Contribution Agreement between Nortel Networks NA Inc. and NETGEAR, Inc. dated March 10, 2000
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This agreement is between Nortel Networks NA Inc. (NNNAI) and NETGEAR, Inc., both Delaware corporations. It formalizes the transfer of certain assets, rights, and obligations from NNNAI to NETGEAR related to the NETGEAR business. The agreement outlines which assets and liabilities are included or excluded, addresses employee matters, and references related intellectual property and employee benefit agreements. The purpose is to affirm NETGEAR's ownership of its business operations and assets as it transitions from being a wholly-owned subsidiary of NNNAI.
EX-10.15 4 f65217a1ex10-15.txt EXHIBIT 10.15 1 Exhibit 10.15 CONTRIBUTION AGREEMENT THIS CONTRIBUTION AGREEMENT (this "Agreement"), entered into with effect as of the 10th day of March, 2000 (the "Effective Date") BY AND BETWEEN: NORTEL NETWORKS NA INC., a Delaware corporation with offices located at 4401 Great America Parkway, Santa Clara, CA 95052 (hereinafter referred to as "NNNAI") which is a wholly-owned subsidiary of Nortel Networks Inc. ("NNI"), which, in turn, is a wholly-owned subsidiary of Nortel Networks Corporation (hereinafter referred to as "NNC"). AND: NETGEAR, INC., a corporation organized and existing under the laws of Delaware, with offices located at 4401 Great America Parkway, Santa Clara, CA 95052 (hereinafter referred to as "NETGEAR"). WHEREAS, prior to the Effective Date, NETGEAR was a wholly-owned subsidiary of NNNAI; and WHEREAS, NNNAI wishes to affirm NETGEAR'S ownership of certain of NNNAI's rights and obligations in and to the assets and liabilities involved in the NETGEAR Business (as defined below), all as more specifically provided for herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, NNNAI and NETGEAR, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS Capitalized terms used in this Agreement are used as defined in this Article I or elsewhere in this Agreement. As used herein: "Affiliate" means, as to a specified individual or entity, any individual or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified individual or entity. For the purposes of this definition, "control" means the power to direct the management and policies of another, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agreement" has the meaning specified in the preamble hereof. "Assumed Contracts" has the meaning specified in Section 2.01(a). "Assumed Liabilities" has the meaning specified in Section 3.01. 1 2 "Company Material Adverse Effect" means a material adverse effect on the business, assets or financial condition of NETGEAR. "Components" means materials, components, assemblies or parts not originating with NNNAI or the NETGEAR Business. "Confidential Information" means any business, marketing, technical, scientific or other information that, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the Parties, exercising reasonable business judgment, to be confidential. Confidential Information includes, without limitation, the terms and conditions of this Agreement and information included in or related to Licensed Intellectual Property and Transferred Intellectual Property. "Effective Date" means the close of business on the date of this Agreement. "Employee Plans" means all incentive, deferred compensation, supplemental retirement, severance, pension, profit-sharing, retirement, health, welfare, insurance, or other employee benefit plans and all material arrangements, plans, programs and practices pertaining to compensation, bonuses, securities purchases, options, commissions, incentives, allowances, vacation, sick days, education assistance, leaves of absence, relocation and the like, for the benefit of current or former employees, that are currently maintained by such employee's employer, or with respect to which such employer currently has or in the future may have any material liability or obligation to contribute or to make payments. "Excluded Assets" has the meaning specified in Section 2.02. "Excluded Intellectual Property" has the meaning specified in the IP Agreement. "Generalized Searches" has the meaning specified in Section 4.03(a). "Improvement" has the meaning specified in the IP Agreement. "Intellectual Property Rights" means all patent rights, copyrights, mask work rights, confidential information rights, trademark, trade name, distinguishing guise, trade secret or know-how rights, all rights of whatsoever nature in computer software and data, and any other intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world and whether or not registered. Intellectual Property Rights shall also include all rights in any applications and granted registration for any of the foregoing rights. "IP Agreement" means the Intellectual Property License Agreement between NNNAI and NETGEAR dated as of the date hereof. "Knowledge," with respect to NNNAI, as applicable, means the actual knowledge of Michael Dadoun and Stephanie Brecher-Siegel; and, with respect to NETGEAR, means, as applicable, the actual knowledge of Patrick Lo and Richard Fabiano. "Licensed Intellectual Property" has the meaning specified in the IP Agreement. "Loaned Employee Benefits" means the Loaned Employee Agreement, effective as of the date hereof, by and between Nortel Networks Inc., NNNAI, NETGEAR and Netgear International, Inc. "LTD Benefits" has the meaning specified in Section 4.02(a). 2 3 "NETGEAR" has the meaning specified in the preamble hereof. "NETGEAR Assets" has the meaning specified in Section 2.01. "NETGEAR Business" means the business related to (i) the design, research, manufacture and development of NETGEAR Products by NETGEAR on or after the date hereof, or by NNC, NNI, NNNAI or NETGEAR before the date hereof; and (ii) the marketing, distribution and licensing of the NETGEAR Products by NETGEAR on or after the date hereof, or by NNC, NNI, NNNAI or NETGEAR before the date hereof. "NETGEAR Employees" means the employees of NNNAI ("NNNAI Employees") that are listed on Exhibit E and are hired by NETGEAR as of the Effective Date, as provided in Section 4.01, or, if applicable, immediately upon termination of STD Benefits, an NNNAI leave of absence or services under the Loaned Employee Agreement(s), as provided in Section 4.02(a), (c) and (d), respectively. "NETGEAR'S Employment Liabilities" has the meaning specified in Section 4.04(b). "NETGEAR Hire Date" means the date on which a NETGEAR Employee commences employment with NETGEAR, as provided in Section 4.01 or 4.02, as applicable. "NETGEAR Products" means the current products and products under development listed on Exhibit G. "NNNAI's Employment Liabilities" has the meaning specified in Section 4.04(a). "No Solicitation Period" has the meaning set forth in Section 4.03(a). "Other Marks" shall mean the marks identified and listed as "Other Marks" in Exhibit J. "Party" means NNNAI or NETGEAR, and Parties means both of them. "Patent Cross Licenses" shall mean those corporate cross license agreements with third parties entered into by NNC and listed in Exhibit A. "Product Licenses" means the Intellectual Property Rights granted in the ordinary distribution of products manufactured by the NETGEAR Business. "Retained Liabilities" has the meaning specified in Section 3.02. "Subsidiary" of a person means an entity in which that person effectively owns or controls, directly or indirectly, more than fifty percent (50%) of the voting stock or other ownership interest therein. "STD Benefits" has the meaning specified in Section 4.02(a). "Third Party Licenses" means licenses and other written agreements relating to the Intellectual Property Rights that are used in the NETGEAR Business, including those listed on Exhibit B, but not including the Patent Cross Licenses, Transferable Software Licenses, and the Product Licenses. 3 4 "Transferable Software License" means a license agreement for software licensed to NNNAI or its Affiliates that is installed on computers forming a part of the NETGEAR Assets, and that is either (i) freely assignable by its terms by NNNAI or its Affiliates to the NETGEAR or (ii) as to which all actions necessary to make such software license assignable by NNNAI or its Affiliates to NETGEAR as of the Effective Date have been taken, and that is identified as being a Transferable Software License on Exhibit L. "Transferred Intellectual Property" shall mean: (i) the Transferred Software; (ii) the Transferred Technical Information; and (iii) the Transferred Trademarks. "Transferred Software" shall mean the software and related documentation, and the copyright therein, owned by NNNAI or its Subsidiaries and used exclusively in the NETGEAR Business as of the Effective Date and listed in Exhibit H. "Transferred Technical Information" shall mean all prototypes, works in progress, related drawings, schematics, specifications, designs and agency approval files related to NETGEAR Products and all trade secrets which are embodied in any know-how, manufacturing specifications, processing procedures or research and development information owned by NNNAI and used exclusively in the NETGEAR Business as of the Effective Date, and listed in Exhibit I. "Transferred Trademarks" shall mean the marks identified and listed as "Transferred Trademarks in Exhibit J. ARTICLE II NETGEAR ASSETS Section 2.01. Transfers to NETGEAR. Subject to the terms and conditions hereof, including, without limitation, the exclusion from transfer under this Agreement of a portion of such assets as set forth in Section 2.02, NNNAI hereby transfers, conveys and assigns to NETGEAR, and NETGEAR hereby acquires, NNNAI's entire right, title and interest in, to and under all of the assets and properties described below (collectively, the "NETGEAR Assets"): (a) Assumed Contracts. Subject to Section 2.03, all of the contracts and subcontracts listed on Exhibit C, which relate to the sale, purchase, support, distribution or licensing of NETGEAR Products or related services (including services of independent contractors), or both, entered into in the course of the NETGEAR Business (collectively, the "Assumed Contracts"); (b) Records. Customer and prospective customer lists, business records, reports, plans, records, product specifications, training manuals, correspondence, regulatory reports and documents, maintenance schedules, operating and production records, business plans, marketing or other studies and other documents and data that were prepared by employees of NETGEAR and relate to the NETGEAR Business existing on the Effective Date; (c) Furniture, Fixtures, Inventory and Equipment. The furniture, fixtures, inventory and other equipment listed on Exhibit D; and (d) Intellectual Property. The Transferred Intellectual Property and the goodwill of the NETGEAR Business associated with the Transferred Trademarks, and any Intellectual Property Rights owned by NNNAI in the Other Marks and the goodwill of the NETGEAR Business associated with the Other Marks; and 4 5 (e) Transferable Software Licenses. The Transferable Software Licenses listed in Exhibit L. Section 2.02. Excluded Assets. The following assets (the "Excluded Assets") are specifically excluded from the NETGEAR Assets and any contribution or acquisition pursuant to this Agreement, whether or not they would otherwise be included in the NETGEAR Assets: (a) Excluded Contracts. Any and all agreements between NNNAI and the NNNAI Employees (whether or not they subsequently become the NETGEAR Employees), except as otherwise provided in Section 4.03, and any agreements primarily of general application to NNNAI and it Affiliates from which the NETGEAR Business has benefited, not listed on Exhibit C; (b) Excluded Intellectual Property. Any and all (i) Licensed Intellectual Property, (which are hereby excluded from NETGEAR Assets, but which are licensed to NETGEAR under the IP Agreement and governed by the terms thereof), (ii) Excluded Intellectual Property, and (iii) rights in any computer software other than the Transferable Software Licenses and the Transferred Intellectual Property; and (c) All Other Assets. All other technology, real property, personal property, agreements and all other assets owned, leased or otherwise possessed by NNNAI and/or its Affiliates, whether or not related to the NETGEAR Business, that are not listed in Section 2.01 as NETGEAR Assets, including without limitation, all copies of NNNAI personnel, benefits, medical and payroll records concerning the NNNAI Employees (whether or not they become the NETGEAR Employees). Section 2.03. Assignment of Contracts. Nothing in this Agreement shall be construed as an attempt to assign to NETGEAR any Assumed Contract that, as a matter of law or by its terms, is not assignable without the consent of any other party or parties, including any Assumed Contracts that do not permit a change of control of the NETGEAR Business such as that resulting from the consummation of the transactions provided for in this Agreement and other agreements executed by the Parties as of the date hereof, unless such consent has been obtained by NETGEAR in writing and a copy of such consent has been delivered to NNNAI. NNNAI shall provide reasonable assistance to NETGEAR in its efforts to obtain such consents. ARTICLE III ASSUMED LIABILITIES Section 3.01. Assumption of Liabilities by NETGEAR. Subject to the terms and conditions hereof, NETGEAR hereby assumes and agrees to pay and discharge all liabilities, costs or obligations arising on or after the Effective Date that are related to or arise under or in connection with the NETGEAR Assets, the NETGEAR Products and/or the NETGEAR Business, and certain other liabilities as set forth in this Section 3.01, (collectively, the "Assumed Liabilities"), as and when the same become due and payable and performance is required thereunder, including, without limitation the following, but only insofar as the events that give rise to such liability occur on or after the Effective Date: (a) any and all liabilities and obligations of any nature whatsoever, whether fixed or contingent, that arise from or relate to the ownership, manufacture, sale or use of the NETGEAR Assets or the NETGEAR Products, including, but not limited to, product liability, tort liability, intellectual property and warranty claims with respect to NETGEAR Products sold or services rendered on or after the Effective Date, and any liability for violations of statutes or breach of contract (including without limitation claims relating to Assumed Contracts); 5 6 (b) any and all liabilities and obligations of any nature whatsoever, whether fixed or contingent, that arise from or relate to the business and operations of NETGEAR; (c) all taxes (including without limitation deferred taxes) arising from the conduct of the NETGEAR Business, including personal property tax liability attributable to the NETGEAR Assets (except as otherwise provided in Section 3.02 hereof); (d) NETGEAR'S Employment Liabilities (except as otherwise provided in Section 4.06 hereof); (e) any liability relating to the bulk sales or bulk transfer law of any jurisdiction, except any liability payable in connection with the transactions contemplated hereunder or under the IP Agreement; and (f) any statutory liens on the NETGEAR Assets. (g) All accounts payable and accrued expenses of NETGEAR as of the Effective Date including but not limited to any inter-company accounts payable to NNNAI. Section 3.02. Liabilities Not Assumed. Except as otherwise provided in Article IV or Article IX hereof, or pursuant to any other written agreement between NETGEAR and NNNAI and/or its Affiliates, NETGEAR does not and shall not assume or agree to pay or discharge (i) any liability, cost or obligation where the events that gave rise to such liability occurred prior to the Effective Date, notwithstanding that such liability, cost or obligation may arise under or in connection with the NETGEAR Assets, the NETGEAR Products and/or the NETGEAR Business, and regardless of whether or not such liability, cost or obligation is recognized as a liability on any books of account, is absolute or contingent or measurable, or (ii) any sales, transfer and/or documentary taxes, if any, payable in connection with the asset transfer contemplated hereunder or under the IP Agreement ("Retained Liabilities"). The Retained Liabilities include, without limitation, income tax liabilities and trade payables related to the NETGEAR Business, the NETGEAR Products and the NETGEAR Assets incurred prior to the Effective Date. ARTICLE IV EMPLOYEES Section 4.01. NETGEAR Employees. Except as otherwise provided in Section 4.02, NETGEAR affirms that, that no less than seven (7) calendar days prior to the Effective Date, it made an offer of full time employment, as a sole employer or joint employer with a third party acceptable to NNNAI, to all of the NNNAI United States Employees by means of an offer letter, the form of which has been approved by NNNAI, upon terms and conditions reasonably acceptable to NNNAI. NETGEAR covenants and agrees that it, either solely or jointly with such third party, shall employ all NNNAI Employees who have accepted and satisfied those conditions set forth in such offer of employment, as of 12:00 a.m. on the day following the Effective Date, upon terms and conditions reasonably acceptable to NNNAI. Section 4.02 NNNAI Employees on Leave and on Loan. Notwithstanding anything contained in Section 4.01 to the contrary, NETGEAR'S obligations with respect to the offer of employment to, and employment of, the NNNAI Employees receiving NNNAI's short-term or long-term disability benefits, on an NNNAI-approved leave of absence or providing services under the Loaned Employee Agreements as of the Effective Date, are as follows: 6 7 (a) Employees Receiving Short-Term Disability Benefits. Any of the NNNAI Employees who, as of the Effective Date, are receiving benefits under the Nortel Networks Inc. Short-Term Disability Plan ("STD Benefits"), shall be offered full time employment by NETGEAR, as a sole employer or joint employer with a third party reasonably acceptable to NNNAI, as provided in this Section 4.02(a), and shall be employed by NETGEAR, either solely or jointly with such third party, at the time such disability benefits terminate, provided that such employees are released to return to work with accommodations, if any, which can be reasonably implemented by NETGEAR, prior to the commencement of long-term disability benefits under the Nortel Networks, Inc. Long-Term Disability Plan ("LTD Benefits"), and such employees have satisfied the conditions set forth in NETGEAR's offer of employment. No later than the day immediately following the Effective Date, NETGEAR shall offer such NNNAI Employees employment by means of an offer letter that is reasonably acceptable to NNNAI. NETGEAR shall have no responsibility or liability for payment of any STD Benefits of any such NNNAI Employees prior to their employment by NETGEAR in accordance with this Section 4.02(a). If any of such NNNAI Employees become NETGEAR Employees, the other provisions of this Article IV shall apply to such NETGEAR Employee. (b) Employees Receiving Long-Term Disability Benefits. NETGEAR shall have no obligation under Section 4.01 to offer employment to or to employ any of the NNNAI Employees who, as of the Effective Date, are receiving LTD Benefits, or to employ any of the NNNAI Employees who are receiving STD Benefits as of the Effective Date and proceed to receive LTD Benefits prior to being released to return to work. (c) Employees on Other NNNAI-Approved Leaves. Any of the NNNAI Employees who, as of the Effective Date, are on leave from employment under NNNAI's Family Care, Medical, Personal or Military Leave policies, but are not receiving STD Benefits or LTD Benefits, shall be offered employment by NETGEAR, as a sole employer or joint employer with a third party reasonably acceptable to NNNAI, as provided in this Section 4.02(c), and be employed by NETGEAR, either solely or jointly with such third party, at the time such leave terminates and such employees have satisfied the conditions set forth in NETGEAR's offer of employment, provided, however, that Netgear's obligation to offer employment will not extend to such employees who have already notified NNNA of their intention to resign at the end of their leave prior to the Effective Date. No later than the day following the Effective Date, NETGEAR shall offer such NNNAI Employees employment as provided in this Section 4.02(c) by means of an offer letter that is reasonably acceptable to NNNAI. If any of such NNNAI Employees become NETGEAR Employees, the other provisions of this Article IV shall apply to such NETGEAR Employees. (d) Employees on Loan. Any of the NNNAI Employees who, immediately upon the Effective Date, are supplying services to NETGEAR pursuant to the Loaned Employee Agreements, shall be offered employment by NETGEAR (as sole employer or joint employer with a third party reasonably acceptable to NNNAI) and be employed by NETGEAR (either solely or jointly with such third party) at the time that such employees cease to supply services under the Loaned Employee Agreements, provided that (i) such services ceased for the purpose of such employees commencing employment with NETGEAR and (ii) such employees have satisfied the conditions set forth in NETGEAR's offer of employment. NETGEAR shall offer, or in the case of European based employees, transfer such NNNAI Employees employment as provided in this Section 4.02(d) by means of an offer letter or in the case of European based employees by means of a notice of "transfer of undertaking" reasonably acceptable to NNNAI, to be delivered at a time determined by NNNAI. If any of such NNNAI Employees become NETGEAR Employees, the other provisions of this Article IV shall apply to such NETGEAR Employees. If any of such NNNAI Employees are receiving STD Benefits or on a leave of absence, as described in Section 4.02(a) and (c) respectively, when such employee's employment with NETGEAR pursuant to this Section 4.02(d) is scheduled to commence, the provisions of 7 8 Section 4.02(a) or (c), as applicable, shall apply to such employee, unless otherwise prohibited by local law. Section 4.03. No Solicitation of Employment. (a) No Solicitation by NNNAI. Unless otherwise agreed by NETGEAR, during the twelve (12) month period immediately following the Effective Date (the "No Solicitation Period"), neither NNNAI nor its Affiliates (other than NETGEAR) shall solicit for employment or hire any NETGEAR Employees who continue to be employed by NETGEAR or who have voluntarily terminated their employment with NETGEAR during the No Solicitation Period; provided, however, that nothing in this sub-section (a) shall prevent NNNAI or its Affiliates (other than NETGEAR) from (i) conducting generalized employment searches, by advertisements, engaging firms to conduct searches, or by other means ("Generalized Searches"), that are not focused on NETGEAR Employees or (ii) hiring any current or former NETGEAR Employees identified through such Generalized Searches. (b) No Solicitation by NETGEAR. Unless otherwise agreed to by NNNAI, during the No Solicitation Period, NETGEAR shall not solicit for employment or hire any employees of NNNAI or its Affiliates or former employees who voluntarily terminate their employment with NNNAI or its Affiliates during the No Solicitation Period; provided, however, that nothing in this sub-section (b) shall prevent NETGEAR from (i) conducting Generalized Searches that are not focused on employees of NNNAI or its Affiliates or (ii) hiring current or former employees of NNNAI or its Affiliates identified through such Generalized Searches. Section 4.04. Employment Matters Liabilities and Indemnification. (a) NNNAI's Employment Liabilities. Except as otherwise provided in the Loaned Employee Agreements or Section 4.04(b) hereof, NNNAI shall be liable for any and all liabilities and obligations of any nature whatsoever, whether fixed or contingent, known or unknown, with respect to any NETGEAR Employee, that exist or accrue prior to such employee's NETGEAR Hire Date and relate to NNNAI's employment or termination of employment of such employee, including without limitation, such liabilities and obligations with respect to wages, bonuses, workers compensation and benefits (collectively, "NNNAI's Employment Liabilities"). (b) NETGEAR'S Employment Liabilities. NETGEAR shall be liable for any and all liabilities and obligations of any nature whatsoever, whether fixed or contingent, known or unknown, that exist or accrue on or after the Effective Date and relate to NETGEAR'S: (A) offer of employment to, or failure to offer employment to, any NNNAI Employee in accordance with the terms of this Agreement, or (B) utilization of NNNAI's employees, agents or representatives to generate, assemble or deliver material related to NETGEAR'S employment offer pursuant to Section 4.01 or 4.02 or (C) with respect to any NETGEAR Employee, on or after such employee's NETGEAR Hire Date and relate to NETGEAR'S employment or termination of employment of such employee, including without limitation, such liabilities and obligations with respect to wages, bonuses, workers compensation and benefits (collectively, "NETGEAR'S Employment Liabilities"). ARTICLE V CONSIDERATION Section 5.01. Consideration. The consideration for the NETGEAR Assets and the Licensed Intellectual Property shall be paid and satisfied in full by the assumption by NETGEAR of the Assumed Liabilities. 8 9 ARTICLE VI TRANSFER Section 6.01. Transfer of NETGEAR Assets; Risk of Loss. The transfer of the NETGEAR Assets shall take place on the Effective Date. All risk of loss or damage with respect to the NETGEAR Assets shall be borne by NNNAI until 11:59 p.m. eastern daylight time on the day before the Effective Date, and thereafter shall be borne by NETGEAR. Section 6.02. Deletion of Non-Transferable Software. NETGEAR agrees that, following the Effective Date, it will (i) not use, and shall cause each of its Affiliates to not use, software loaded on the NETGEAR Assets as of the Effective Date other than software specifically transferred or licensed under this Contribution Agreement or the IP Agreement ("Unlicensed Software"); and (ii) as soon as reasonably practical and in any event no later than sixty (60) days following the Effective Date, delete or cause to be deleted all Unlicensed Software. ARTICLE VII REPRESENTATIONS AND WARRANTIES Section 7.01. Limited Representations and Warranties of NNNAI. (a) Recognizing that, immediately prior to the Effective Date, the officers of NETGEAR and the NETGEAR Employees were employees of NNNAI, and that some of the officers and employees of NETGEAR operated the NETGEAR Business immediately prior to the Effective Date, and are familiar with and have been involved with the creation of the NETGEAR Assets and the NETGEAR Products for NNNAI, NETGEAR hereby acknowledges that, except as expressly set forth herein, the NETGEAR Assets are being transferred by NNNAI under this Agreement "AS IS" AND "WHERE IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. (b) Notwithstanding the foregoing, NNNAI hereby represents and warrants to NETGEAR that: (i) Due Authorization. The transactions provided for under this Agreement have been duly authorized and approved by NNNAI and this Agreement has been duly executed and delivered by NNNAI; (ii) Assumed Contracts in Good Standing. NNNAI has performed in all material respects the obligations required to be performed by it under each Assumed Contract as it relates to the NETGEAR Business contributed by NNNAI; (iii) Good Title. NNNAI is transferring to NETGEAR good and valid title to the furniture, fixtures, inventory and equipment listed in Exhibit D, free and clear of all title defects, objections or other encumbrances, except (A) minor imperfections of title, if any, none of which is substantial in amount or materially impairs the use of the property subject thereto, that have arisen in the ordinary course of business consistent with past practice, (B) liens for current taxes not yet due, and (C) software incorporated therein; 9 10 (iv) Completeness of Assets. The NETGEAR Assets include all leases, contracts, furniture, fixtures, inventory and equipment used by NNNAI in the operation of the NETGEAR Business prior to the Effective Date, except for the Excluded Assets. (v) Employees and Labor Matters. NNNAI has paid in full, or shall pay in full when due, all salaries and other compensation for all services performed by each NETGEAR Employee that has accrued on or prior to such employee's NETGEAR Hire Date; (vi) NNNAI's Employee Plans. All of NNNAI's Employee Plans are in compliance in all material respects with requirements prescribed by all applicable laws. NNNAI has performed all material obligations required to be performed by it under all of its Employee Plans. There is not, to NNNAI's knowledge, any material written claim or dispute in respect of any of NNNAI's Employee Plans; (vii) Litigation. There is no action, suit or proceeding, or governmental inquiry or investigation, pending, or, to NNNAI's Knowledge, any threat thereof, against NETGEAR, that questions the validity of this Agreement or the right of NETGEAR or NNNAI to enter into it, or that might have, either individually or in the aggregate, a Company Material Adverse Effect, nor is there any litigation pending, or, to NNNAI's Knowledge, any threat thereof, against NNNAI or NETGEAR by reason of the proposed activities of NETGEAR or negotiations by NETGEAR and/or NNNAI or NNNAI with possible investors in NETGEAR. NETGEAR is not subject to any outstanding judgement, order or decree; (viii) Financial Statements. Set forth as Exhibit K hereto is a complete and correct copy of the income statements, statements of assets and liabilities and statements of cash flows (audited) of the NETGEAR Business as of and for the fiscal years ended December 31, 1996, 1997 and 1998 (the "Financial Statements"). Such Financial Statements include the assets, liabilities, revenues and expenses that were directly related to the NETGEAR Business, including expenses charged to the NETGEAR Business by NNNAI. Except as set forth on Exhibit K, the Financial Statements have been prepared in accordance with United States generally accepted accounting principles ("GAAP") consistently applied, are complete and correct and present fairly the financial condition and results of operations of the NETGEAR Business; (ix) Taxes. Except as set forth on Exhibit L, NETGEAR has not been required to file any federal, state, county, local or foreign tax returns, and any returns prepared by it or on its behalf are true and correct and all taxes have been timely paid with exceptions not material to NETGEAR. NETGEAR has had no employees prior to the NETGEAR Hire Date. Neither NETGEAR nor any of its stockholders has ever filed (a) an election pursuant to Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code"), that NETGEAR be taxed as an S Corporation or (b) consent pursuant to Section 341(f) of the Code relating to collapsible 10 11 corporations. With respect to any tax periods ending prior to the date hereof, NETGEAR is, and at all times has been, a member of the NNNAI-affiliated group (the "Affiliated Group") for Federal income tax purposes, and NETGEAR has no liability for any Federal, state or other tax liability asserted by the Internal Revenue Service or any other competent taxing authority or jurisdiction resulting from membership in the Affiliated Group or the preparation of the Affiliated Group's consolidated Federal income tax returns or otherwise; (x) Environmental Matters. There is no pending or, to the Knowledge of NNNAI, threatened civil or criminal litigation, written notice of violation, formal administrative proceeding, or investigation, inquiry or information request by any governmental entity, relating to environmental matters involving NETGEAR, including without limitation those arising under the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation, ordinance, order or decree relating to health, safety or the environment, which violation would have a Company Material Adverse Effect; (xi) Year 2000 Compliance. NNNAI represents and warrants that the NETGEAR Products, as they exist as of the Effective Date shall function, during the warranty period for such products, without any material, date-related service-affecting nonconformance to the applicable specifications; and (xii) Disclosures. Neither this Agreement nor any Exhibit hereto, nor any report, certificate or instrument furnished to NETGEAR or its counsel in connection with the transactions contemplated by this Agreement, when read together, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. Section 7.02. Limited Representations and Warranties of NNNAI Relating to Intellectual Property. NNNAI hereby represents and warrants to NETGEAR that: (a) Intellectual Property Rights. NNNAI owns the Transferred Intellectual Property, NNC owns the Licensed Intellectual Property, NNNAI has the right and ability to transfer, assign and grant the rights conveyed under this Agreement and NNC has the right and ability to grant the licenses under the IP Agreement; (b) except for the Intellectual Property Rights relating to (i) Components, (ii) the Third Party Licenses, (iii) the Transferable Software Licenses, and (iv) the Excluded Intellectual Property, to its Knowledge the Transferred Intellectual Property and the Licensed Intellectual Property comprise all Intellectual Property Rights that are material to the NETGEAR Business as conducted as of the Effective Date; 11 12 (c) except for the Patent Cross Licenses, the Third Party Licenses, the Product Licenses, Transferable Software Licenses, and employment agreements, to its Knowledge there is no other written agreement relating to the Transferred Intellectual Property that is material to the NETGEAR Business; (d) except as disclosed on Exhibit F, it has no Knowledge of any claims that have been made during the past two (2) years that the conduct of the NETGEAR Business infringes any Intellectual Property Right of any third person, and to its Knowledge, no such claims are threatened; (e) except as disclosed on Exhibit F, it has no Knowledge that the NETGEAR Business, as conducted as of the Effective Date, infringes or misappropriates any Intellectual Property Right of any third person; (f) except as disclosed on Exhibit F, it has no Knowledge of any claims, suits or actions against NETGEAR relating to the ownership, licensing or enforceability of the Transferred Intellectual Property or the Licensed Intellectual Property, and no such claims, suits or actions are threatened; and (g) it is NNNAI's practice to obtain assignments of Intellectual Property Rights from third parties who have participated in the creation of Intellectual Property used in the NETGEAR Business, and to its Knowledge such assignments were obtained from all third parties who participated in the creation of all Transferred Intellectual Property. Section 7.03. Survival of Obligations. The representations and warranties made by each Party in this Article VII shall continue in full force and effect for the benefit of the other Parties for a period of eighteen (18) months from and including the Effective Date, after which time each Party is released from all obligations and liabilities hereunder in respect of such representations and warranties, except with respect to claims made by any Party in writing prior to the expiration of such period; provided, however, that Section 7.01(b)(viii), Taxes, shall continue in full force and effect for the benefit of NETGEAR for a period of six (6) months beyond the statute of limitation applicable to such tax. ARTICLE VIII CONDITIONS OF CLOSING Section 8.01. Conditions Precedent to NNNAI's Obligations. NNNAI's obligations under this Agreement are subject to the satisfaction, as of the Effective Date, of the following condition, unless waived by NNNAI in writing: The full assumption by NETGEAR of the Assumed Liabilities as consideration for the NETGEAR Assets and the Licensed Intellectual Property pursuant to Section 5.01. ARTICLE IX INDEMNIFICATION Section 9.01. Indemnification by NNNAI. Subject to the provisions of this Article IX and Section 11.10 hereof, NNNAI hereby agrees to pay and indemnify fully, hold harmless and defend NETGEAR and its agents, directors, officers, partners, employees, servants, consultants, representatives, successors and assigns, from and against any and all damages, losses, 12 13 deficiencies, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) that result from, relate to or arise out of any and all actions, suits, proceedings, claims, demands, judgments or assessments or legal, administrative, arbitration, governmental or other proceedings or investigations (whether based on negligent acts or omissions, statutory liability, strict liability or otherwise) arising out of, relating to or based upon allegations of: (a) any inaccuracy or breach of any representation or warranty, or any nonfulfillment of any covenant or agreement of NNNAI contained in this Agreement or the IP Agreement, as applicable; (b) any Retained Liability; (c) any of NNNAI's Employment Liabilities; or (d) any and all actions, suits, proceedings, claims, demands, judgments, assessments, reasonable costs and expenses, incurred in investigating or attempting to avoid the foregoing or in enforcing this indemnity. Section 9.02. Indemnification by NETGEAR. From and after the Effective Date, subject to the provisions of this Article IX and Section 11.10 hereof, NETGEAR agrees to pay and indemnify fully, hold harmless and defend NNNAI and its Affiliates, agents, directors, officers, partners, employees, servants, consultants, representatives, successors and assigns, from and against any and all damages, losses, deficiencies, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) that result from, relate to or arise out of any and all actions, suits, proceedings, claims, demands, judgments or assessments or legal, administrative, arbitration, governmental or other proceedings or investigations (whether based on negligent acts or omissions, statutory liability, strict liability or otherwise) arising out of, relating to or based upon allegations of: (a) any non-fulfillment of any covenant or agreement of NETGEAR contained in this Agreement or the IP Agreement, as applicable; (b) any Assumed Liability; (c) any of NETGEAR'S Employment Liabilities; or (d) any and all actions, suits, proceedings, claims, demands, judgments, assessments, reasonable costs and expenses, incurred in investigating or attempting to avoid the foregoing or in enforcing this indemnity. Section 9.03. Method of Asserting Claims. The indemnified party ("Indemnitee") shall provide the indemnifying party ("Indemnitor") prompt notice in writing upon the Indemnitee becoming aware of any action, suit, proceeding, claim, demand, judgment or assessment for which the Indemnitor would be liable pursuant to Section 9.01 or Section 9.02 (a "Claim"), provided, however, that any failure to give such prompt notice shall not relieve the Indemnitor of its obligations hereunder. Indemnitor shall provide, at its sole cost and expense, for the defense of the Claim with legal counsel reasonably acceptable to Indemnitee. In addition, Indemnitee shall cooperate with Indemnitor, at Indemnitor's expense, in the defense or settlement of the Claim. Neither Indemnitee nor Indemnitor shall compromise or settle a Claim without the other party's prior written consent, which consent shall not be unreasonably withheld. Indemnitee may participate in the defense of a claim at its own expense. Notwithstanding the foregoing, if Indemnitee, in its reasonable discretion, determines that Indemnitor is not vigorously defending 13 14 the Claim, Indemnitee may hire additional legal counsel, at the sole cost and expense of Indemnitor, to assume the defense of the Claim. Section 9.04. Coordination of Indemnification Rights. (a) Indemnification Independent Right. Each right of a person to be indemnified, defended and/or held harmless pursuant to this Article IX is independent of such person's rights pursuant to any other Section of this Agreement and shall not be affected or limited in any way by any event or circumstance unless this Article IX expressly provides that such event or circumstance shall affect or limit such right of such person, regardless of whether or not such event or circumstance affects or limits any other right of such person or any right of any other person under this Article IX. (b) Right of Subrogation. In the event that an Indemnitee has a right of recovery against any third party with respect to any damages in connection with which a payment is made to such Indemnitee by an Indemnitor, then (i) such Indemnitor shall, to the extent of such payment, be subrogated to all of the rights of recovery of Indemnitee against such third party with respect to such damages and (ii) Indemnitee shall execute all papers required and take all action necessary to secure such rights, including, but not limited to, the execution of such documents as are necessary to enable such Indemnitor to bring suit to enforce such rights. Section 9.05. Limitation of Liability for Consequential Damages. Except as expressly provided in this Section 9.05, neither Party (including their Subsidiaries, Affiliates, shareholders, officers, contractors, directors, employees and agents) shall be liable for any special, indirect, incidental or consequential damages of any kind, including without limitation, damages arising from lost business, lost savings, lost data or lost profits, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if such party has been advised of the possibility of such damages. The foregoing exclusion of liability shall not apply where such damages arise out of or in connection with (i) an allegation that any NETGEAR Product or Improvement thereto infringes or violates any Intellectual Property Right of a third party, to the extent that such damages are payable to a third party, or (ii) disclosure of any Confidential Information, provided that: (a) the Indemnitee permits the Indemnitor to have complete carriage and control of the defense of the claim; (b) the Indemnitee cooperates fully with the Indemnitor in all aspects of the defense against the claim; (c) such damages are either actual damages finally awarded by a court of competent jurisdiction, or constitute a settlement approved in writing by the Indemnitor; (d) the Indemnitor shall not be liable for any portion of such damages arising from willful infringement by any party or constituting treble damages (except that an Indemnitor shall be liable for damages resulting from its own willful infringement); (e) the Indemnitee promptly pays all damages other than those for which the Indemnitor is responsible in accordance with the provisions of this Article IX; and (f) where the claim relates to a NETGEAR Product or Improvement as described at (i) above, provided additionally that: 14 15 (1) the Indemnitee modifies the NETGEAR Product or Improvement thereto within a reasonable time so as to avoid the allegation of infringement or violation of Intellectual Property Rights, if requested to do so by the Indemnitor; and (2) the NETGEAR Product or Improvement thereto has not been modified by any party after the Effective Date (A) so as to be a combination of a NETGEAR Product or Improvement thereto, with other hardware or software not constituting a NETGEAR Product or Improvement thereto, where such infringement or violation would not have arisen from the use of such NETGEAR Product or Improvement thereto or portion thereof standing alone; (B) in such a manner that the claim of infringement or violation of Intellectual Property Rights would not have occurred but for such modification, or (C) to be used in a manner or for a purpose not contemplated as of the Effective Date. Section 9.06. Overall Limitation of Liability of NNNAI under this Contribution Agreement. Notwithstanding anything herein to the contrary, the combined, cumulative liability of NNNAI under this Agreement shall not exceed an amount equal to Two Million US Dollars (US$2,000,000)(the "Overall Indemnity Cap"). ARTICLE X CONTINUING COVENANTS Section 10.01. Further Assurance and Cooperation. The parties shall from time to time and at all times hereafter make, do and execute or cause and procure to be made, done and executed all such further acts, deeds, conveyances, consents and assurances as may be required to carry out the transfer of the NETGEAR Assets, the Transferred Intellectual Property, and assumption of the Assumed Liabilities contemplated under this Agreement, including without limitation, appropriate assignments (notarized if required) for filing with any relevant government body or agency. If the parties agree that an asset that was intended by both of them to be an NETGEAR Asset as defined herein was inadvertently not listed on Exhibit C or Exhibit D hereto, the parties shall take such actions as may be required to properly convey such asset to NETGEAR hereunder, including without limitation execution of an amendment to this Agreement pursuant to Section 11.03 hereof to amend the schedules hereto. Section 10.02. Future Advertising and Sales Activities. NETGEAR shall identify itself as the owner of the NETGEAR Assets, and, as of the Effective Date, shall use the trade names and trademarks of NNNAI only as permitted pursuant to Article 8 of the IP Agreement. Section 10.03. Provision of Information to NNNAI. For so long as NNNAI owns at least fifty percent (50%) of the outstanding capital stock of NETGEAR (assuming conversion of any preferred shares), NETGEAR shall provide to the appropriate officers of NNNAI any information, financial or otherwise, reasonably requested by NNNAI (provided, however, that NETGEAR may require that NNNAI execute non-compete and non-disclosure agreements relating to any such information). Section 10.04. Confidential Information. For the term of this Agreement and for a period of ten (10) years thereafter, any Confidential Information of one Party (hereinafter "Disclosing Party") received by the other Party (hereinafter "Receiving Party") under this Agreement shall be used, disclosed, or copied, only for the purposes of, and only in accordance with, this Agreement. The Receiving Party shall use the same degree of care as it uses to protect its own Confidential Information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure or publication of the Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall only disclose Confidential Information to its employees, contractors, NNNAI users and third party sub licensees who need to obtain 15 16 access thereto consistent with such Party's rights under this Agreement. The Receiving Party shall not make or have made any copies of Confidential Information except those copies that are necessary for the purposes of this Agreement; and the Receiving Party shall affix to any copies it makes of the Confidential Information, all proprietary notices or legends affixed to the Confidential Information as they appear on the copies of the Confidential Information originally received from Disclosing Party. Neither Party shall be bound by any obligation restricting the disclosure and use of Confidential Information set forth in this Agreement, that: (a) is necessary to enable NETGEAR to provide specifications to suppliers for the procurement of materials, parts, components and assemblies for use in the manufacture, use or sale of NETGEAR Products; or (b) is necessary to enable NNNAI users purchasing, sublicensing or otherwise acquiring NETGEAR Products to operate and maintain such NETGEAR Products; or (c) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; or (d) was disclosed to the Receiving Party by a third party provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (e) is disclosed when such disclosure is required pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, subject to the Receiving Party using reasonable efforts to provide prior notice to the Disclosing Party to allow it to seek protective or other court orders; or (f) is disclosed, pursuant to a standard confidentiality agreement, to a potential purchaser, in connection with a possible acquisition of NETGEAR or substantially all of its assets, through an asset transaction, merger, stock transaction or otherwise; or (g) is disclosed in connection with a registration of securities of NETGEAR with the Securities and Exchange Commission. Within twenty (20) business days of the Disclosing Party's request, the Receiving Party shall return to the Disclosing Party all Confidential Information and all copies thereof (or such copies or portion of the Confidential Information as the Disclosing Party specifies), or, if so directed by the Disclosing Party, shall immediately destroy such Confidential Information and all copies thereof (or such copies or portion of the Confidential Information as the Disclosing Party specifies) and shall certify such destruction to the Disclosing Party. Each Party shall notify the other Party immediately upon learning of any unauthorized disclosure of the other Party's Confidential Information. ARTICLE XI MISCELLANEOUS Section 11.01. Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid or (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery, in each case to the intended recipient as set forth below: 16 17 If to NETGEAR, at 4401 Great America Parkway, MS: SC1-06, Santa Clara, CA 95052, Attention: President, or at such other address or addresses as may have been furnished in writing by NETGEAR to the other Parties hereto, with a copy to Stephanie Brecher-Seigal; or If to NNNAI, at 4401 Great America Parkway, MS: SC1-03, Santa Clara, CA 95052, Attention, Attention: Vice-President, Mergers & Acquisitions, or at such other address or addresses as may have been furnished to the other parties hereto in writing by NNNAI, with a copy to the Law Department at the same address; or Any party may give any notice, request, consent or other communication under this Agreement using any other means (including, without limitation, personal delivery, messenger service, telecopy, first class mail or electronic mail), but no such notice, request, consent or other communication shall be deemed to have been duly given unless and until it is actually received by the party for whom it is intended. Any party may change the address to which notices, requests, consents or other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Section. Section 11.02. Entire Agreement. This Agreement and the IP Agreement embody the complete Agreement and understanding of NETGEAR and NNNAI with respect to the subject matter hereof and thereof. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof. Section 11.03. Modification. No change or modification of this Agreement shall be of any force unless such change or modification is in writing and has been signed by the duly authorized representatives of the parties hereto. Section 11.04. Waivers. No waiver of any breach of any of the terms of this Agreement shall be effective unless such waiver is in writing and signed by the party against which such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach. Section 11.05. Severability. In the event that any provision of this Agreement is found to be invalid, voidable or unenforceable, the Parties agree that such invalidity, voidability or unenforceability shall affect neither the validity of this Agreement nor the remaining portions thereof, and that the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. Section 11.06. Governing Law. This Agreement shall be governed by and be construed in accordance with the laws of the State of California, without regard to principles of conflict of laws. Section 11.07. Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 11.08. Limitation on Rights of Others. No person other than a party hereto shall have any legal or equitable right, remedy or claim under or in respect of this Agreement. Section 11.09. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 17 18 Section 11.10. Legal Fees. If either party is required to take any action to enforce its rights under this Agreement, the prevailing party shall be entitled to its reasonable expenses, including attorneys' fees, incurred in connection with such action. 18 19 IN WITNESS HEREOF, the parties hereto have duly executed this Agreement as of the Effective Date. NORTEL NETWORKS NA INC. NETGEAR INC. By: /s/ Rick Tallman By: /s/ Patrick Lo ------------------- --------------- Name: Rick Tallman Name: Patrick Lo ------------------- --------------- Title: Assistant Secretary Title: CEO ------------------- --------------- 19 20 EXHIBIT A NORTEL NETWORKS' PATENT CROSS-LICENSES The following is a list of material Nortel Networks' patent cross-licenses. Captured material is all patents and applications (in all countries) owned or controlled by the Parties and their subsidiaries (at any time) during the capture period having a filing date before the end of the capture period.
In addition, the following is a material Nortel Networks' patent cross-license specifically relating to terminals. Captured material is patents and applications (in all countries) relating to apparatus, systems and methods for voice and data terminal equipment owned or controlled by the Parties and their subsidiaries (at any time) during the capture period having a filing date before the end of the capture period.
20 21 EXHIBIT B THIRD-PARTY LICENSES Third Party Licenses are used in the NETGEAR business associated with the following products:
21 22 PR356-56K ANALOG PHONE LINE ROUTER PRODUCT
RT210/211-ISDN ROUTER PRODUCT
RT328 ISDN ROUTER, RH348 ROUTER HUB, RT 338 ISDN 10/100 ROUTER, RM 356 56K MODEM/ROUTER W/4PT HUB, AND RT311 ETHERNET ROUTER PRODUCTS
ND508/520 NETWORK DISK DRIVE PRODUCTS
PS110/104/105 PRINT SERVER PRODUCTS
FA310-10/100MBPS PCI ETHERNET ADAPTER PRODUCT
FA311/312-10/100MBPS PCI ETHERNET ADAPTER PRODUCTS
22 23 - -------------------------------------------------------------------------------- 4.x, 5.x and SCO Unix and Linux drivers Lite-on Drivers for using the Communications National Chipset - -------------------------------------------------------------------------------- FA410 -- 10/100MBPS PCMCIA ETHERNET ADAPTER PRODUCTS - -------------------------------------------------------------------------------- Vendor Product Notes - -------------------------------------------------------------------------------- D-Link Windows Uses Abocom IC, manufactured by Cameo 95/98/2000/NT/Novell Client and NDIS 2 - -------------------------------------------------------------------------------- FA510 -- 10/100MBPS CARDBUS ETHERNET ADAPTER PRODUCTS - -------------------------------------------------------------------------------- Vendor Product Notes - -------------------------------------------------------------------------------- Ambicom Windows Manufactured by Ambicom 95/98/2000/NT/Novell Client and NDIS 2 - -------------------------------------------------------------------------------- GA620 -- GIGABIT ETHERNET FIBER PCI ADAPTER PRODUCT - -------------------------------------------------------------------------------- Vendor Product Notes - -------------------------------------------------------------------------------- Alteon Windows Websystems 98/2000/NT/Novell server 4.x, 5.x drivers - -------------------------------------------------------------------------------- EA101 -- USB 10MB ETHERNET ADAPTER PRODUCT - -------------------------------------------------------------------------------- Vendor Product Notes - -------------------------------------------------------------------------------- KLSI/AOX Windows 98/2000drivers Ethernet drivers for KSLI microcchip. - -------------------------------------------------------------------------------- EA201 -- ISA 10MB ETHERNET ADAPTER PRODUCT - -------------------------------------------------------------------------------- Vendor Product Notes - -------------------------------------------------------------------------------- D-Link Windows 95/98/2000/NT/Novell client, 3.x, 4.x, 5.x and NDIS2 and SCO Unix drivers - -------------------------------------------------------------------------------- 23 24 PRODUCTS UNDER DEVELOPMENT - ------------------------------------------------------------------------------- GA620T - GIGABIT ETHERNET 1000BASE-T TWISTED PAIR PCI ADAPTER PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- WAXXX - PCI TO WIRELESS 11MB ADAPTER PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- WBXXX - WIRELESS 11MB TO ETHERNET BRIDGE PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- WAXXX - PCMCIA TO WIRELESS 11MB ADAPTER PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- RD381 - ADSL (G.LITE) INTEGRATED DSL ROUTER AND FULL RATE ADSL ROUTER. - -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- RT3XX - FIREWALL ROUTER PRODUCT - -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- NDXXX - AUDIO/VIDEO JUKEBOX PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- PS1XX 3 PORT AND 1 PORT PRINT SERVER PRODUCT - -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- 24 25 ADDITIONAL 3RD PARTY SOFTWARE IS CURRENTLY USED BY NETGEAR EMPLOYEES FOR THE FOLLOWING TASKS: SOFTWARE DEVELOPMENT - -------------------- RedHat 5.2 and 6.0 (Linux) which includes the following: g++ C/C+ compiler Perl. Telnet, FTP. Apache Web Server. Microsoft Visual C/C++ Professional. HARDWARE DEVELOPMENT - -------------------- ORCAD FIRMWARE DEVELOPMENT - -------------------- Microsoft Visual C++ Premia Codewright Professional Edition Clear Case THE FOLLOWING SOFTWARE IS USED BY NETGEAR IN THE PC DESKTOP ENVIRONMENT: VENDOR APPLICATION ADOBE ACROBAT READER FRAME FRAMEMAKER TECHNOLOGY MCAFEE VIRUSSCAN FOR WIN95 MICROSOFT EXCEL MICROSOFT EXCEL 97 MICROSOFT FRONTPAGE MICROSOFT INTERNET EXPLORER MICROSOFT INTERNET EXPLORER MICROSOFT MS-DOS MICROSOFT OUTLOOK 97 MICROSOFT POWERPOINT 97 MICROSOFT PROJECT 98 MICROSOFT SCHEDULE + MICROSOFT TEAM MEMBER MICROSOFT VISUAL BASIC MICROSOFT VISUAL C++ MICROSOFT WINDOWS 95 MICROSOFT WINDOWS NT MICROSOFT WORD 97 NICO MAK WINZIP PETER NORTON NORTON COMMANDER COMPUTING VISO CORP. VISIO PROF. V5.0 USED IN OPERATIONS SUPPORT: Netcom Smartbit Applications 25 26 SOFTWARE APPLICATIONS - ------------------------------------------------------ Email Outlook Eudora Office Suite Microsoft Office Word Excel PowerPoint OS Windows 95 Anti-virus Norton Antivirus Archive/Compression WINZIP Browser Netscape Microsoft IE Reporting Impromptu Web Publishing TeamSite Frontpage Graphics editing PhotoShop Project Management Microsoft Project Tech Publications Framemaker Adobe Illustrator Enterprise SunSystems (Systems Union) Oracle Unix/Solaris Reporting Impromptu Vision 27 CIRCUIT CITY CMS LIMITED COMPUSHACK GMBH COMPUTER 2000 BELGIUM COMPUTER 2000 FINLAND OY COMPUTER 2000 UK CSK ELECTRONICS CORPORATION DAIL INFORMATION COMM. DATATEL S.A. DATRONTECH RETAIL PLC DELTA ELECTRONICS INC. DEUTCHE TELECOM DIGITAL NETWORK SVCS DEUTCH D-LINK CORPORATION DUXBURY NETWORKING DIST. EGGHEAD, INC ELECTRONICA SANG HNOS., S.A. EXPRESS DATA EXPRESS DATA (aka ComTech) FRY'S ELECTRONICS FUJI XEROX CO., LTD. GALILEO TECHNOLOGIES GANDALF DATA GATEWAY COMPUTER RESOURCES HELTEL LIMITED IEE IMS IMS HONG KONG INGRAM DENMARK INGRAM MACROTRON AG INGRAM MEXICO INGRAM MICRO INGRAM MICRO ASIA LTD. INGRAM MICRO CANADA INGRAM MICRO CHILE S.A. INGRAM MICRO EUROPE AG INGRAM MICRO NORWAY INTEC INFORMATION TECHNOLOGY INTERMEMORY CORP INTERVALLE SA KANSAI ELECTRIC CO. LTD KODO INFORMATION & COMMUNICATION LATAM COMPUSER CORP. LDL DISTRIBUTION (CHINA) LTD LINK INTERNATIONAL LITE-ON MARUBENI SOLUTIONS CORP. MEI/MICRO CENTER MICRO PERIPHERALS LTD. MICROSTANDARD DISTRIBUTORS INC MITSUI COMTEK CORP MPS MAYORISTA, S.A. DE C.V. NETEKS A.S. NETSERVE, INC 28 28 NETWORK VALUE COMPONENTS NETWORLD, INC. NYHERJI HF PC WAREHOUSE INC. POULIADIS ASSOCIATES CORP. POWER & TELEPHONE SUPPLY, INC. RAMCO SYSTEMS RIGHTNET SEICOM COMMUNICATION SYSTEMS SEICOM SUBDISTRIBUTOR SISTEMAS DATASYS C.A. SOFTWAY SA STONE COMPUTER LTD. SUNDAYNET SUNKYONG DISTRIBUTION LIMITED SYNNEX TD BRASIL, LTDA TECH DATA TECH DATA CANADA TECH PACIFIC AUSTRALIA PTY. LTD TECH PACIFIC NZ TECHNOLOGY SOLUTIONS GROUP INC TECHNOSS S.A. TECKSEL TELECTRONIC S.A. TELIA SYSTEMS AB TERRA CORPORATION UNISEL S.A. WESTCON BRASIL LTDA. Development: SLIMWARE - Contractor Agreement ADTRAN - License Agreement REALM - License Agreement PHILIP PELLOUCHOUD - Contractor Agreement [NOTE: ABOVE SEEMS TO BE MISSING AGREEMENTS IMPLIED BY OTHER SUBMISSIONS RELATING TO: ADOBE - LICENSE AGREEMENT BROADCOM - LICENSE AGREEMENT CICAT NETWORKS - CONTRACTOR AGREEMENT INSTALLSHIELD - LICENSE AGREEMENT IDOC - CONTRACTOR AGREEMENT KLSI/AOX - LICENSE AGREEMENT MICROSOFT - LICENSE AGREEMENT RAGULA - MAINTENANCE AND DISTRIBUTION AGREEMENT RAMP - LICENSE AGREEMENT XYLOGICS - LICENSE AGREEMENT ZYXEL - OEM LICENSE AGREEMENT NATIONAL SEMICONDUCTOR - LICENSE AGREEMENT LEASE AGREEMENTS FOR DELL PCS NOTED IN OWNED ASSET LIST.] Misc. agreements: 29 29 EXECUTIVE OFFICE LEASE -- NEW JERSEY AUTO LEASES: FRANCE, GERMANY (2), SWEDEN Assignment of Rights of Gearguy in Gearland Agreement Between Mark Fischer and Bay Networks, Inc., dated February 1998. 30 30 EXHIBIT D FURNITURE, FIXTURES, INVENTORY AND EQUIPMENT
31 31
32 32
33 33
34 34
35 35
36 36 EXHIBIT E CERTAIN NNNA EMPLOYEES
37 37 EXHIBIT F CLAIMS RELATED TO INTELLECTUAL PROPERTY 1. Infringement claims: None. 2. Knowledge of infringement or misappropriation: None. 3. Claims relating to ownership, licensing or enforceability: None. 38 38 EXHIBIT H TRANSFERRED SOFTWARE Transferred Software includes the software, firmware and related documentation owned by NNNAI or any of its Subsidiaries, and used exclusively in the NETGEAR Business and which is incorporated in the following products:
42 39
43 40 EXHIBIT I TRANSFERRED TECHNICAL INFORMATION Transferred Technical Information includes all drawings, schematics, specifications, functional descriptions, application engineering support systems, design documents, feature documents, engineering manuals, assembly drawings, stock lists, part drawings, procurement information specifications, component information, inspection information, design change control procedures, specifications for finishes, and quality assurance procedures, all trade secrets embodied in any know-how, manufacturing specifications, processing procedures or research and development information, and agency approval files related to the NETGEAR Products listed below which are owned by NNNAI and which used exclusively in the NETGEAR Business as of the Effective Date: CURRENT NETGEAR PRODUCTS
1 41
2 42 3 43 EXHIBIT J TRANSFERRED TRADE MARKS
OTHER MARKS NETGEAR Logo The Gearguy in Gearland FirstGEAR netgear.com netgearinc.com 5 44 EXHIBIT K FINANCIAL STATEMENTS A substantial portion of the Financial Statements for Netgear, Inc. has been re-stated to reflect its stand-alone status. 6 45 EXHIBIT L TRANSFERABLE SOFTWARE LICENSES None 7
