antennas
3.2.7 Power source & conditioning
3.2.8 Communications
3.3 Software
3.3.1 Radar signal processing
3.3.2 Positioning control
3.3.3 Display
3.4 Field Trials
3.5 Final Report
Cost Estimate for 3.0, "Borehole"
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Direct Labor Subcontracted Materials & Total
(k$) Services Travel (k$)
(k$) (k$)
--------------------------------------------------------------------------
[*] [*] [*] [*]
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4.0 Program Management
4.1 Program Management
4.2 Program Administration
4.3 Design Reviews
4.4 Travel (excluding field trials)
4.5 Monthly Reports
4.6 Final Report Support
Total Program Cost Estimate
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Direct Labor Subcontracted Materials & Total
(k$) Services Travel (k$)
(k$) (k$)
--------------------------------------------------------------------------
[*] [*] [*] [*]
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* Confidential treatment has been requested as to portions of this agreement.
PROPRIETARY
-B13-
EXHIBIT C
LIST OF PATENTS
Power Spectra Patents
PSI has obtained a number of patents to protect its intellectual property
rights. PSI currently holds five (5) patents on its BASS(TM) devices. Current
BASS patents are:
1. Patent No. 4,782,222 - Bulk Avalanche Semiconductor Switch Using Partial
Light Penetration and Inducing Field Compression.
This patent forms the foundation for the BASS Mesa patent. This patent
describes the fundamental features of the BASS device, the use of light
absorption to generate electric-field enhancement within the device
structure. The effect is called field compression and results in the unique
performance of the Bass device. The term field compression is used along with
"bulk avalanche" to distinguish the BASS device from previous embellishments
of light triggered semiconductor switches. More specifically, the patent
describes a switch that uses an improved method of optically-triggered
avalanche breakdown which can produce pulses of 100 picoseconds or longer
duration and can deliver five kilovolts into fifty (50) ohms using a standard
laser diode.
Expiration date: November 1, 2005
2. Patent No. 4,864,119 - Bulk Avalanche Switch Using Mesa Structure
This patent describes a switch that can produce pulses of one hundred (100)
picoseconds or longer duration. The switch can deliver five (5) kilovolts
into fifty (50) ohms using standard laser diode. The patent also describes
the basic construction of the present BASS device and several derivative
constructions and is an embellishment of the bulk avalanche patent. The
design uses a mesa structure on top of the device to allow higher voltage
operation. Another important factor is the application of epitaxial regions
on the top and the bottom of the device.
Expiration date: September 5, 2006
3. Patent No. 4,438,331 - Bulk Semiconductor Switch
The patent describes a device for switching kilovolt level voltages in times
on the order of one (1) nanosecond or less, using optical radiation with
energy input of 10(-7) joules. This patent also describes a cryogenically
cooled semiconductor switch. The device is a surface conduction device that
uses laser triggering at two wavelengths. A short wavelength is used to
trigger conduction and a second, longer wavelength is used to aid in ram-off.
Expiration date: March 20, 2001
4. Patent No. 4,891,815 - Bulk Avalanche Semiconductor Laser
The patent describes a bulk semiconductor laser that uses optically triggered
avalanche conduction to initiate the lasing action in the bulk semiconductor.
Expiration date: January 2, 2007
5. Patent No. 4,494,011 - High Voltage Nanosecond Pulse Generator
This patent describes a high voltage pulse generator for producing at least
five hundred (500) kilowatts of power over two nanoseconds with short rise
time, using a high voltage avalanche source, a plurality of biased triode
amplifier robes and circuits and a voltage step-down transformer between any
two consecutive stages.
Expiration date: January 15, 2002
In addition to proprietary PSI process "know-how," the company has licenses
on key technologies and software as well as an exclusive, world-wide license for
its PSIristor technology. A license for several software patents, key to the
success of the mine finding radar development, was obtained in early 1996.
Furthermore, PSI believes and has experience to support its belief that it
will obtain additional hardware and system patents on its LandRay related
technology, as well as copyrights on LandRay related software. The company
expects to apply for and receive patents and copyrights as follows:
o [*]
o [*]
o [*]
o [*]
o [*]
o [*]
o [*]
o [*]
o [*]
Plus, the company anticipates additional patents and copyrights on other
advancements and extensions of its hardware and systems technology and know how.
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* Confidential treatment has been requested as to portions of this agreement.
EXHIBIT D
CONTRACT PRICE
Event Amount Payable
1. XxxxXxx, Xxxxx 0 Contract executed -- down payment of 1/3 $1,000,000
2. Each calendar quarter-end -- five quarterly progress reports 400,000
[Provided that PSI monthly progress reports and
quarterly reviews are made]
$3,000,000
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